R. v. Morrison

R. v. Morrison
Collection
Supreme Court Judgments
Date
2019-03-15
Neutral citation
2019 SCC 15
Report
[2019] 2 SCR 3
Case number
37687
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Ontario
Subjects
Constitutional law
Notes
Case in brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3
Appeal Heard: May 24, 2018 Judgment Rendered: March 15, 2019 Docket: 37687
Between:
Her Majesty The Queen
Appellant/Respondent on cross-appeal
and
Douglas Morrison
Respondent/Appellant on cross-appeal
- and -
Attorney General of Canada, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta and Criminal Lawyers’ Association (Ontario)
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 160)
Moldaver J. (Wagner C.J. and Gascon, Côté, Brown, Rowe and Martin JJ. concurring)
Concurring Reasons: (paras. 161 to194)
Karakatsanis J.
Reasons Dissenting in Part: (paras. 195 to 227)
Abella J.
R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3
Her Majesty The Queen Appellant/Respondent on cross‑appeal
v.
Douglas Morrison Respondent/Appellant on cross‑appeal
and
Attorney General of Canada,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Saskatchewan,
Attorney General of Alberta and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Morrison
2019 SCC 15
File No.: 37687.
2018: May 24; 2019: March 15.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Presumption of innocence — Child luring — Police sting operation — Presumption of belief regarding age — Accused charged with child luring after communicating online with police officer posing as 14-year-old girl — Accused contesting constitutionality of Criminal Code provision establishing presumption that if person with whom he was communicating was represented to him as being underage, he believed representation absent evidence to the contrary — Whether presumption infringes accused’s right to be presumed innocent — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d) — Criminal Code, R.S.C. 1985, c. C-46, s. 172.1(3) .
Constitutional law — Charter of Rights — Right to liberty — Fundamental justice — Child luring — Police sting operation — Accused charged with child luring after communicating online with police officer posing as 14-year-old girl — Accused contesting constitutionality of Criminal Code provision barring him from raising as defence that he believed person with whom he was communicating was of legal age unless he took reasonable steps to ascertain person’s age — Whether reasonable steps requirement deprives accused of liberty in violation of principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C-46, s. 172.1(4) .
M posted an advertisement online in the “Casual Encounters” section on Craigslist, with the title “Daddy looking for his little girl — m4w — 45 (Brampton)”. A police officer, posing as a 14-year-old girl named Mia, responded to the ad. In conversations taking place over the span of more than two months, M invited “Mia” to touch herself sexually and proposed that they meet to engage in sexual activity. These communications led to M being charged with child luring under s. 172.1(1) (b) of the Criminal Code , which prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 16 for the purposes of facilitating the commission of certain designated offences against that person — here, the offence of invitation to sexual touching directed at a person under the age of 16 contrary to s. 152 of the Criminal Code .
At trial, M challenged the constitutionality of three subsections of the child luring provisions: s. 172.1(2) (a), (3) , and (4) of the Criminal Code . First, he argued that s. 172.1(3) (which provides that if the person with whom the accused was communicating (“other person”) was represented to the accused as being underage, then the accused is presumed to have believed that representation absent evidence to the contrary) violated his right to be presumed innocent under s. 11 (d) of the Charter . Second, he argued that s. 172.1(4) (which bars an accused from raising, as a defence, that he or she believed the other person was of legal age, unless the accused took reasonable steps to ascertain the other person’s age) violated his rights under ss. 7 and 11 (d) of the Charter . Third, he argued that s. 172.1(2) (a) (which prescribes a mandatory minimum sentence of one year’s imprisonment if the Crown proceeds by way of indictment) violated his right not to be subjected to cruel and unusual punishment under s. 12 of the Charter . The trial judge accepted M’s submission with respect to s. 172.1(3) and held it to be of no force and effect. However, he held that s. 172.1(4) complied with the Charter and was constitutionally valid, and he convicted M on the basis that he had not taken reasonable steps to ascertain “Mia’s” age. At sentencing, he concluded that the mandatory minimum under s. 172.1(2) (a) was grossly disproportionate when applied to M and therefore violated s. 12 of the Charter . He sentenced M to four months’ imprisonment and probation for a year. The Ontario Court of Appeal unanimously upheld M’s conviction and sentence and each of the trial judge’s conclusions on the three constitutional questions. The Crown appeals the Court of Appeal’s decision with respect to s. 172.1(2) (a) and (3) . M cross-appeals, now submitting that s. 172.1(4) is unconstitutional because it allows for a conviction on the basis of objective fault, notwithstanding the high stigma and severe punishment attached to a conviction for child luring, thereby violating the principles of fundamental justice under s. 7 of the Charter .
Held (Abella J. dissenting in part): The appeal and cross-appeal should be allowed in part. Section 172.1(3) of the Criminal Code should be declared to be of no force or effect. The accused’s conviction should be set aside and a new trial should be ordered.
Per Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ.: Section 172.1(3) of the Criminal Code infringes s. 11 (d) of the Charter , and that infringement cannot be saved under s. 1 . It is therefore of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982 . Section 172.1(4) of the Criminal Code does not infringe s. 7 of the Charter . However, the lower courts erred in their reading of the reasonable steps requirement under s. 172.1(4) , and therefore M’s conviction should be set aside and a new trial should be ordered. In view of the lower courts’ errors with respect to the reasonable steps requirement, any final determination as to the constitutionality of s. 172.1(2) (a) should be remitted to the presiding judge at M’s new trial, should he be convicted again.
The presumption under s. 172.1(3) of the Criminal Code offends s. 11 (d) of the Charter . In the context of a sting operation where there is no underage person, s. 172.1(1) (b) of the Criminal Code stipulates that in order to secure a conviction, the Crown must prove beyond a reasonable doubt that, among other things, the accused believed the other person was under the age of 16. Subsection 172.1(3) , however, creates a presumption that proof that the other person was represented to the accused as being under 16 will, absent evidence to the contrary, stand in for proof of the essential element that the accused believed the other person was under 16. A presumption will comply with s. 11 (d) of the Charter solely if proof of the substituted fact leads inexorably to the existence of the essential element it replaces. The nexus requirement for demonstrating that a statutory presumption does not offend the presumption of innocence is strict: the connection between proof of the substituted fact and the existence of the essential element it replaces must be nothing less than inexorable. An inexorable link is one that necessarily holds true in all cases. Here, the mere fact that a representation of age was made to the accused does not lead inexorably to the conclusion that the accused believed that representation, even absent evidence to the contrary. Where a representation of age is made online, the trier of fact could still be left with a reasonable doubt at the close of the Crown’s case as to whether the accused believed the other person was underage — despite this, the accused’s belief that the other person was underage would be deemed to be established beyond a reasonable doubt by virtue of s. 172.1(3) . This contravenes the presumption of innocence.
The infringement of s. 11 (d) of the Charter by s. 172.1(3) of the Criminal Code cannot be justified under s. 1 of the Charter . The parties agree that s. 172.1(3) has a pressing and substantial objective and the Charter limit it creates is rationally connected to that objective. However, it fails the minimal impairment test. The Crown has failed to establish that, absent the presumption, the child luring provision cannot operate effectively. Where the other person is represented to the accused as being underage, the trier of fact can, on the basis of evidence, draw a logical, common sense inference that the accused believed that representation. In addition, the deleterious effects of the presumption outweigh its salutary effects. Although the presumption may ease the Crown’s burden of proving its case, prosecutorial convenience and expediency cannot justify the risk of convicting the innocent that it creates.
The reasonable steps requirement under s. 172.1(4) of the Criminal Code does not violate s. 7 of the Charter . This requirement does not, in the absence of the presumption under s. 172.1(3) , allow for a conviction where the Crown has only proven that the accused failed to take reasonable steps to ascertain the other person’s age, contrary to the approach taken by the trial judge and endorsed by the Court of Appeal. Rather, there is only one pathway to conviction available: the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage. By expressly including a presumption under s. 172.1(3) as to the accused’s belief in this regard — albeit a presumption which has been found to be unconstitutional — Parliament signalled that the requirement of proving belief is essential in the context of a police sting operation where there is no underage person. Subsection 172.1(4) does not make this requirement any less essential. In the absence of the presumption under s. 172.1(3) , it bars accused persons from raising, as a defence, that they believed the other person was of legal age where they failed to take reasonable steps to ascertain the other person’s age. Consequently, if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then the trier of fact is precluded from considering the defence that the accused believed the other person to be of legal age. But that does not relieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage. Thus, if the trier of fact can only conclude from the evidence that the accused was negligent or reckless with regard to the other person’s age, the Crown has not met its burden, and the accused is entitled to an acquittal, since negligence and recklessness are states of mind that do not entail any concrete belief about the other person’s age. An accused cannot be convicted merely for failing to establish a defence; rather, a conviction will be sustained only where the Crown is able to negate a properly raised defence and show, on the evidence as a whole, that all of the essential elements of the offence in question have been proved beyond a reasonable doubt. In the case of child luring, s. 172.1(4) does not create a situation in which an accused may be convicted on the basis of simple negligence — namely, in this context, a failure to take reasonable steps. Rather, only subjective mens rea — in this case, belief — will suffice. In the instant case, the trial judge entered a guilty verdict on a basis that was legally unsound — he found M guilty on the basis that he had failed to take reasonable steps to ascertain “Mia’s” age. For the trial judge to have properly convicted M, he would have had to be satisfied beyond a reasonable doubt that M believed “Mia” was under the age of 16.
In the absence of s. 172.1(3) , which has been found to be of no force and effect, the Crown can no longer secure a conviction in the context of a police sting where there is no underage person by proving that the accused failed to take reasonable steps to ascertain the other person’s age once a representation as to age was made. Instead, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage. To meet its burden, the Crown must show that the accused either (1) believed the other person was underage or (2) was wilfully blind as to whether the other person was underage. The second alternative is legally equivalent to the first. Conversely, a showing that the accused was merely reckless, rather than wilfully blind, as to whether the other person was underage will not ground a conviction. The “reasonable steps” that the accused is required to take under s. 172.1(4) are steps that a reasonable person, in the circumstances known to the accused at the time, would take to ascertain the other person’s age. The reasonable steps requirement therefore has both objective and subjective dimensions: the steps must be objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. Reasonable steps are meaningful steps that provide information reasonably capable of supporting the accused’s belief that the other person was of legal age. Relatedly, if the accused takes some initial steps that could reasonably support a belief that the other person is of legal age, but red flags are subsequently raised suggesting he or she may not be, then the accused may be required to take additional steps to ascertain the other person’s age. The requirement is an ongoing one. Reasonable steps need not be active. There is no compelling reason, whether in a sting context or otherwise, for foreclosing the notion that arguably passive conduct — such as the receipt and consideration of unsolicited information — could provide information reasonably capable of supporting the accused’s belief that the other person was of legal age. Further, the accused is not required to exhaust all potential reasonable steps in order to invoke the defence. The reasonable steps requirement should be applied with a healthy dose of common sense. The approach to assessing reasonable steps is a highly contextual one that accounts for the setting in which the communications take place: the Internet.
Accordingly, the defence that the accused believed the other person was of legal age operates in practice as follows: (1) in order to raise the defence, the accused bears the evidentiary burden of pointing to some evidence from which it may be found that he or she took reasonable steps and honestly believed the other person was of legal age — the accused must show that the defence has an air of reality; (2) if the accused discharges his or her evidentiary burden, the defence is left with the trier of fact, and the Crown then bears the persuasive burden of disproving the defence beyond a reasonable doubt; and (3) regardless of whether the defence can be considered, the trier of fact must ultimately determine whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage. Thus, whether the accused is convicted or acquitted does not hinge on whether the accused took reasonable steps; it hinges on whether the Crown can prove culpable belief beyond a reasonable doubt. Where an accused has failed to take reasonable steps, the trial judge must instruct the jury that the accused’s evidence that he or she believed the other person was of legal age cannot be considered in determining whether the Crown has proven its case beyond a reasonable doubt. Where reasonable steps have not been taken, an accused’s evidence that he or she believed the other person was of legal age is without any value, and the jury cannot rely on that evidence when assessing the strength of the Crown’s case. In that event, the sole question the jury must consider is whether — on the whole of the evidence, including the evidence relating to the accused’s failure to take reasonable steps — the Crown has established, beyond a reasonable doubt, that the accused believed the other person was underage.
It would be unwise to rule on the constitutional validity of the mandatory minimum under s. 172.1(2) (a) of the Criminal Code in this appeal since the courts below proceeded on the mistaken understanding that M could be convicted on the basis of his failure to take reasonable steps, and their conclusions on the s. 12 issue rested, at least in part, on this mistaken understanding. Furthermore, the parties did not have the opportunity to make submissions on this matter with the benefit of a clear statement from the Court as to the mens rea required for a conviction.
Per Karakatsanis J.: There is agreement with the majority regarding the proper interpretation and constitutionality of ss. 172.1(3) and (4) of the Criminal Code and that the conviction should be set aside and a new trial ordered. However, it is incumbent on the Court to address the issue of the constitutionality of the mandatory minimum punishment set out in s. 172.1(2) (a) of the Criminal Code in this case. Otherwise M, as well as other individuals convicted of a child luring offence by way of indictment, may find themselves subject to a mandatory minimum sentence that is constitutionally unsound.
The mandatory minimum sentence in s. 172.1(2) (a) violates s. 12 of the Charter and is not saved by s. 1 . Section 172.1(2) (a) should therefore be declared to be of no force and effect under s. 52 of the Constitution Act, 1982 . To determine whether a mandatory minimum sentence imposes a grossly disproportionate punishment and thereby qualifies as cruel and unusual punishment, the mandatory minimum sentence for the relevant offence is compared to the fit and proportionate sentence that would otherwise be mandated by the sentencing principles found in the Criminal Code . If, in a reasonably foreseeable case, imposing the mandatory minimum would result in a grossly disproportionate sentence, then the mandatory minimum violates s. 12 . When assessing a mandatory minimum in the context of reasonably foreseeable cases, it will often be helpful to consider previously reported cases. In addition, judges should be guided by their judicial experience and need not limit their inquiry to only the facts of reported cases. The thrust of the s. 12 inquiry focuses on reasonably foreseeable applications of the law. Courts are required to consider the scope of the offence, the types of activities it penalizes and the reasonably foreseeable circumstances in which it may arise.
Given the gravity of the offence of child luring, there is no doubt that, in many cases, the appropriate sentence will be a term of imprisonment that falls within the range contemplated by s. 172.1(2) (a). However, the offence casts a wide net since it can be committed in various ways, under a broad array of circumstances and by individuals with a wide range of moral culpability. This increases the likelihood of the provision catching individuals whose conduct will not warrant punishment remotely close to that required by the mandatory minimum sentence. Indeed, the s. 172.1(1) jurisprudence demonstrates that the fit and proportionate sentence can be significantly less than the one-year mandatory minimum term of imprisonment required by the Criminal Code .
Furthermore, s. 172.1(1) is a hybrid offence with a disparity between the mandatory minimum sentences for individuals guilty of child luring on summary conviction and those guilty on indictment. This strongly suggests that the one-year mandatory minimum for an individual guilty of child luring on indictment violates s. 12 of the Charter . The 90‑day mandatory minimum for summary conviction offences clearly demonstrates that Parliament understood that, in certain circumstances, a sentence far below that required by the one-year mandatory minimum would be appropriate. Sentencing someone to one year in jail when the fit and proportionate sentence would be 90 days or less is intolerable and would be shocking to Canadians. It is a cruel and unusual punishment that violates s. 12 of the Charter and does not represent a justifiable infringement under s. 1 of the Charter .
Per Abella J. (dissenting in part): M’s conviction should be set aside and an acquittal ordered.
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. Striking down the presumption under s. 172.1(3) does not eliminate a second, objective path to conviction since under s. 172.1(4) , a conviction is available if the Crown proves beyond a reasonable doubt that the accused failed to take reasonable steps to ascertain the communicant’s age.
To constitute child luring, the accused must believe the communicant to be a child. Given the anonymous and unverifiable nature of online identities, the requirement to take “reasonable steps” to ascertain age in s. 172.1(4) 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. The result of the reasonable steps requirement in s. 172.1(4) is therefore to render illusory the accused’s ability to allege an honest but mistaken belief in age. This constitutes an interference with the accused’s fundamental right to make full answer and defence under s. 7 and the presumption of innocence under s. 11 (d). Section 172.1(4) cannot be saved under s. 1 of the Charter , since the harmful effects of the reasonable steps requirement outweigh any salutary impact.
Cases Cited
By Moldaver J.
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; considered: R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; referred to: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Audet, [1996] 2 S.C.R. 171; R. v. Pengelley, 2010 ONSC 5488, 261 C.C.C. (3d) 93; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Logan, [1990] 2 S.C.R. 731; R. v. Creighton, [1993] 3 S.C.R. 3; British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873; R. v. S. (W.D.), [1994] 3 S.C.R. 521; Attorney General of Quebec v. Carrières Ste‑Thérèse Ltée, [1985] 1 S.C.R. 831; Canada (Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; Sansregret v. The Queen, [1985] 1 S.C.R. 570; United States of America v. Dynar, [1997] 2 S.C.R. 462; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; R. v. Ghotra, 2016 ONSC 1324, 334 C.C.C. (3d) 222; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Park, [1995] 2 S.C.R. 836; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Smith, [1987] 1 S.C.R. 1045; Miller v. The Queen, [1977] 2 S.C.R. 680; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. EJB, 2018 ABCA 239, 72 Alta. L.R. (6th) 29; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269.
By Karakatsanis J.
Referred to: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Jarvis (2006), 211 C.C.C. (3d) 20; R. v. Folino, 2005 ONCA 258, 77 O.R. (3d) 641; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193; R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70; R. v. S. (S.), 2014 ONCJ 184, 307 C.R.R. (2d) 147; R. v. Crant, 2017 ONCJ 192; R. v. Read, 2008 ONCJ 732; R. v. Dehesh, [2010] O.J. No. 2817; R. v. El‑Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293; R. v. B. and S., 2014 BCPC 94; R. v. Danielson, 2013 ABPC 26; R. v. Pelletier, 2013 QCCQ 10486.
By Abella J. (dissenting in part)
R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; United States of America v. Dynar, [1997] 2 S.C.R. 462; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Saliba, 2013 ONCA 661, 304 C.C.C. (3d) 133; R. v. Duran, 2013 ONCA 343, 306 O.A.C. 301; R. v. P. (L.T.) (1997), 113 C.C.C. (3d) 42; R. v. Sinclair, 2013 ABQB 745, 92 Alta. L.R. (5th) 64; R. v. Malcolm, 2000 MBCA 77, 148 Man. R. (2d) 143; R. v. Darrach (1998), 38 O.R. (3d) 1; R. v. Cornejo (2003), 68 O.R. (3d) 117; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481; R. v. Pengelley, 2010 ONSC 5488, 261 C.C.C. (3d) 93; R. v. Osborne (1992), 102 Nfld. & P.E.I.R. 194; R. v. Mastel, 2011 SKCA 16, 268 C.C.C. (3d) 224; R. v. Adams, 2016 ABQB 648, 45 Alta. L.R. (6th) 171; R. v. Bayat, 2011 ONCA 778, 108 O.R. (3d) 420; R. v. Froese, 2015 ONSC 1075.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d), 12 .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 150.1(4) , (5) , 152 , 172.1 , (1) [am. 2012, c. 1, s. 22], (2) [am. 2012, c. 1, s. 22], 273.2(b), 686(1)(b)(iii), 718, 718.1.
Authors Cited
Cairns Way, Rosemary. “Bill C‑49 and the Politics of Constitutionalized Fault” (1993), 42 U.N.B.L.J. 325.
Manning, Mewett & Sankoff: Criminal Law, 5th ed., by Morris Manning and Peter Sankoff. Markham, Ont.: LexisNexis, 2015.
Stewart, Hamish C. “Legare: Mens Rea Matters” (2010), 70 C.R. (6th) 12.
Stewart, Hamish C. Sexual Offences in Canadian Law. Aurora, Ont.: Canada Law Book, 2004 (loose‑leaf updated March 2018, release 32).
Stuart, Don. Canadian Criminal Law: A Treatise, 7th ed. Toronto: Carswell, 2014.
Roach, Kent. Criminal Law, 7th ed. Toronto: Irwin Law, 2018.
APPEAL and CROSS‑APPEAL from a judgment of the Court of Appeal for Ontario (Watt, van Rensburg and Pardu JJ.), 2017 ONCA 582, 350 C.C.C. (3d) 161, 385 C.R.R. (2d) 45, 136 O.R. (3d) 545, [2017] O.J. No. 3600 (QL), 2017 CarswellOnt 10363 (WL Can.), affirming the conviction entered and the sentence imposed by Gage J., 2015 ONCJ 598, 341 C.R.R. (2d) 25, [2015] O.J. No. 4650 (QL), 2015 CarswellOnt 13610 (WL Can.) and 2015 ONCJ 599, [2015] O.J. No. 5620 (QL), 2015 CarswellOnt 16408 (WL Can.). Appeal and cross-appeal allowed in part, Abella J. dissenting in part.
Andreea Baiasu, for the appellant/respondent on cross‑appeal.
Mark C. Halfyard, Salvatore Caramanna and Breana Vandebeek, for the respondent/appellant on cross‑appeal.
Jeffrey G. Johnston, for the intervener the Attorney General of Canada.
Sylvain Leboeuf and Julie Dassylva, for the intervener the Attorney General of Quebec.
Lara Vizsolyi, for the intervener the Attorney General of British Columbia.
W. Dean Sinclair, Q.C., for the intervener the Attorney General of Saskatchewan.
Deborah Alford, for the intervener the Attorney General of Alberta.
Apple Newton‑Smith, Daniel Brown and Colleen McKeown, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. was delivered by
Moldaver J. —
I. Overview
[1] In today’s information age, Canadian life is increasingly playing out in the digital realm. The Internet, social media, and sophisticated mobile devices — now fixtures in our everyday lives — have transformed the way in which we live, work, and interact with one another. This opens up a world of new opportunities and allows us to connect instantly with friends and family across the world, whenever and wherever we want, and at relatively little cost.
[2] But the Internet revolution — and the Internet itself — has a darker side. Increasingly, sexual predators are using electronic means to prey upon one of the most vulnerable groups within Canadian society: our children. Access to the Internet among Canadian children is now almost universal, and many are continuously connected, whether through a computer, a smartphone, or another device. This has led to the new and distressing phenomenon of predators lurking in cyberspace, cloaked in anonymity, using online communications as a tool for meeting and grooming children with a view to sexually exploiting them.
[3] In response, Parliament has enacted provisions in the Criminal Code, R.S.C. 1985, c. C-46 (“Code ”), aimed at prohibiting child luring through telecommunications and ensuring that those who breach this prohibition receive a punishment that reflects the gravity and seriousness of the offence and the high degree of moral blameworthiness associated with it. These provisions were the subject of this Court’s decisions in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, and R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, although in neither case was their constitutionality in issue. Here, however, the question on appeal is whether these provisions infringe the accused’s rights under the Canadian Charter of Rights and Freedoms (“Charter ”).
[4] The respondent, Douglas Morrison, posted an advertisement in the “Casual Encounters” section of Craigslist, with the title “Daddy looking for his little girl – m4w – 45 (Brampton)”. A police officer, posing as a 14-year-old girl named “Mia”, responded to the ad. In conversations taking place over the span of more than two months, Mr. Morrison invited “Mia” to touch herself sexually and proposed that they meet to engage in sexual activity. These communications led to Mr. Morrison being charged with child luring under s. 172.1(1) (b) of the Code . That provision prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 16 for the purpose of facilitating the commission of certain designated offences against that person — here, the offence of invitation to sexual touching directed at a person under the age of 16 contrary to s. 152 of the Code .
[5] At trial, Mr. Morrison challenged the constitutionality of three subsections of the child luring provisions: s. 172.1(2) (a), (3) , and (4) . His position on each is set out below in capsule form.
[6] First, s. 172.1(3) provides that if the person with whom the accused was communicating (hereinafter referred to as “the other person”) was represented to the accused as being underage, then the accused is presumed to have believed that representation, absent evidence to the contrary. Mr. Morrison argued that this subsection violated his right to be presumed innocent under s. 11 (d) of the Charter .
[7] Second, s. 172.1(4) bars an accused from raising, as a defence, that he or she believed the other person was of legal age, unless the accused took reasonable steps to ascertain the other person’s age. At trial, Mr. Morrison asserted that s. 172.1(4) violated ss. 7 and 11 (d) of the Charter . Before the Court of Appeal and this Court, he argued that s. 172.1(4) was unconstitutional because it allows for a conviction on the basis of objective fault, notwithstanding the high stigma and severe punishment attached to a conviction for child luring, thereby violating the principles of fundamental justice under s. 7 of the Charter .
[8] Third, s. 172.1(2)(a) prescribes a mandatory minimum sentence of one year’s imprisonment if the Crown proceeds by way of indictment — the election made by the Crown in Mr. Morrison’s case. Mr. Morrison argued that this mandatory minimum violated his right not to be subjected to cruel and unusual punishment under s. 12 of the Charter .
[9] The trial judge agreed with Mr. Morrison that the presumption under s. 172.1(3) violated his right to be presumed innocent under s. 11 (d) of the Charter . He disagreed, however, that the reasonable steps requirement under s. 172.1(4) was constitutionally invalid. Despite being left with a reasonable doubt as to whether Mr. Morrison believed “Mia” was under the age of 16, the trial judge held that subs. (4) provided an independent pathway to conviction and convicted Mr. Morrison on the basis that he had not taken reasonable steps to ascertain “Mia’s” age. At sentencing, the trial judge concluded that the mandatory minimum under s. 172.1(2) (a) was grossly disproportionate when applied to Mr. Morrison and therefore violated s. 12 of the Charter . In the result, he sentenced Mr. Morrison to four months’ imprisonment and probation for a year. On appeal, the Ontario Court of Appeal upheld Mr. Morrison’s conviction and sentence and each of the trial judge’s conclusions on the three constitutional questions outlined above.
[10] Before this Court, the Crown appeals from the decision of the Court of Appeal, submitting that the court erred in holding that the presumption under s. 172.1(3) violates s. 11 (d) of the Charter and that the mandatory minimum under s. 172.1(2) (a) infringes s. 12 of the Charter . Mr. Morrison cross-appeals, asserting that the Court of Appeal erred in finding that the reasonable steps requirement under s. 172.1(4) does not infringe s. 7 of the Charter .
[11] For the reasons that follow, I would dismiss the Crown’s appeal on the s. 172.1(3) issue and Mr. Morrison’s cross-appeal on the s. 172.1(4) issue. In my view, the presumption under subs. (3) infringes s. 11 (d) of the Charter and cannot be saved under s. 1 . Further, I agree with the courts below that subs. (4) does not violate s. 7 of the Charter .
[12] However, unlike the courts below, I do not read the reasonable steps requirement under subs. (4), in the absence of the presumption under subs. (3), as providing an independent pathway to conviction. Instead, it simply bars accused persons from raising, as a defence, that they believed the other person was of legal age when they did not take reasonable steps to ascertain the other person’s age.
[13] Consequently, in order to convict Mr. Morrison, the Crown would have had to satisfy the trial judge beyond a reasonable doubt that Mr. Morrison believed “Mia” was under the age of 16. But because the trial judge was left with a reasonable doubt in this regard, Mr. Morrison’s conviction cannot stand.
[14] As for the question of remedy, given that the trial judge entertained a reasonable doubt on the issue of Mr. Morrison’s belief, Mr. Morrison would ordinarily be entitled to an acquittal. But in this case, for reasons I will develop, I am of the view that fairness considerations militate in favour of a new trial — one conducted in accordance with the correct legal framework.
[15] Finally, the courts below proceeded on an incorrect understanding that s. 172.1 allows for a conviction based on a failure to take reasonable steps. The parties’ arguments before this Court concerning the constitutionality of the mandatory minimum reflect the erroneous assumption flowing from this: namely, that mere negligence is sufficient to support a conviction (something that the trial judge gave effect to in sentencing Mr. Morrison). In light of this, I am of the view that it would be unwise to decide whether the one-year mandatory minimum under s. 172.1(2)(a) runs afoul of s. 12 of the Charter on this appeal. Accordingly, I would set aside that aspect of the Court of Appeal’s decision and remit the matter to the presiding judge at the new trial, should Mr. Morrison be convicted again.
II. Statutory Provisions
[16] Section 172.1 of the Code contains four components, each housed in its own subsection. Those components, and the corresponding subsections, are: (1) a prohibition against child luring; (2) the punishments available on conviction; (3) a presumption regarding the accused’s belief in the other person’s age; and (4) a limitation on the defence that the accused believed the other person was of legal age.
Luring a child
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152 , subsection 160(3) or 173(2) or section 271 , 272 , 273 or 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
Punishment
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Presumption re age
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
No defence
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourtee