Canadian Criminal Law/Offences/Child Luring

Proof of Offence
172.1(1)(a) The crown should prove the following elements:
 * 1) accused communicated by means of a computer system (see s. 342.1(2))
 * 2) the accused communicated to a person who
 * 3) is under the age of 18 or
 * 4) is believed to be under the age of 18
 * 5) accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically section 153(1), 155 or 163.1, 212(1) or (4), 271, 272 or 273)

172.1(1)(b) The crown should prove the following elements:
 * 1) accused communicated by means of a computer system (see s. 342.1(2))
 * 2) the accused communicated to a person who
 * 3) is under the age of 16 or
 * 4) is believed to be under the age of 16
 * 5) accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically section 151, 152, 160(3) or 173(2) or 280)

172.1(1)(c) The crown should prove the following elements:
 * 1) accused communicated by means of a computer system (see s. 342.1(2))
 * 2) the accused communicated to a person who
 * 3) is under the age of 14 or
 * 4) is believed to be under the age of 14
 * 5) accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically s. 281)

Interpretation
The purpose of s.172.1 is to “shut that door on predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents. Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer “chats” — and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person.”

This is an “inchoate” offence that is separate and apart from the sexual offence that it precedes. It does not require the sexual offence to have happened. This includes not requiring that the accused actually go to meet the victim in person. Nor is it necessary for the accused to be “objectively capable” to commit the secondary offence.

Purpose of Facilitating an Offence
It is not criminal to engage in sexually explicit chats with an underage person unless the prohibited purpose is established beyond a reasonable doubt.

The intent must be specific to the objective and must be determined subjectively.

Facilitating can include actions that help “bring about or [make] easier or more probable the commission of such an offence, by grooming or reducing the inhibitions of a young person or by exploiting their curiosity, immaturity or precocious sexuality”.

The contents of the messages can be used but are not determinative of a sexual purpose. The issue must be determined on the evidence as a whole.

Reasonable steps to ascertain age
Under s. 172.1, the accused can only claim to have believed the alleged victim was not of a prohibited age where he took reasonable steps to ascertain the age of the victim. This is to foreclose any any defence based on claims of the accused without any objective evidential basis.

Typical Defences

 * If under s.172.1(1)(a) and the secondary offence is under s. 163.1, the defence of “private use”
 * Mistaken belief of age
 * Entrapment

Related provisions

 * s.486 - the judge may order the exclusion of members of the public

Cases

 * R v Pengelley, -- acquitted based on the evidence that the child’s account showed a picture of someone in their 20s.

History
On August 9, 2012, the section was amended to include a mandatory minimum of 90 days on summary conviction and 1 year on indictable election.