The Supreme Court of Canada in 2019 clarified the law regarding the requirements to convict someone for child luring under the Criminal Code. The decision, R v. Morrison, has implications for people who may be inadmissible to Canada for serious criminality.
Section 172.1(1) of the Criminal Code prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 18, 16 or 14 (depending on the circumstances) for the purposes of facilitating the commission of certain designated offences against that person, such as sexual offences.
Prior to R v. Morrison, the law was that if someone told someone else they were underage, the law presumed the person believed it. The only exception was if there was evidence that the person didn’t believe it. All the judges at the Supreme Court agreed that this violated the right to be presumed innocent.
As a result, in the context of a police sting where there is no underage person, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person.
The Crown cannot secure a conviction 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 this 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.
Wilful blindness exists where an accused’s “suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.” This can be contrasted with recklessness, which refers to the state of mind of a person who, “aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk.”