Criminal Law

SCC ruling makes child-luring laws 'fairer to accused'

By Peter Small, Contributor

The Supreme Court of Canada (SCC) has taken an important step forward in striking down a section of the internet child-luring law that presumed defendants guilty unless proved otherwise, Toronto criminal lawyer Joseph Neuberger tells

"I think it’s an excellent decision,” says Neuberger, partner with Neuberger & Partners LLP.

"The playing field is much fairer to an accused. You will not be in a situation of convicting somebody where you could really have a reasonable doubt.”

Under s.172.1(3) of the Criminal Code, an internet child-luring defendant was presumed to believe the person they were communicating with was underage if that’s how they identified themselves.

However, the Supreme Court upheld a lower court ruling that this provision offends the Charter because it contravenes the presumption of innocence.

"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,” Justice Michael Moldaver wrote for the majority.

The burden still lies with the Crown to prove beyond a reasonable doubt that the accused believed the other person was underage, he wrote.

Neuberger calls this "a very important step forward and a very good recognition of how the Crown has to prosecute the case.”

The decision focused on police sting operations where an officer poses as a child and there is no real victim, Neuberger says. "It’s very good that they have now declared unconstitutional the provision deeming knowledge that the person is underage simply because the officer or the person communicating has sent a message with age.”

The court ordered a new trial for the defendant, who posted an ad online entitled, "Daddy looking for his little girl.”

A police officer responded, posing as a 14-year-old girl named "Mia.” The accused had sexual conversations with "Mia” for more than two months and suggested they meet to engage in sex acts, according to the ruling.

In his defence, the man claimed he thought he was talking to an adult woman who was only pretending to be 14.

He challenged the constitutionality of several sections of the child-luring law, including its mandatory minimum sentence of one year if the Crown proceeds by way of indictment.

However, the court declined to rule on this sentencing issue, which is unfortunate, Neuberger says.

The court felt it did not have a complete record to make a proper determination as to whether the mandatory minimum is a cruel and unusual punishment, Neuberger says.

"I beg to differ. It would be in line with previous Supreme Court rulings to find the mandatory minimums unconstitutional," he says, adding that by declining to deal with the issue, the court forces defendants and their lawyers to challenge it anew. "For some people, it’s a financial challenge, and it’s an access-to-justice issue.”

Neuberger is representing two people separately accused of child luring and, if they are found guilty, he will challenge the constitutionality of the mandatory minimums, he says. "It's a shame that we have to do this from scratch again."

These sentences have no place in our criminal justice system except for extraordinary cases, Neuberger says.

"Mandatory minimums just rob judges of discretion and eliminate individual sentencing, and I think that's highly inappropriate,” he says.

In its decision, the court upheld a section of the law that denies a defendant the right to claim that he believed the person he was communicating with was of age unless he can prove he took all "reasonable steps" to find out.

Neuberger says this provision does not trouble him because the court confirmed that the Crown bears the burden of establishing that the accused had actual knowledge that the victim was underage or was wilfully blind to the fact.

"If they're able to establish that the person has affirmed the information they received and therefore is imbued with that knowledge, the reasonable steps to me is immaterial because you've established that the person has the knowledge or is therefore wilfully blind and they can be convicted.”

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