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Internet Child Luring Charge

internet-child-luring-charge

The offence of Child Luring causes incredible worry and embarrassment. A person facing a child luring charge is more often than not looking for help not just with respect to the defence of the charge but also for help with the underlying cause of the activity. All is not lost; in these cases, there is help available on all fronts.

It is crucial that every individual charged with child luring consult and retain with counsel experienced in defending these charges as soon as possible. Defence counsel can make submissions to persuade the Crown to elect summarily thus limiting exposure. Counsel will look for all defences to the substantive charge and weaknesses in the Crown’s case. If necessary, counsel will prepare and present sentencing submissions to ensure that the lowest sentence is imposed.

Facts

The steps leading up to a charge of internet child luring is often quite similar from case to case.

SCENARIO 1:

A police officer (posing as a female teenager) will begin to exchange communications with an unknown person over the internet. At some point in time, the officer will send a communication revealing her age as 13 or some age under the age of 14. The communications continue thereafter and will more and more discuss sexual activity. At some point, when the officer is of the view that the time is right a suggestion to meet at a public place will be arranged. When the person (now suspect) attends at that pre-arranged meeting he is arrested. The computer used for the communications are often the subject of a subsequent search warrant and will reveal the source and content of communications from the other end.

SCENARIO 2: (NOTE – NOT ALL CASES INVOLVE POLICE OFFICERS POSING AS A YOUNG TEENAGER)

There are many cases for example where a young person embarks on communication on the internet and a parent or guardian somehow discovers the exchange and reports the matter to police.

It is important that any person suspected of, being investigated for, or charged with the offence of Luring contact a lawyer immediately. The team of lawyers at Daley Byers has experience defending these charges.

EVIDENCE TO SUPPORT THE CHARGE

The criminal defence to a child luring charge requires an analysis of all communications, the sufficiency of the search warrant or the premise on which the search was made, and the possible issue of identity. If statements have been made to police after detention, the admissibility of those statements in evidence must also be determined. Identity of the accused (connecting him to the communications) can in some cases present a problem for the Crown. The onus is on the Crown attorney to prove beyond reasonable doubt that the accused person was the person who in fact made the communications. Can the Crown prove that he and only he had sole access to the computer?

The issue of connecting the accused to the particular use of the computer is also relevant in charges relating to possession of child pornography cases. I recently defended a client charged with possession of child pornography where the computer was seized but the Crown could not establish that my client had sole access to the computer. Therefore it was plausible that someone else had downloaded the pictures in issue and as a result the Crown could not prove the case beyond a reasonable doubt.

In child luring cases, the accused person is not like your common criminal and most often they have never had any involvement with the criminal justice system. They have an overwhelming feeling of guilt and commonly wish to “get it off of their chest” upon arrest. It is always been my advice, not provide any statement at all. The police are trained on how to elicit confessions. They can use any means other than inducement, coercion or threat. They can lie or play on a person’s emotions. If an inculpatory statement has been made, defence counsel will try to have it excluded as not being voluntary or because of a failure to provide timely and/or adequate rights to counsel.

DEFENCES TO CHILD LURING

“I BELIEVED SHE WAS OLDER”

s.272.1(3) and s. 272.1(4) deal with the defence where the accused person states that they believed the complainant to be older.
s. 272.1(3) states that once the accused has received representations that the person is under the appropriate age, that in and of itself is prima facie proof that the accused believed that the person was under the appropriate age subject to evidence to the contrary. What this means is that the defence “I believed she was older” is not available in cases where the accused has received any representation that the accused is underage, unless the accused presents “evidence to the contrary” to show why he believed otherwise.

Furthermore:
s.272.1(4) states that in order to present the defence that “I believed she was older”, the accused must establish that he took reasonable steps to determine the age of the person.

Luring is an offence where belief as to age is an essential element of the charge. If the evidence supports the fact that the complainant represented to the accused that he/she was under the relevant age, this is considered in absence of evidence to the contrary proof that the accused believed that the person was under that age.

Furthermore, it is not a defence that the accused believed that the complainant was at least the appropriate years of age unless the accused took reasonable steps to ascertain the age of the person.

Facebook, text messaging, and email are common means used in the commission of this offence. All of these require proof that it was in fact the accused person that sent the messages. For example, even though a text message may have originated from a certain phone, that in and of itself is not proof that the owner of the phone sent the message. The onus is on the Crown to prove all elements of the charge beyond reasonable doubt and every person is innocent until proven guilty.

It is important that any person suspected of, being investigated for, or charged with the offence of Luring contact a lawyer immediately.

SENTENCING

In Child Luring cases the Crown has discretion as to which process it wishes to follow: to proceed by way of indictment or to proceed by way of summary conviction. This decision is crucial to the accused.

“”If the Crown elects to proceed by indictment, the minimum sentence is 1 year. There is no discretion available to the trial judge to impose less, and subject to constitutional challenge there is no house arrest option. The Judge must impose the minimum. The maximum sentence is 10 years if the Crown proceeds by indictment.

If the Crown elects to proceed by way of summary conviction the minimum sentence is 90 days and the maximum sentence is 18 months. Again, wherever the Criminal Code imposes a minimum sentence, the Judge is not permitted to impose house arrest (subject of course to constitutional challenge)””.

The mandatory minimum sentence provisions in the criminal code with respect to Child Luring have recently been struck down as unconstitutional by the Ontario Court of appeal.  As a result it is now open to the Judge to impose whatever sentence he/she deems appropriate.

However it remains which way the Crown elects to proceed. It is imperative that the defence counsel present a case to encourage the Crown to elect to proceed by way of summary procedure.

It is often helpful when dealing with the issue of sentence to present psychological evidence supporting that remorse is evident, counseling has been undertaken and that there is a low risk of recurrence. Defence counsel experienced in this area will have psychologists available for referral for their clients.

S.O.I.R.A. (SEXUAL OFFENDER INFORMATION REGISTRY ACT)

A person convicted of child luring will be subject to a SOIRA order requiring them to register under the Sexual Offender Information Registry Act. S. 490.012 as of April 2011 made it mandatory for a judge to impose the SOIRA order in every case involving a conviction for child luring.

490.013 (1) An order made under section 490.012 begins on the day on which it is made.

Duration of order
(2) An order made under subsection 490.012(1) or (2)
(a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and
(c) applies for life if the maximum term of imprisonment for the offence is life.
Click here for more information on SOIRA.

It is crucial that every individual charged with child luring consult and retain with counsel experienced in defending these charges as soon as possible. Defence counsel can make submissions to persuade the Crown to elect summarily thus limiting exposure. Counsel will look for all defences to the substantive charge and weaknesses in the Crown’s case. If necessary, counsel will prepare and present sentencing submissions to ensure that the lowest sentence is imposed.

ALL IS NOT LOST. THERE IS HELP AVAILABLE. CALL FOR A FREE CONSULTATION.

Read about Relevant Sections of the Criminal Code on child luring.

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