Internet Child Luring Charge
Child Luring S. 272.1 Criminal Code
Child luring as defined in s. 272.1 of the Criminal Code is the use of telecommunication communicates with a person he believes is under the age of 18 for the purpose of facilitating the commission of certain sexual offences with that person.
Those offences include:
- sexual exploitation, s. 153 Criminal Code;
- incest, s. 155 Criminal Code;
- possession of child pornography, accessing child pornography, making child pornography, make available, transmit or distribute child pornography section 163.1 Criminal Code;
- parent or guardian procuring sexual activity, s. 170 Criminal Code
- owner of premises permitting use by person under 18 for unlawful sexual purpose, s. 171 Criminal Code;
- procuring a benefit trafficking a person under the age of 18, s. 279.02 Criminal Code;
- obtaining sexual services from a person under 18 for consideration, s. 186 Criminal Code
For persons believed to be under age of 16 the offences include:
- sexual interference, s. 151 Criminal Code;
- invitation to sexual touching s. 152 Criminal Code;
- bestiality in the presence of a person under 16s. 160 (3) Criminal Code;
- indecent act to a person under 16, s. 173(2) Criminal Code;
- sexual assault, s. 271, 272, 273 Criminal Code;
- abduction of a person under ages of 16 and 14, s. 280, 281 Criminal Code.
1.How can I win if facing a charge of child luring?
There are a number of possible issues that can arise in the defence to the charge of child luring. The Crown has to establish all facts to support the charge beyond reasonable doubt. The Crown must prove beyond reasonable doubt that you were the person conducting the communications. The actual content of the communications is important as it must qualify a child luring. We have been successful where the communications did not cross the line. An honest belief that the person was 18 or older is a defence to the charge of child luring provided reasonable steps were taken to ascertain the age of the person. Issues can arise regarding the validity of a search warrant or any search conducted by police. Each and every avenue of defence must be carefully scrutinized in every case.
2.What if I started talking to a person who I thought was at least 18 and then I was told that she/he was under 18?
Belief that the person was 18 years of age or older is a defence to the charge of child luring provided the court is satisfied that all reasonable steps were taken by the accused to ascertain the age of the person. Reasonable steps will depend upon the circumstances of each case.
3.What if the person I was communicating with was actually a police officer posing as a person under 18?
Entrapment has not been accepted in any court as of this writing as a valid defence in these circumstances. However, the Supreme Court of Canada has just recently released a decision “clarifying” the defence of entrapment. Essentially, the court held that the police must have a suspicion of illegal activity before setting the trap. With respect to text communications, etc the Supreme Court of Canada has held that there is no expectation of privacy with any communications made in this context.
4.What do I do if the Police show up with a search warrant?
The Police will try to locate all devices from which communications may have originated. You should call a lawyer immediately. You are under no obligation to produce any devices. In addition, you should exercise your right to remain silent.
5.What should I do if I am arrested, detained or confronted by police?
Do not answer their questions. You have right to remain silent and you exercise that right. It is not a sign of guilt if you do not answer questions posed by the Police. Everything you say can be used against you in Court. Call a lawyer (we are available 24/7 at 855-529-9111). Do not try to select which questions you can answer or not. You can tell them your name, and your date of birth and nothing else.
6.What type of information will the police try to illicit from me?
- Is the device yours;
- Who has access to the device – do you have sole access to the device;
- What room do you reside;
- Who else resides at that location;
- What is your password to open the device;
- How many telecommunication devices do you have;
- Did you send messages;
- Do you have a user name on social media and what is it;
- Do you use the app’s that were involved in the communications?
Do not answer any questions. Do not lie. Exercise your right to remain silent and exercise your right to speak to a lawyer.
7.What if I gave an inculpatory statement to the police?
In child luring cases, the accused is not like your common criminal and most often they have never had any involvement with the criminal justice system. The police are trained to obtain confessions and can lie to you regarding the evidence they have, they can try to persuade you to confess to get it off your chest. Remember, their discussions with you are motivated to obtain a confession or at the very least facts that can be relied on to assist the prosecution. They cannot used inducement, coercion or threat and they must give you your rights to counsel upon detention or arrest. If an inculpatory statement has been made, defense counsel will take all efforts to have the statement excluded from evidence.
8.Section 172(3) suggests that if the person represented to the accused that they were underage, in the absence of evidence to the contrary is proof that the accused believed that the person was underage – How do we get around this?
S. 172(3) was declared unconstitutional by the Supreme Court if Canada in a case R. v. Morrison, 2019 SCC 15 (CanLII).
9.What is the sentence if convicted of child luring?
Although the Criminal Code has minimum sentences for child luring, the mandatory minimums are subject to constitutional challenge. In fact, the minimum of 1 year should the Crown proceed by indictment has been struck in the Superior Court of Ontario.
If the Crown proceeds by way of summary proceedings, the minimum sentence is 6 months. Again this is also subject to constitutional challenge. The maximum sentence is 2 years.
One of the first things defence counsel will do is to try to convince the Crown to proceed by way summary conviction.
Sentencing in child luring cases will depend on a number of different factors some of which include, the nature of the communications, the period of time, the accused’s background, counseling if any. These are but a few of the factors a court will consider.
10.Can I get house arrest?
The Criminal Code does not permit house arrest for the charge of child luring.
11.Can I get weekends (an intermittent sentence)?
The Criminal Code only permits an intermittent sentence if the sentence is 90 days or less. It is possible to make a constitutional challenge of the minimum sentences and seek a sentence of 90 days or less to be served on weekends. Another possibility is to negotiate a resolution to a different charge that would allow a 90 day sentence without the need for a constitutional challenge. We have resolved a number of cases that started as child luring for 90 days or less.
If you are charged with child luring or under investigation the first thing you should do is contact a lawyer. We can be reached at 1-855-529-3501.