Supreme Court rules ‘belief’ requirement in child luring law is unconstitutional

The Supreme Court of Canada says a provision of the country’s law forbidding the luring of children via the internet is unconstitutional and is ordering a new trial for a Toronto-area man.

Douglas Morrison posted an ad on Craigslist in 2013 entitled “Daddy looking for his little girl,” and then had sexually explicit conversations by computer with a police officer claiming to be a 14-year-old.

The conversations took place over a span of more than two months. Morrison invited the “girl” to touch herself sexually, suggested she watch pornography and also proposed the two meet to engage in sexual activity – a meeting that never happened.

During his trial, Morrison said he believed the respondent was an adult and that they were role-playing, pointing to Craigslist rules that required users to be 18 or older.

He challenged the constitutionality of a provision of the law that presumes an accused knows a victim is underage unless the accused person can prove he or she took reasonable steps to find out otherwise. The law presumed Morrison believed the girl to be 14 years old, despite his arguments to the contrary.

The trial judge agreed with the constitutional argument, but found Morrison guilty nonetheless.

In a unanimous ruling Friday, the Supreme Court said Parliament’s wording of the law violates the presumption of innocence promised by the Charter of Rights and Freedoms.

Under the new ruling, the Crown has to prove the accused actually believed the alleged victim was underage. It isn’t even necessarily enough to show that the accused asked the alleged victim’s age and was told he or she was an age too young for sexual activity.

“In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage. Nothing less will suffice,” Justice Michael Moldaver wrote for the majority.

The accused can defend him- or herself by proving they took “reasonable” steps to figure out if the alleged victim was underage. If he or she did not, then an accused cannot argue they fully believed the person was of legal age.

Stemming from that, the justices ruled in an 8-1 decision to overturn Morrison’s conviction, citing errors made by the trial judge, and ordered Morrison a new trial.

The court didn’t deal with another aspect of the appeal around Morrison’s case: his sentence.

The mandatory minimum sentence for an indictable offence of child-luring is one year, up to a maximum of 14 years in prison. The trial judge agreed with Morrison that the one-year minimum sentence was unconstitutional, violating provisions banning cruel and unusual punishment, and gave him a four-month sentence.

Seven justices agreed that issue should be punted back to trial because the mistakes made by lower courts in applying the law in Morrison’s case created a shaky foundation upon which to judge that aspect of the child-luring law.

Justices Andromache Karakatsanis and Rosalie Abella went further and called the mandatory minimum unconstitutional because it didn’t allow for leeway in situations, as Karakatsanis wrote, “that can vary dramatically in the moral blameworthiness of the offender and the potential harm inflicted on the victim.”

Karakatsanis wrote in her concurring decision that Parliament raised the possibility that a 90-day sentence could be appropriate in some instances of alleged child-luring online.

“Sentencing someone to one year in jail when the fit and proportionate sentence would be 90 days or less is intolerable and would be shocking to Canadians,” she wrote.