Child Luring (Offence)
|s. 172.1 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 6 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-charge, or Judge|
|Minimum||6 months incarceration|
|Maximum||2 years less a day incarceration|
|Avail. Disp.||same as summary|
|Minimum||1 year incarceration|
|Maximum||14 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Typical Defences
- 6 Participation of Third Parties
- 7 Sentencing Principles and Ranges
- 8 Ancillary Sentencing Orders
- 9 History
- 10 See Also
Offences relating to child luring are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".
|Crown Election|| Defence Election|
|s. 172.1 [child luring]||Hybrid Offence(s)||Yes||Yes, if Crown proceeds by Indictment|
When charged under s. 172.1, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
A peace officer who charges a person under s. 172.1 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
Section s. 172.1 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).
Offences under s. 172.1 are designated offences eligible for wiretap under s. 183.
Offences under s. 172.1 are "designated" offences under s. 752 for the purpose of dangerous offender applications.
Offences under s. 172.1 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Luring a child
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
- (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
- (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
- (c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
(2) Every person who commits an offence under subsection (1)
- (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
- (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14; 2012, c. 1, s. 22; 2014, c. 25, s. 9; 2015, c. 23, s. 11.
Proof of the Offence
Proving child luring under 18 under s. 172.1(1)(a) should include:
Proving child luring under 16 under s. 172.1(1)(b) should include:
Proving child luring under 14 under s. 172.1(1)(c) should include:
Interpretation of the Offence
Luring generally consists of "a prolonged, deliberate and careful cultivation of a young person with a view to engendering trust and intimacy, all designed to promote sexual conduct between the two parties." It also includes "prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality".
The purpose of s.172.1 is to “shut that door on predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents. Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer “chats” — and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person.”
This is an “inchoate” offence that is separate and apart from the sexual offence that it precedes. It does not require the sexual offence to have occurred. This means the accused does not need to have actually gone to meet the victim in person. Nor is it necessary for the accused to be “objectively capable” to commit the secondary offence.
The offence will "crystallize" and becomes complete before any actions are taken on the part of the accused to execute the secondary offence.
"Telecommunications" is defined in s. 35 of the Interpretation Act, which states "means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system;"
The mental element must be present at the time the communication is made.
- R v Paradee, 2013 ABCA 41 (CanLII)
R v Legare, 2008 ABCA 138 (CanLII) at para 28 aff'd at 2009 SCC 56 (CanLII)
- R v Legare 2009 SCC 56 (CanLII),  3 SCR 551 at para 2
see also R v Legare (ABCA) at para 54
- R v Legare, at para 25
- Legare, supra at para 42
- R v Collins, 2013 ONCA 392 (CanLII)
- section 35 of the Interpretation Act
For further detail on the definition of "telecommunications" see Wiretaps#"Telecommunications"
R v Legare, 2008 ABCA 128 (CanLII) at para 41
R v G.D.G., 2013 MBQB 244 (CanLII), at para 95
Purpose of Facilitating an Offence
It is not criminal to engage in sexually explicit chats with an underage person unless the prohibited purpose is established beyond a reasonable doubt.
The intent must be specific to the objective and must be determined subjectively.
Facilitating can include actions that help “bring about or [make] easier or more probable the commission of such an offence, by grooming or reducing the inhibitions of a young person or by exploiting their curiosity, immaturity or precocious sexuality”.
A claim that the accused was merely joking can be rejected where the texts demonstrate an escalated nature and become more sexually specific.
It is not necessary that the victim be physically accessible to the accused is any way to be luring.
The Crown need not prove that there is "a present intent to meet the child". The accused may "merely hope to bring the child around to acquiescence in some form" of an offence named in the charge. A purpose "however far off or unlikely, would be sufficient".
Types of evidence
Evidence of "sexually explicit comments may suffice to establish the criminal purpose of the accused".
The contents of the communications are "not necessarily determinative".
- R v Pengelley, 2010 ONSC 5488 (CanLII) at para 6
- Legare 2009 SCC 56 (CanLII) at para 32
- Legare at para 28
- R v Legare at para 31
- R v Himes, 2014 ONCJ 31 (CanLII) at para 80
R v Legare, 2008 ABCA 128 (CanLII) at para 62 appealed to 2009 SCC 56 (CanLII)
Legare (ABCA) at para 56
Legare (ABCA) at para 63
Legare at para 29
Legare at para 29, 31
Reasonable Steps to Ascertain Age
Under s. 172.1, the accused can only claim to have believed the alleged victim was not of a prohibited age where he took reasonable steps to ascertain the age of the victim. This is to foreclose any any defence based on claims of the accused without any objective evidential basis.
Presumption re age
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14; 2012, c. 1, s. 22.
The claim that the accused believed he was participating in "role-playing" must be consistent with what a reasonable person would believe and must still comply with s. 172.1(4).
Factors to consider include:
- whether the chat-room was likely to be frequented by children, including whether it was "adult-only"
- whether he asked for her age;
- user name suggestive of an age;
- presence of photos of the female;
- biographical information found in the female's profile;
- existence of a moderator who would ban persons under 18.
The presumption under s. 172.1(3) was found to be unconstitutional for violating s. 11(d).
- R v Levigne, 2010 SCC 25 (CanLII) at paras 31, 35
R v Thain, 2009 ONCA 223 (CanLII)
R v Levigne
- as seen in Thain and Levigne
- e.g. R v Pengelley, 2010 ONSC 5488 (CanLII) -- acquitted based on the evidence that the child’s account showed a picture of someone in their 20s.
- R v Morrison, 2014 ONCJ 673 (CanLII)
- If under s.172.1(1)(a) and the secondary offence is under s. 163.1, the defence of “private use”
- Mistaken belief of age
Participation of Third Parties
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- For general principles on sentence for sexual offences, see Sexual Offences
|s. 172.1 [child luring]
From July 16, 2015
|Summary Election||2 years less a day custody|
|s. 172.1 [child luring]
From July 16, 2015
|Indictable Election||14 years custody|
|s. 172.1 [child luring]
June 22, 2007 to July 15, 2015
|Summary Election||18 months custody|
|s. 172.1 [child luring]
June 22, 2007 to Until July 15, 2015
|Indictable Election||10 years custody|
Offences under s. 172.1 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months jail.
| Minimum Penalty
| Minimum Penalty|
|s. 172.1 [child luring]
From August 9, 2012
|Summary Election||90 days custody||Same|
|s. 172.1 [child luring]
From August 9, 2012
|Indictable Election||1 year custody||Same|
|s. 172.1 [child luring]
Until August 8, 2012
Offences under s. 172.1 have a mandatory minimum penalty of 1 year jail when prosecuted by indictment and 90 days jail when prosecuted by summary conviction.
s. 718.3, 787
| Custody and
| Custody and
| Conditional |
From August 9, 2012
Before August 9, 2012
Amendments to s. 172.1 on August 9, 2012 removed the availability of conditional sentences. Offences occurring after August 9, 2012 are subject to a mandatory minimum jail sentence of 90 days.
Conditional sentences have been said to be available in the "rarest of cases". Other courts have commented that this "rareness" standard is too strict. It was suggested that at the least, exceptional circumstances are expected:
- a negligible risk of recidivism
- acceptance of responsibility
- Participation and progress in an appropriate treatment program
- a devastating impact on the offender and his family
- assaults by other inmates while in custody awaiting release
- medical evidence suggesting incarceration would put him at “risk of fatal dissociation culminating in possible suicide..." and being in a "very fragile mental and physical state”.
Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence other than under s. 163.1 must be consecutive to a sentence for "a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1."(see s. 718.3(7)(b)) [note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]
- Only applies if offences occurs after August 9th, 2012. Otherwise, no minimums
- R v Folino at para 25
- R v El-Jamel, 2010 ONCA 575 (CanLII) at para 17
- R v El-Jamel at para 36 Watt J.A. in dissent
Child luring is a "preparatory crime" that "criminalizes conduct that precedes the commission of the sexual offences to which it refers".
Often, the offenders will attempt or successfully commit additional offences such as "viewing the underage victim as she performs sexual acts at his urging", sharing child pornography, or arranging meetings in real life for illicit purposes.
The purpose of the enactment of s. 172.1 was to target "predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents. Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer "chats" -- and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person.”
The enactment further intends "to protect children, who are by definition vulnerable members of society and are particularly vulnerable to exploitation by potential predators through the use of internet communications." 
The offence involves "pre-meditated conduct specifically designed to engage an underage person in a relationship with the offender, with the goal of reducing the inhibitions of the young person so that he or she will be prepared to engage in further conduct that is not only criminal but extremely harmful."
The offender's anonymity allows for "predatory behaviours through seemingly innocuous but persistent communication, and to count on the victims letting their guard down because the communication occurs in the privacy and supposed safety of their own homes."
The focus should be on denunciation and deterrence resulting in some institutional time.
Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).
- Age or simulated age of complainant
- the offender sending explicit images to victim
- amount of grooming done by offender (amount of sex talk, encouragement to perform sex acts)
- communications over a long duration
- offender attempted to arrange a meeting
- meeting resulted in sexual assault or attempt
- offence included the creation of child pornography
- youthful offender
- offender close in age to complainant
- no attempts or prospects of meeting in person
It is not a mitigating factor nor does it lessen the seriousness of the offence that there was no "real" victim where the offender was found luring an undercover officer.
- see also: Child Luring (Sentencing Cases)
The starting point for luring with no record is 12 months and typically runs as high as 24 months. Where there is a record the range is between 15 to 24 months. Two years or more is usually where the offence includes another related sexual offence.
Where the luring also involves child pornography, the range may be in the upper part of the 12 to 24 month range.
- R v Daniels 2008 ABPC 252 (CanLII)
R v Jarvis, 2006 CanLII 27300 (ON CA), (2006), 211 CCC (3d) 20 (ONCA) at para 31 (“the range of sentence for child luring generally lies between twelve months and two years and that circumstances such as possession of child pornography…will require a sentence at the upper end of the range”)
R v Folino at para 25
R v Alicandro, 2009 ONCA 133 (CanLII) at para 49
- R v Daniels, ibid
- Jarvis at para 31
Ancillary Sentencing Orders
|DNA Orders||s. 172.1||
|SOIRA Orders||s. 172.1||
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act
|Section 161 Orders||s. 172.1||
|Forfeiture Order (s.164.2)||s. 172.1||
|Delayed Parole Order||s. 172.1||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).|
General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|