Child Luring (Offence)

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Child Luring
s. 172.1 of the Crim. Code
Election / Plea
Crown Election	Hybrid summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	6 months incarceration
Maximum	2 years less a day incarceration
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	1 year incarceration
Maximum	14 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to child luring are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings

Template:PleadingsHybridList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

Offences under s. 172.1 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 172.1	Template:ReleaseProfileAll

When charged under s. 172.1, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. 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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

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.

Publication Bans
For all criminal or regulatory prosecutions, 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).

Offence Designations
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 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.

Offence Wording

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.

Punishment
(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.

– CCC

Proof of the Offence

Proving child luring under 18 under s. 172.1(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit communicated by means of telecommunication the culprit communicated to a person who is under the age of 18 or is believed to be under the age of 18 if the accused believed the victim was 18 year or older, they must have failed to take "reasonable steps" to ascertain age; accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person being: sexual exploitation (153(1)) incest (155), child pornography (163.1), parent or guardian procuring sexual activity (170), householder permitting sexual activity (171) trafficking in person under the age of 18 (279.011) material benefit from trafficking person under the age of 18 (279.02(2)), withholding or destroying documents of a trafficked person under the age of 18 (279.03(2)), obtaining sexual services from person under the age of 18 (286.1(2)), material benefit from sexual services of person under the age of 18 (286.2(2)) or Procuring a person under the age of 18 (286.3(2))

Proving child luring under 16 under s. 172.1(1)(b) should include: the culprit communicated by means of telecommunication the culprit communicated to a person who is under the age of 16 or is believed to be under the age of 16 if the accused believed the victim was 16 year or older, they must have failed to take "reasonable steps" to ascertain age; accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person, being: Sexual Interference (151) Invitation to Sexual Touching (152), Bestiality in Presence of a Child (160(3)) Indecent Act, Exposure (173(2)) Sexual Assault (271), Sexual Assault with a Weapon or Causing Bodily Harm (272), Aggravated Sexual Assault (273) or Child Abduction Under 16 years (280)

Proving child luring under 14 under s. 172.1(1)(c) should include: the culprit communicated by means of telecommunication the culprit communicated to a person who is under the age of 14 or is believed to be under the age of 14 if the accused believed the victim was 14 year or older, they must have failed to take "reasonable steps" to ascertain age; accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person being: abduction of person 14 years (281).

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"
"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;"

Mens Rea

The mental element must be present at the time the communication is made.

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”.

The contents of the messages can be used but are not determinative of a sexual purpose. The issue must be determined on the evidence as a whole.

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".

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.

172.1
...
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.
No defence
(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.

– CCC

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).

Typical Defences

• 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
• Entrapment

Participation of Third Parties

Testimonial Aids
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

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
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 Penalties

Offence(s)	Crown Election	Minimum Penalty First Offence	Minimum Penalty Subsequent Offence
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	Any	None	Same

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.

Available Sentences

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 172.1 From August 9, 2012	any
s. 172.1 Before August 9, 2012	any

Offences under s. 172.1 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

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
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:

1. a negligible risk of recidivism
2. acceptance of responsibility
3. Participation and progress in an appropriate treatment program
4. a devastating impact on the offender and his family
5. assaults by other inmates while in custody awaiting release
6. 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”.

Consecutive Sentences
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 must be consecutive where:

• one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
• each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

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.

Purpose
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."

Principles
The focus should be on denunciation and deterrence resulting in some institutional time.

The mandatory minimums do not violate s. 12 of the Charter for begin cruel and unusual.

Young Victim
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).

Constitutionality
At least one appellate court has found that the mandatory minimum of 1 year required under s. 172.1 is unconstitutional as it is cruel and unusual punishment.

Factors

Aggravating

• 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

Mitigating

• 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.

Ranges

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.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 172.1	For convictions under s. 172.1, as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
SOIRA Orders	s. 172.1	On conviction under s. 172.1(a), (b), or (c), a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]". If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2)) Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)). There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order). 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	If convicted under s. 172.1, the judge may make discretionary 161 Order.
Forfeiture Order (s.164.2)	s. 172.1	must be "used" or "owned" by the offender in relation to a conviction of child pornography, child luring or arrange sex offence against a child
Delayed Parole Order	s. 172.1	Periods of imprisonment of 2 years or more for convictions under s. 172.1 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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(1) 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. NB: does not apply to summary offences.

History

• History of Child Luring

See Also

References

• Terms of Probation Based on Offence