Like all prohibitions of criminal law, it is incumbent upon the Government to clearly set out the conduct for which, it is proposed, the sanctions of criminal law, such as imprisonment, apply. This, so the people know what is unlawful as well as the punishment for the particular offence.
Section 172.1 of Canada's Criminal Code is not in user-friendly language, unfortunately. However, in typical static government-lawyer drafting language, it sets out as follows the new offence of luring a child via the Internet as follows:
Every person who uses the Internet (blandly referred to as a "computer system") to communicate with a person under 18 years of age for the purposes of facilitating the offences of sexual exploitation (153(1)), incest (155), corrupting morals (163.1) , procuring sexual intercourse (212), sexual assault (271), or the abduction of a person under the age of 14 or 16 (280 and 281) or, as to a person under 14, sexual interference (151), invitation to sexual touching (152), bestiality (160), indecent acts (173).
The Code (§152) defines an invitation to sexual touching as:
"Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites, and the body of the person under the age of fourteen years, is guilty of an offence ..."
Leaving nothing to judicial imagination, the Code indirectly defines the Internet as:
"... computer system means a device that, or a group of interconnected or related devices one or more of which, contains computer programs or other data, and pursuant to computer programs, performs logic and control, and may perform any other function...."
In R v CJ, the accused faced a charge of luring a child pursuant to §172.1. He was:
"...42 year old man who was the step-grandfather of a girl who was then 13 and is now 15, and over the next year or year and a few months, he lured her into a fictitious relationship with a 17 ... year old boy who lived next door who she had a crush on, and he got involved with her on the Internet by pretending to be the 17 ... year old boy."
The facts as set out in the case are sickening and provide a horribly vivid glimpse into the terrifying world of pedophilia. Suffice it to say that after luring the girls into sexual encounters, the girls eventually went to the police.
They approached the accused who denied it.
It was later discovered that the accused had a prior conviction fore sexual assault of a 7-year old daughter that occurred about 17 years ago for which he got sentenced to two years in penitentiary.
"The police then got a warrant on the strength of the information they did have and they seized three computers from the accused, and once they got into the computers and found the chat room information which was quite sexually explicit..."
In the result, all the accused got was a 3.5 year prison term and a 20-year registration in the Sex Offender Registry.
R v Legare is a decision of the Alberta Court of Appeal in which Craig Bartholomew Legare was charged with:
"... on or about the 28th day of April, 2003, at or near Edmonton, Alberta, did by means of a computer system, communicate with a person who was, or whom the accused believed to be, under the age of fourteen years, for the purpose of facilitating the commission of an offence under §151 or 152 with respect to that person contrary to §172.1 of the Criminal Code of Canada."
In what has to be a warning to all parents, Legare is alleged to have:
"In April of 2003, the Accused, living in Edmonton, engaged in two private, electronic chat conversations with the complainant, who was 12-years old at the time, and living in Ontario. The Accused was 32-years old at the time, although he represented to the complainant that he was 17.
"The conversations were explicitly sexual in nature, and both parties indicated, in what might be considered more or less well-known vernacular, that they wanted to engage in sexual intercourse. The complainant provided her telephone number, and a short time after the chat conversations, the Accused made two telephone calls to her. In the second call, the Accused indicated he would 'love' to have oral sex with the complainant...."
The defence relied on the fact that:
"... the Accused and the complainant never met, and no sexual activity ever took place. (A)t no time did the Accused or the complainant discuss a meeting, nor did the Accused intend to meet the complainant."
The allegation of grooming was not germane to the offence, the defence argued. Had clever criminal defence found an "out" for Mr. Legare?
No, said the court of appeal:
"The purpose ... is to protect children from online predators and it is to work against a baneful predacious syndrome that is apparently prevalent on the Internet. More recently, this Court stated, albeit in the context of sentencing for offences under §172.1(1)(c), that the justice system must take the strongest possible steps to protect children and denounce callous predators who sexually abuse them.
"The respondent argues that the offence is restricted to cases where the adult is proven to have actually intended to carry out a physical contact with the specific child. I disagree. The actus reus of the offence ... should not be restricted to situations where the adult attempts to persuade the child to meet."
REFERENCES:
- Criminal Code of Canada, s. 172.1, at canlii.org/ca/sta/c-46/sec172.1.html.
- R v AG 2007 Canlii 21975, published at canlii.org/en/on/onsc/doc/2007/2007canlii21975/2007canlii21975.html
- R v CJ 2005 OJ 5732 (Quicklaw, Ontario Court of Justice)
- R v Dhandhukia, Ontario Superior Court of Justice, Feb. 15, 2007, published at canlii.org/en/on/onsc/doc/2007/2007canlii4312/2007canlii4312.html
- R v Fortin 2006 QCCQ 13159, published at canlii.org/fr/qc/qccq/doc/2006/2006qccq13159/2006qccq13159.html
- R v Legare 2008 ABCA 138; also at canlii.org/en/ab/abca/doc/2008/2008abca138/2008abca138.html; trial level decision at canlii.org/en/ab/abqb/doc/2006/2006abqb248/2006abqb248.html
- R v Randall 2006 NSPC 19, published at canlii.org/en/ns/nspc/doc/2006/2006nspc19/2006nspc19.html
- R v Smith 2007 BCSC 1955, published at canlii.org/en/bc/bcsc/doc/2007/2007bcsc1955/2007bcsc1955.html
- Image of The Abduction of the Persephone, wall-painting, mid-4th century BC, at Vergina, Greece.