By AdvocateDaily.com Staff

The Supreme Court of Canada will rule on a case involving the use of a fictitious online identity in a sexual luring investigation that will have a major impact on similar litigation, says Toronto criminal lawyer Melanie Webb.

The case before the nation's top court involves of a man who engaged in a sexual conversation with a police officer who was posing as a 14-year-old girl, Webb, principal of Melanie J. Webb Barrister, tells AdvocateDaily.com.

It revolves around three complex and technical points of law, and depending on how the Supreme Court rules, it will have far-reaching implications, she says.

The appeal has attracted interveners from the attorney generals of Alberta, Quebec, Saskatchewan, and British Columbia, who are urging the court to uphold the constitutionality of the two sections of the Criminal Code struck down in Ontario — the minimum sentence and the presumption of belief in age.

The Criminal Lawyers' Association has also intervened — arguing for the Ontario Court of Appeal (OCA) finding to be upheld, mostly on procedural grounds.

Webb says the matter involves a man in his late 60s, with no criminal record and of otherwise good character, who posted an ad on Craigslist in January 2013 — “Daddy looking for his little girl — m4w — 45 (Brampton).”

It went on to read: “Daddy looking for his little girl to meet and have some fun with him during the day next week on Tue. and Wed of this week have the place all to ourselves too.”

In February 2014, the ad drew the attention of Peel Regional Police. A police officer posed as a 14-year-old girl and, over the course of two-and-a-half months, the email content escalated to sexually explicit conversations.

“He asked how old she was and she indicated she was 14 years old,” says Webb, who is not involved in the matter and comments generally.

In 2014, the man was charged under s. 172.1 of the Criminal Code with luring a child under 16 using a computer for sexual purposes.

“There were three components to the appeal,” Webb says. “First, the legislation imposes a presumption of belief of the age of the girl, meaning there’s a presumption he knew she was underage. In this case, the girl said she was 14 years old. But, the man’s defence was that he thought he was engaging in role-playing with someone who was, in fact, an adult.

“Secondly, the legislation also imposes an obligation on the accused to take reasonable steps to ascertain the (real) age of the other person. They can’t just say they thought they were 18 unless they took reasonable steps to find out.”

The third issue is that of the mandatory minimum sentence required by the law.

The accused argued he’d taken reasonable steps by posting on an adults-only section of Craigslist and noted he’d asked for a photo to check the person's age, which was never provided. He also requested a phone number, which was given, but no conversation took place.

He’d also asked to meet the person with whom he was conversing, which arguably might have provided more proof of age, but that was never determined. He also ended the conversation sometime before police swooped in.

At trial, the original judge agreed that the presumption of belief infringes the right to be presumed innocent under s. 11(d) of the Charter, says Webb, but he also ruled that there was enough evidence proven and convicted the man.

He also held the requirement of “reasonable steps” was constitutional, but found that the mandatory minimum sentence violated s. 12 of the Charter, which provides that everyone has the right not to be subjected to “cruel and unusual punishment.”

The judge found that in this case, a term of four months' imprisonment was appropriate and that the mandatory minimum sentence of one year would be “a harshly disproportionate consequence” for a man of the offender’s age and previous good character.

The judge held the mandatory minimum sentence to be of no force and effect, and after awarding credit for pre-sentence custody, sentenced the accused to 75 days in jail, to be served on weekends with a one-year probation order, a 20-year registration order under the Sex Offender Information Registration Act and an order excluding him for three years from attending public parks and other places where children would normally be present.

The Crown and defendant appealed, and the Court of Appeal upheld the original judge’s findings.

“(The accused’s) blameworthiness is diminished in that it cannot be said that he believed his interlocutor was underage when engaging in sexualized conversations,” the appeal court wrote. “He is culpable only for having acted unreasonably in failing to take steps to ensure that the other person was not underage. Communication online with an adult for a sexual purpose is not in itself a crime. Although his communications persisted for some two months, it cannot be said that he knowingly embarked on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault that would merit a substantial sentence of imprisonment.”

The panel of judges, also questioned the issue of honesty online.

“The mere fact of a representation is no indication of its reliability or credibility and does not lead inexorably to the conclusion that the recipient believed it,” they wrote. “Representations on the internet are notoriously unreliable.”

The court pointed out there was never a face-to-face encounter and no indication of intent to commit a physical sexual offence in relation to an underage person.

“The child luring offence must be taken seriously given the potential harm it could result in for the most vulnerable members of our society, but in this case no actual harm resulted from (the man's) transgression,” the court found.

The Crown appealed again, and the case was argued at the Supreme Court in May 2018, with a decision expected soon, says Webb.

She says it’s an important ruling on complex and technical issues, which will have an impact on the child luring sections of the Criminal Code.

"They are taking their time, and this may have an impact on many other child luring cases before the courts, many awaiting appeals,” Webb says, including some involving a sting operation in York Region that resulted in more than 100 people being charged with luring over a four-year period.