Canadian Criminal Sentencing/Offences/Child Luring

Legislation Luring a child 172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with (a) a person who is, or who the accused believes is, under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or section 271, 272 or 273 with respect to that person; (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 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 10 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 18 months and to a minimum punishment of imprisonment for a term of 90 days. ... 2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14; 2012, c. 1, s. 22. CCC Application For general principles on sentence for sexual offences, see Sexual Offences Principles The purpose of the enactment of s. 172.1 was "to shut [the] 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.”R. v. Legare, 2009 SCC 56 The focus should be on denunciation and deterrence resulting in some institutional time.R. v. Folino, 2005 CanLII 40543 (ON CA) at 25 R. v. Jepson, [2004] O.J. No. 5521 (Sup. Ct.) at para. 19 The starting point for luring with no record is 12 monthsR v Daniels 2008 ABPC 252 and typically runs as high as 24 months.R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (ONCA) at para. 31 R v Folino at para. 25 R. v. Alicandro, 2009 ONCA 133 at para. 49 Where there is a record the range is between 15 and 24 months. Two years or more is usually where the offence includes another related sexual offence.R v Daniels, ibid 2 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 complainant was simulated by undercover officer Conditional Sentences Conditional sentences have been said to be available in the "rarest of cases".R v Folino at para. 25 Other courts have commented that this "rareness" standard is too strict.R v El-Jamel, 2010 ONCA 575 at para 17 It was suggested that at the least, exceptional circumstances are expected:R v El-Jamel, 2010 ONCA 575 at para 36 Watt J.A. in dissent 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”. 2 Recommended Probationary Terms No contact with victim or victim's family (if facts involve actual child) No contact with persons under age of 16 or 18 No access or possession of devices capable of accessing the internet Treatment/Counselling No alcohol or drugs (if facts involve them) Ancillary Orders SOIRA Order (Mandatory as designated offence under s. 490.011 (1)(a)) DNA Order (Mandatory as a "primary designed offence" under s. 487.04(a)) section 161 Order (discretionary) Forfeiture Order of computer equipment (s.164.2) See Also Child Luring