Presumptions in child luring cases

R. v. Levigne, 2010 SCC 25 was just released.  The decision holds that, when charged with luring a child there is a presumption that accused believed individual was underaged if the individual said they were underaged.  It is up to the accused to take reasonable steps requirement to determine if interlocutor underaged .

 

The accused communicated by computer for a sexual purpose with an undercover police officer posting as a 13year old boy, “JG”.  Throughout their online chat sessions, the accused reiterated his wish to perform oral sex on JG.  The accused eventually arranged to meet JG at a local restaurant where the accused, upon his arrival, was arrested and charged with “luring a child” under s. 172.1(1)(a) and (c) of the Criminal Code.  By virtue of s. 172.1(3) of the Code, an accused is presumed by law, in the absence of evidence to the contrary, to have believed that he was communicating with an underage sexual target and, under subs. (4), it is not a defence to a charge that the accused believed that the person was not underage, unless he took reasonable steps to ascertain the age of the person.  At trial, the accused acknowledged that he took no steps to ascertain JG’s real age and testified that he did not believe him  to be 13 because his online profile indicated that he was 18, even though, at the very beginning of their chat, JG had informed the accused that the age on his profile was wrong.  The trial judge acquitted the accused.  He did not apply s. 172.1(4) because the accused’s belief was not put forward as a defence and, with respect to subs. (3), concluded that it was reasonably possible that the accused, despite all indications, believed he was dealing with an adult who was representing himself as a 13 year old. The Court of Appeal overturned the acquittals and substituted convictions, finding that the trial judge had misapprehended the combined effect of s. 172.1(3) and (4) of the Code, notably in failing to apply the requirement in subs. (4) to take reasonable steps to ascertain JG’s age.

 

The Supreme Court dismissed the appeal.

 

The Court held that read together and harmoniously with the overarching purpose of s. 172.1, the combined effect of subss. (3) and (4) should be understood and applied this way.  Where it has been represented to the accused that the person with whom he or she is communicating by computer is underage, the accused is presumed to have believed that the interlocutor was in fact underage.  This presumption is rebuttable:  It will be displaced by evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor.  Objectively considered, the steps taken must be reasonable in the circumstances.  The prosecution will fail where the accused took reasonable steps to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage.  In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown.  Such evidence will at once constitute “evidence to the contrary” under s. 172.1(3) and satisfy the “reasonable steps” requirement of s. 172.1(4).  Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.

 

The Court held:

 

[32]                          Read together and harmoniously with the overarching purpose of s. 172.1, the combined effect of subss. (3) and (4) should be understood and applied this way:

 

 1. Where it has been represented to the accused that the person with whom he or she is communicating by computer (the “interlocutor”) is underage,  the accused is presumed to have believed that  the interlocutor  was in fact underage;

 

2. This presumption is rebuttable: It will be displaced by evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances.

 

3.   The prosecution will fail where the accused took reasonable steps to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage.  In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown.

 

4.  Such evidence will at once constitute “evidence to the contrary” under s. 172.1(3) and satisfy the “reasonable steps” requirement of s. 172.1(4). 

 

5.  Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.