R v Morrison: Child Luring and the Analysis of Reasonable Steps in the Context of the Online Wild
Updated: 1 day ago
Author: L Campbell
In the relatively recent and arguably confusing Supreme Court decision of R v Morrison, the constitutionality of s 172 of the Criminal Code was at issue. The respondent, Douglas Morrison, was charged with child luring contrary to s 172 of the Code. Interestingly enough, the facts of Morrison are enough to fuel a made-for-TV movie. In February 2013, Mr. Morrison a Brampton area man, posted an online advertisement in the 18+ section of Craigslist which read (in all seriousness), “Daddy looking for his little girl.”[1] Over the course of several months, Mr. Morrison engaged in a series of email messages with a purportedly underage girl named “Mia”.[2] In these messages, Mr. Morrison would talk to “Mia” about her family, friends and school life, and he encouraged “Mia” to touch herself sexually.[3] However, he never received a photograph of her.[4]
Eventually, Mr. Morrison attempted to set up a sexual meeting (which failed),[5] and to nobody’s surprise, Mr. Morrison was eventually hauled in by the police in May, 2013 and charged with child luring and it was revealed that “Mia” was in fact a female police constable posing as an underage girl [6] At trial, part of Mr. Morrison's defence was that he believed that Mia was overage and that they were effectively engaged in a form of role play where “Mia” played the role of a schoolgirl.[7] On an unrelated but fascinating note, Mr. Morrison indicated to “Mia” that he was 45 years old, however he was in fact in his sixties at the time of the incident.[8]
At issue in Morrison were three things relating to his charge of luring a child (contrary to s 172.1(1) of
the Code):[9]
(1) whether s 11(d) of the Charter was violated by s 172.1(3) of the Code which presumes that the
accused was aware that the person they were communicating with was underage unless they can
prove their belief,
(2) whether s 7 of the Charter is violated by s 172.1(4) of the Code which requires that the accused take
reasonable steps to ascertain the age of a person they are communicating with, and;
(3) whether the one year mandatory minimum imprisonment sentence imposed by s 172.1(2)(a) of the
Code violates s 12 of the Charter.[10]
However, for the purposes of this blog post, the only issue that will be explored is whether s 172.1(4) of the Code (the reasonable steps provision) contravenes s 7 of the Charter.
s 7 of the Charter and the Reasonable Steps Provision of s 172.1(4) of the Criminal Code
s 7 of the Charter protects the life, liberty and security of everyone; and is something a person is not to be deprived of “except in accordance with the principles of fundamental justice”.[11] When conducting a s 7 analysis, there are two broad questions which are considered. Firstly, whether there is an infringement of life, liberty or security of person.[12] Secondly, it must be determined whether this infringement accords with principles of fundamental justice.[13]
This second step is broken into two sub-steps:
(i.) the identification of a relevant principle of fundamental justice, and,
(ii.) a determination of whether the deprivation of life, liberty or security of the person accords with this principle(s).[14]
With regards to the first s 7 question, defence counsel submitted that Mr. Morrison was deprived of his liberty. They submitted that a person (such as Mr. Morrison) who was effectively negligent and failed to take reasonable steps in determining the age of another person with whom they communicated with could be convicted and subsequently imprisoned;[15] something which is at odds with a person’s right to liberty.
In R v Vailliancourt it was held that imprisonment engages liberty.[16] Consequently, in my opinion Mr. Morrison’s defence counsel met the first part of the s 7 analysis- something which I believe the majority of the Supreme Court agreed with.
However, where the majority of the Supreme Court and I (as a lowly law student) differ is in determining whether Mr. Morrison’s deprivation of liberty was in accordance with a principle(s) of fundamental justice. In this determination, the Supreme Court reviewed the precedents of R v Martineau where it was held that the mens rea must be proportionally balanced with the stigma/punishment of the offender and their blameworthiness.[17] However, I believe that the majority’s reasoning with regards to this issue was rather inconsiderate of the times and the ever-evolving technology which most Canadians have at their fingertips. Furthermore, I believe that they failed to take into consideration that people can effectively be chameleons online; they can assume whatever identity, age, and characteristics they choose without any form of identity verification.
The Majority’s Reasoning
When applying the above s 7 principles, the majority found that child luring carries a “high degree of stigma and… severe punishment”,[18] however they did not proceed to balance the stigma/punishment with blameworthiness because they held that s 172.1(4) merely limits the ability of the accused to defend themselves, and bars Mr. Morrison from raising the defence that he believed “Mia” was underage when he did not take reasonable steps to figure out her age.[19] To get to this point, the majority examined the wording of s 172.1(4) which states “it is not a defence”, something which gets at the fact that the accused cannot raise a reasonable doubt if they did not take the reasonable steps.[20]
However, the majority held that a lack of taking reasonable steps is not enough to convict upon, and the burden of proof still lies upon the Crown to show that the accused was aware (beyond a reasonable doubt) that the person they were communicating with was underage.[21] To summarize their ultimate decision on this point, they held that “an accused cannot be convicted merely for failing to establish a defence; rather, a conviction will be sustained only where the Crown is able to negate a properly raised defence and show, on the evidence as a whole, that all of the essential elements of the offence in question have been proved beyond a reasonable doubt.”[22] Consequently, the majority held that s 172.1(4) did not violate Mr. Morrison’s s 7 Charter rights.
My Personal Thoughts and Opinions
In my opinion, the majority’s decision is open for criticism in several regards. For the most part, I find myself in agreement with Justice Abella who dissented in part on the particular issue of s 172.1(4). In her dissent, she found that the reasonable grounds provision of 172.1(4) provided a second path to conviction (i.e. where the accused did not take reasonable steps to ascertain the age of the person, they are guilty) rather than a limit on the accused’s defence, and can result in a violation of both ss 7 and 11(d) of the Charter.[23]
If we turn our minds back and finish the 7 analysis, I believe that s 172.1(4) will also be found to meet the second criterium whether the deprivation (in this case, of liberty) is not in accordance with the principles of fundamental justice.24 In my opinion, s 172.1(4) may engage several principles of fundamental justice.
Personally, I believe s 172.1(4) engages the fundamental principle of justice against overbreadth. In this context, the principle against overbreadth could find a s 7 infringement if s 172.1(4) is deemed rational but to capture conduct that is beyond its objective. In this case, it could be argued that the objective of s 172.1(4) is to prevent persons accused of child luring from using their beliefs to defend themselves when they were reckless or wilfully blind to indications that the person they were communicating with was underage.
Nevertheless, as can be argued with Mr. Morrison’s case, s 172.1(4) captures the conduct of people who are neither wilfully blind or reckless, but instead operating on the assumption that the person they are communicating with is overage given the age requirements of the website. This is relevant since Mr. Morrison believed based upon the fact that he was in the 18+ section of Craigslist that he was engaging with role play with an overage woman. Another argument which could be made (although not applicable to the facts of Morrison), is that minors may also make representations which mislead the accused into believing they are older than they actually are. Given that s 172.1(4) places the onus upon the accused to take reasonable steps to ascertain age, this situation would also not be defensible since the accused would not likely take reasonable steps to determine the age of the person they are communicating with if they believed this person to be overage. Consequently, the fundamental principle of justice against overbreadth may apply to s 172.1(4) given that it may exceed its legislative objective and capture non-blameworthy, non-reckless and non-wilfully blind conduct.
Additionally, the fundamental principle of justice of the right to make full answer and defence may be implicated- something which is explored by Justice Abella in her dissent; however this principle overlaps with the argument that could be made under s 11(d). With specific regards to s 11(d), the presumption of innocence is violated by s 172.1(4) because an accused cannot rely upon their belief to raise a reasonable doubt; something which is generally extraordinarily important in defending oneself against criminal charges.
More specifically, this provision means that the mens rea for child luring (intention to communicate with a child) which the Crown must prove beyond a reasonable doubt is considerably easier for them to meet when this exculpatory belief is not permitted. For example, if the accused believes they are communicating with an adult, do not take reasonable steps to ascertain their age, and cannot argue their belief in court; they are ultimately deprived of the opportunity to exculpate themselves based upon their beliefs. In the context of Mr. Morrison’s factual scenario, he was in the 18+ section of Craigslist, something which likely led him to believe that he was communicating with an adult.
Consequently, he may not have taken reasonable steps to ascertain Mia’s age, but under s 172.1(4), he was unable defend himself using these beliefs- something which clearly strikes at the presumption of innocence and the requisite mens rea for child luring.[25] Therefore, in my opinion s 172.1(4) could be seen as violating both s 7 and 11(d) of the Charter.
Other Pertinent Points in Justice Abella’s Dissent
Personally, I find it quite amusing in Justice Abella’s dissent that she pokes holes in the majority’s reasoning by means of providing everyday examples of instances when reasonable steps cannot be taken online such as where a 15 year old poses as a 45 year old, on a website.[26] In my opinion, her dissent is more attuned to the realities of the online world in which you can present yourself on the Internet as effectively anyone or anything. If any of us wanted to, it would be relatively easy for any us to create a fake social media account where we could pretend that we are highly technologically trained centenarians, or average teenagers who attend a local area high school and play the clarinet in the concert band. Furthermore, Justice Abella raises the inherent irony in the majority’s reasoning: that a person may accidentally implicate themselves, be charged and convicted of child luring by doing what the majority considers to be reasonable steps to ascertain the age of the person they are communicating with (such as requesting photos).[27]
Conclusion
While the majority ultimately found that s 172.1(4) was constitutionally valid and did not violate Mr. Morrison’s s 7 Charter right, I feel that this may be a contentious issue in future Supreme Court cases as technology evolves and it becomes increasingly easier to create fake identities or mislead others online. Irrespective of whether or not my prediction comes to fruition, it will be interesting to see developments in criminal law before the Supreme Court as they catch up to the technological advancements of the twenty-first century.
Endnotes:
[1]R v Morrison, 2019 SCC 15 at paras 17-18, [Morrison].
[2] Ibid at paras 18-19.
[3] Morrison, supra note 1 at paras 18-20.
[4] Ibid at para 21.
[5] Morrison, supra note 1 at para 19.
[6] Ibid at paras 18-23.
[7] Morrison, supra note 1 at para 59.
[8] Ibid at para 30.
[9] Morrison, supra note 1 at para 16.
[10] Ibid at para 38.
[11] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c 11, s 7.
[12] R v Malmo-Levine, [2003] 3 SCR 571 at para 83, [Malmo-Levine].
[13] Ibid.
[14] Ibid.
[15] Morrison, supra note 1 at para 74.
[16] R v Vaillancourt, [1987] 2 SCR at 652, 81 NR 115.
[17] R v Martineau, [1990] 2 SCR 633 at 646, 112 NR 83.
[18] Morrison, supra note 1 at para 79.
[19] Ibid at para 82.
[20] Ibid.
[21] Morrison, supra note 1 at para 84..
[22] Ibid at para 90.
[23] Morrison, supra note 1 at para 196.
[24] Malmo-Levine, supra note 12 at para 83.
[25] Morrison, supra note 1 at para 211.
[26] Ibid at para 221.
[27] Morrison, supra note 1 at para 223.
