Her Majesty The Queen Appellant/Respondent on cross-appeal v. Douglas Morrison, 2019 SCC 15

SUPREME COURT OF CANADA Citation: R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3 Appeal Heard: May 24, 2018 Judgment Rendered: March 15, 2019 Docket: 37687 Between: Her Majesty The Queen Appellant/Respondent on cross-appeal and Douglas Morrison Respondent/Appellant on cross-appeal - and - Attorney General of Canada, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta and Criminal Lawyers’ Association (Ontario) Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 160) Moldaver J. (Wagner C.J. and Gascon, Côté, Brown, Rowe and Martin JJ. concurring) Concurring Reasons: (paras. 161 to194) Karakatsanis J. Reasons Dissenting in Part: (paras. 195 to 227) Abella J. R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3 Her Majesty The Queen Appellant/Respondent on cross-appeal v.

Douglas Morrison Respondent/Appellant on cross-appeal and Attorney General of Canada, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta and Criminal Lawyers’ Association (Ontario) Interveners Indexed as: R. v. Morrison 2019 SCC 15 File No.: 37687. 2018: May 24; 2019: March 15.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Presumption of innocence — Child luring — Police sting operation — Presumption of belief regarding age — Accused charged with child luring after communicating online with police officer posing as 14-year-old girl — Accused contesting constitutionality of Criminal Code provision establishing presumption that if person with whom he was communicating was represented to him as being underage, he believed representation absent evidence to the contrary — Whether presumption infringes accused’s right to be presumed innocent — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1 , 11(d) — Criminal Code, R.S.C. 1985, c.

C-46, s. 172.1(3) .

Constitutional law — Charter of Rights — Right to liberty — Fundamental justice — Child luring — Police sting operation — Accused charged with child luring after communicating online with police officer posing as 14-year-old girl — Accused contesting constitutionality of Criminal Code provision barring him from raising as defence that he believed person with whom he was communicating was of legal age unless he took reasonable steps to ascertain person’s age — Whether reasonable steps requirement deprives accused of liberty in violation of principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c.

C-46, s. 172.1(4) . M posted an advertisement online in the “Casual Encounters”

section on Craigslist, with the title “Daddy looking for his little girl — m4w — 45 (Brampton)”. A police officer, posing as a 14-year-old girl named Mia, responded to the ad. In conversations taking place over the span of more than two months, M invited “Mia” to touch herself sexually and proposed that they meet to engage in sexual activity. These communications led to M being charged with child luring under s. 172.1(1) (

b) of the Criminal Code , which prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 16 for the purposes of facilitating the commission of certain designated offences against that person — here, the offence of invitation to sexual touching directed at a person under the age of 16 contrary to s. 152 of the Criminal Code . At trial, M challenged the constitutionality of three subsections of the child luring provisions: s. 172.1(2) (a), (3) , and (4) of the Criminal Code .

First, he argued that s. 172.1(3) (which provides that if the person with whom the accused was communicating (“other person”) was represented to the accused as being underage, then the accused is presumed to have believed that representation absent evidence to the contrary) violated his right to be presumed innocent under s. 11(

d) of the Charter . Second, he argued that s. 172.1(4) (which bars an accused from raising, as a defence, that he or she believed the other person was of legal age, unless the accused took reasonable steps to ascertain the other person’s age) violated his rights under ss. 7 and 11(

d) of the Charter . Third, he argued that s. 172.1(2) (a) (which prescribes a mandatory minimum sentence of one year’s imprisonment if the Crown proceeds by way of indictment) violated his right not to be subjected to cruel and unusual punishment under s. 12 of the Charter . The trial judge accepted M’s submission with respect to s. 172.1(3) and held it to be of no force and effect. However, he held that s. 172.1(4) complied with the Charter and was constitutionally valid, and he convicted M on the basis that he had not taken reasonable steps to ascertain “Mia’s” age. At sentencing, he concluded that the mandatory minimum under s. 172.1(2) (

a) was grossly disproportionate when applied to M and therefore violated s. 12 of the Charter . He sentenced M to four months’ imprisonment and probation for a year. The Ontario Court of Appeal unanimously upheld M’s conviction and sentence and each of the trial judge’s conclusions on the three constitutional questions. The Crown appeals the Court of Appeal’s decision with respect to s. 172.1(2) (

a) and (3) . M cross-appeals, now submitting that s. 172.1(4) is unconstitutional because it allows for a conviction on the basis of objective fault, notwithstanding the high stigma and severe punishment attached to a conviction for child luring, thereby violating the principles of fundamental justice under s. 7 of the Charter . Held (Abella J. dissenting in part): The appeal and cross-appeal should be allowed in part.

Section 172.1(3) of the Criminal Code should be declared to be of no force or effect. The accused’s conviction should be set aside and a new trial should be ordered. Per Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ.:

Section 172.1(3) of the Criminal Code infringes s. 11(

d) of the Charter , and that infringement cannot be saved under s. 1 . It is therefore of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982 .

Section 172.1(4) of the Criminal Code does not infringe s. 7 of the Charter . However, the lower courts erred in their reading of the reasonable steps requirement under s. 172.1(4) , and therefore M’s conviction should be set aside and a new trial should be

ordered. In view of the lower courts’ errors with respect to the reasonable steps requirement, any final determination as to the constitutionality of s. 172.1(2) (

a) should be remitted to the presiding judge at M’s new trial, should he be convicted again. The presumption under s. 172.1(3) of the Criminal Code offends s. 11(

d) of the Charter . In the context of a sting operation where there is no underage person, s. 172.1(1) (

b) of the Criminal Code stipulates that in order to secure a conviction, the Crown must prove beyond a reasonable doubt that, among other things, the accused believed the other person was under the age of 16. Subsection 172.1(3) , however, creates a presumption that proof that the other person was represented to the accused as being under 16 will, absent evidence to the contrary, stand in for proof of the essential element that the accused believed the other person was under 16. A presumption will comply with s. 11(

d) of the Charter solely if proof of the substituted fact leads inexorably to the existence of the essential element it replaces. The nexus requirement for demonstrating that a statutory presumption does not offend the presumption of innocence is strict: the connection between proof of the substituted fact and the existence of the essential element it replaces must be nothing less than inexorable. An inexorable link is one that necessarily holds true in all cases.

Here, the mere fact that a representation of age was made to the accused does not lead inexorably to the conclusion that the accused believed that representation, even absent evidence to the contrary. Where a representation of age is made online, the trier of fact could still be left with a reasonable doubt at the close of the Crown’s case as to whether the accused believed the other person was underage — despite this, the accused’s belief that the other person was underage would be deemed to be established beyond a reasonable doubt by virtue of s. 172.1(3) . This contravenes the presumption of innocence.

The infringement of s. 11(

d) of the Charter by s. 172.1(3) of the Criminal Code cannot be justified under s. 1 of the Charter . The parties agree that s. 172.1(3) has a pressing and substantial objective and the Charter limit it creates is rationally connected to that objective. However, it fails the minimal impairment test. The Crown has failed to establish that, absent the presumption, the child luring provision cannot operate effectively.

Where the other person is represented to the accused as being underage, the trier of fact can, on the basis of evidence, draw a logical, common sense inference that the accused believed that representation. In addition, the deleterious effects of the presumption outweigh its salutary effects. Although the presumption may ease the Crown’s burden of proving its case, prosecutorial convenience and expediency cannot justify the risk of convicting the innocent that it creates. The reasonable steps requirement under s. 172.1(4) of the Criminal Code does not violate s. 7 of the Charter .

This requirement does not, in the absence of the presumption under s. 172.1(3) , allow for a conviction where the Crown has only proven that the accused failed to take reasonable steps to ascertain the other person’s age, contrary to the approach taken by the trial judge and endorsed by the Court of Appeal. Rather, there is only one pathway to conviction available: the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage.

By expressly including a presumption under s. 172.1(3) as to the accused’s belief in this regard — albeit a presumption which has been found to be unconstitutional — Parliament signalled that the requirement of proving belief is essential in the context of a police sting operation where there is no underage person. Subsection 172.1(4) does not make this requirement any less essential.

In the absence of the presumption under s. 172.1(3) , it bars accused persons from raising, as a defence, that they believed the other person was of legal age where they failed to take reasonable steps to ascertain the other person’s age. Consequently, if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then the trier of fact is precluded from considering the defence that the accused believed the other person to be of legal age.

But that does not relieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage. Thus, if the trier of fact can only conclude from the evidence that the accused was negligent or reckless with regard to the other person’s age, the Crown has not met its burden, and the accused is entitled to an acquittal, since negligence and recklessness are states of mind that do not entail any concrete belief about the other person’s age.

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. In the case of child luring, s. 172.1(4) does not create a situation in which an accused may be convicted on the basis of simple negligence — namely, in this context, a failure to take reasonable steps. Rather, only subjective mens rea — in this case, belief — will suffice.

In the instant case, the trial judge entered a guilty verdict on a basis that was legally unsound — he found M guilty on the basis that he had failed to take reasonable steps to ascertain “Mia’s” age. For the trial judge to have properly convicted M, he would have had to be satisfied beyond a reasonable doubt that M believed “Mia” was under the age of 16.

In the absence of s. 172.1(3) , which has been found to be of no force and effect, the Crown can no longer secure a conviction in the context of a police sting where there is no underage person by proving that the accused failed to take reasonable steps to ascertain the other person’s age once a representation as to age was made. Instead, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage.

To meet its burden, the Crown must show that the accused either (1) believed the other person was underage or (2) was wilfully blind as to whether the other person was underage. The second alternative is legally equivalent to the first. Conversely, a showing that the accused was merely reckless, rather than wilfully blind, as to whether the other person was underage will not ground a conviction. The “reasonable steps” that the accused is required to take under s. 172.1(4) are steps that a reasonable person, in the circumstances known to the accused at the time, would take to ascertain the other person’s age.

The reasonable steps requirement therefore has both objective and subjective dimensions: the steps must be objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. Reasonable steps are meaningful steps that provide information reasonably capable of supporting the accused’s belief that the other person was of legal age.

Relatedly, if the accused takes some initial steps that could reasonably support a belief that the other person is of legal age, but red flags are subsequently raised suggesting he or she may not be, then the accused may be required to take additional steps to ascertain the other person’s age. The requirement is an ongoing one. Reasonable steps need not be active.

There is no compelling reason, whether in a sting context or otherwise, for foreclosing the notion that arguably passive conduct — such as the receipt and consideration of unsolicited information — could provide information reasonably capable of supporting the accused’s belief that the other person was of legal age. Further, the accused is not required to exhaust all potential reasonable steps in order to invoke the defence. The reasonable steps requirement should be applied with a healthy dose of common sense.

The approach to assessing reasonable steps is a highly contextual one that accounts for the setting in which the communications take place: the Internet.

Accordingly, the defence that the accused believed the other person was of legal age operates in practice as follows: (1) in order to raise the defence, the accused bears the evidentiary burden of pointing to some evidence from which it may be found that he or she took reasonable steps and honestly believed the other person was of legal age — the accused must show that the defence has an air of reality; (2) if the accused discharges his or her evidentiary burden, the defence is left with the trier of fact, and the Crown then bears the

persuasive burden of disproving the defence beyond a reasonable doubt; and (3) regardless of whether the defence can be considered, thetrier of fact must ultimately determine whether the Crown has proven beyond a reasonable doubt that the accused believed the otherperson was underage. Thus, whether the accused is convicted or acquitted does not hinge on whether the accused took reasonable steps;it hinges on whether the Crown can prove culpable belief beyond a reasonable doubt.

Where an accused has failed to take reasonablesteps, the trial judge must instruct the jury that the accused’s evidence that he or she believed the other person was of legal age cannot beconsidered in determining whether the Crown has proven its case beyond a reasonable doubt. Where reasonable steps have not beentaken, an accused’s evidence that he or she believed the other person was of legal age is without any value, and the jury cannot rely onthat evidence when assessing the strength of the Crown’s case.

In that event, the sole question the jury must consider is whether — onthe whole of the evidence, including the evidence relating to the accused’s failure to take reasonable steps — the Crown has established,beyond a reasonable doubt, that the accused believed the other person was underage. It would be unwise to rule on the constitutional validity of the mandatory minimum under s. 172.1(2)(

a) of the Criminal Code in thisappeal since the courts below proceeded on the mistaken understanding that M could be convicted on the basis of his failure to takereasonable steps, and their conclusions on the s. 12 issue rested, at least in part, on this mistaken understanding. Furthermore, the partiesdid not have the opportunity to make submissions on this matter with the benefit of a clear statement from the Court as to the mens rearequired for a conviction. Per Karakatsanis J.: There is agreement with the majority regarding the proper

interpretation and constitutionality of ss. 172.1(3) and (4)of the Criminal Code and that the conviction should be set aside and a new trial ordered. However, it is incumbent on the Court toaddress the issue of the constitutionality of the mandatory minimum punishment set out in s. 172.1(2)(

a) of the Criminal Code in thiscase. Otherwise M, as well as other individuals convicted of a child luring offence by way of indictment, may find themselves subject toa mandatory minimum sentence that is constitutionally unsound. The mandatory minimum sentence in s. 172.1(2)(

a) violates s. 12 of the Charter and is not saved by s. 1.

Section 172.1(2)(

a) shouldtherefore be declared to be of no force and effect under s. 52 of the Constitution Act, 1982. To determine whether a mandatory minimumsentence imposes a grossly disproportionate punishment and thereby qualifies as cruel and unusual punishment, the mandatory minimumsentence for the relevant offence is compared to the fit and proportionate sentence that would otherwise be mandated by the sentencingprinciples found in the Criminal Code. If, in a reasonably foreseeable case, imposing the mandatory minimum would result in a grosslydisproportionate sentence, then the mandatory minimum violates s. 12.

When assessing a mandatory minimum in the context ofreasonably foreseeable cases, it will often be helpful to consider previously reported cases. In addition, judges should be guided by theirjudicial experience and need not limit their inquiry to only the facts of reported cases. The thrust of the s. 12 inquiry focuses onreasonably foreseeable applications of the law. Courts are required to consider the scope of the offence, the types of activities it penalizesand the reasonably foreseeable circumstances in which it may arise.

Given the gravity of the offence of child luring, there is no doubt that, in many cases, the appropriate sentence will be a term ofimprisonment that falls within the range contemplated by s. 172.1(2)(a). However, the offence casts a wide net since it can be committedin various ways, under a broad array of circumstances and by individuals with a wide range of moral culpability. This increases thelikelihood of the provision catching individuals whose conduct will not warrant punishment remotely close to that required by themandatory minimum sentence.

Indeed, the s. 172.1(1) jurisprudence demonstrates that the fit and proportionate sentence can besignificantly less than the one-year mandatory minimum term of imprisonment required by the Criminal Code. Furthermore, s. 172.1(1) is a hybrid offence with a disparity between the mandatory minimum sentences for individuals guilty of childluring on

summary conviction and those guilty on indictment. This strongly suggests that the one-year mandatory minimum for anindividual guilty of child luring on indictment violates s. 12 of the Charter. The 90-day mandatory minimum for

summary convictionoffences clearly demonstrates that Parliament understood that, in certain circumstances, a sentence far below that required by the one-year mandatory minimum would be appropriate. Sentencing someone to one year in jail when the fit and proportionate sentence wouldbe 90 days or less is intolerable and would be shocking to Canadians. It is a cruel and unusual punishment that violates s. 12 of theCharter and does not represent a justifiable infringement under s. 1 of the Charter. Per Abella J. (dissenting in part): M’s conviction should be set aside and an acquittal ordered.

The reasonable steps requirement in s. 172.1(4) constitutes an infringement of the right to make full answer and defence and thepresumption of innocence under ss. 7 and 11(

d) of the Charter, eroding these rights in a way that risks convicting the innocent. It istherefore unconstitutional. Striking down the presumption under s. 172.1(3) does not eliminate a second, objective path to convictionsince under s. 172.1(4), a conviction is available if the Crown proves beyond a reasonable doubt that the accused failed to takereasonable steps to ascertain the communicant’s age. To constitute child luring, the accused must believe the communicant to be a child.

Given the anonymous and unverifiable nature ofonline identities, the requirement to take “reasonable steps” to ascertain age in s. 172.1(4) may impose a nearly insurmountable barrier tothe accused’s ability to raise and defend his or her own innocent belief. Moreover, additional communications made in an effort toascertain age can put the accused at a heightened risk of being inculpated in the offence of child luring because of the inherent similaritybetween evidence going to reasonable steps and evidence of child luring in the Internet context.

The result of the reasonable stepsrequirement in s. 172.1(4) is therefore to render illusory the accused’s ability to allege an honest but mistaken belief in age. Thisconstitutes an interference with the accused’s fundamental right to make full answer and defence under s. 7 and the presumption ofinnocence under s. 11(d).

Section 172.1(4) cannot be saved under s. 1 of the Charter, since the harmful effects of the reasonable stepsrequirement outweigh any salutary impact. Cases Cited By Moldaver J. Applied: R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; considered: R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v.George, 2017 SCC 38, [2017] 1 S.C.R. 1021; referred to: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Alicandro, 2009

ONCA 133, 95 O.R. (3d) 173; R. v. Vaillancourt, (SCC), [1987] 2 S.C.R. 636; R. v. Lifchus, (SCC),[1997] 3 S.C.R. 320; R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Whyte, (SCC), [1988] 2 S.C.R.3; R. v. Downey, (SCC), [1992] 2 S.C.R. 10; R. v. Audet, (SCC), [1996] 2 S.C.R. 171; R. v. Pengelley,2010 ONSC 5488, 261 C.C.C. (3d) 93; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; RJR-MacDonald Inc. v. Canada (AttorneyGeneral), (SCC), [1995] 3 S.C.R. 199; R. v. Martineau, (SCC), [1990] 2 S.C.R. 633; R. v. Logan, (SCC), [1990] 2 S.C.R. 731; R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3; British Columbia (Attorney General)v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873; R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521; Attorney General of Quebecv. Carrières Ste-Thérèse Ltée, (SCC), [1985] 1 S.C.R. 831; Canada (Attorney General) v. JTI-Macdonald Corp., 2007SCC 30, [2007] 2 S.C.R. 610; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; Sansregret v. The Queen, (SCC), [1985]1 S.C.R. 570; United States of America v. Dynar, (SCC), [1997] 2 S.C.R. 462; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v.

Dragos, 2012 ONCA 538, 111 O.R. (3d) 481; R. v.Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; R. v. Ghotra, 2016 ONSC 1324, 334 C.C.C. (3d) 222; R. v. Cinous, 2002 SCC 29, [2002]2 S.C.R. 3; Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120; R. v. Osolin, (SCC), [1993] 4 S.C.R.595; R. v. Park, (SCC), [1995] 2 S.C.R. 836; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13,[2016] 1 S.C.R. 130; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; Miller v. The Queen, (SCC), [1977] 2S.C.R. 680; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. EJB, 2018 ABCA 239, 72 Alta. L.R. (6th) 29; R. v.

Hood, 2018NSCA 18, 45 C.R. (7th) 269. By Karakatsanis J. Referred to: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Smith (Edward Dewey), (SCC), [1987] 1 S.C.R.1045; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Nur, 2015 SCC 15,[2015] 1 S.C.R. 773; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v.Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Jarvis (2006), (ON CA), 211 C.C.C. (3d) 20; R. v. Folino, (ON CA), 2005 ONCA 258, 77 O.R. (3d) 641; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v.

Lacasse, 2015SCC 64, [2015] 3 S.C.R. 1089; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193; R. v.Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70; R. v. S. (S.), 2014 ONCJ 184, 307 C.R.R. (2d) 147; R. v. Crant, 2017 ONCJ 192; R. v. Read,2008 ONCJ 732; R. v. Dehesh, [2010] O.J. No. 2817; R. v. El-Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293; R. v. B. and S., 2014 BCPC94; R. v. Danielson, 2013 ABPC 26; R. v. Pelletier, 2013 QCCQ 10486. By Abella J. (dissenting in part) R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v.

Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; United States of America v. Dynar, (SCC), [1997] 2 S.C.R. 462; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Gibson, 2008 SCC 16, [2008] 1S.C.R. 397; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499; Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120; R.v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Saliba, 2013 ONCA 661, 304 C.C.C. (3d) 133; R. v. Duran, 2013 ONCA 343, 306O.A.C. 301; R. v. P. (L.T.) (1997), (BC CA), 113 C.C.C. (3d) 42; R. v. Sinclair, 2013 ABQB 745, 92 Alta. L.R. (5th)64; R. v. Malcolm, 2000 MBCA 77, 148 Man. R. (2d) 143; R. v.

Darrach (1998), (ON CA), 38 O.R. (3d) 1; R. v.Cornejo (2003), (ON CA), 68 O.R. (3d) 117; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v.Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; R. v. Dragos, 2012 ONCA 538, 111 O.R.(3d) 481; R. v. Pengelley, 2010 ONSC 5488, 261 C.C.C. (3d) 93; R. v. Osborne (1992), (NL CA), 102 Nfld. &P.E.I.R. 194; R. v. Mastel, 2011 SKCA 16, 268 C.C.C. (3d) 224; R. v. Adams, 2016 ABQB 648, 45 Alta. L.R. (6th) 171; R. v. Bayat,2011 ONCA 778, 108 O.R. (3d) 420; R. v. Froese, 2015 ONSC 1075.

Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d), 12. Constitution Act, 1982, s. 52(1). Criminal Code, R.S.C. 1985, c. C-46, ss. 150.1(4), (5), 152, 172.1, (1) [am. 2012, c. 1, s. 22], (2) [am. 2012, c. 1, s. 22], 273.2(b), 686(1)(b)(iii), 718, 718.1. Authors Cited Cairns Way, Rosemary. “Bill C-49 and the Politics of Constitutionalized Fault” (1993), 42 U.N.B.L.J. 325. Manning, Mewett & Sankoff: Criminal Law, 5th ed., by Morris Manning and Peter Sankoff. Markham, Ont.: LexisNexis, 2015. Stewart, Hamish C. “Legare: Mens Rea Matters” (2010), 70 C.R. (6th) 12.

Stewart, Hamish C. Sexual Offences in Canadian Law. Aurora, Ont.: Canada Law Book, 2004 (loose-leaf updated March 2018, release32). Stuart, Don. Canadian Criminal Law: A Treatise, 7th ed. Toronto: Carswell, 2014. Roach, Kent. Criminal Law, 7th ed. Toronto: Irwin Law, 2018. APPEAL and CROSS-APPEAL from a judgment of the Court of Appeal for Ontario (Watt, van Rensburg and Pardu JJ.), 2017 ONCA582, 350 C.C.C. (3d) 161, 385 C.R.R. (2d) 45, 136 O.R. (3d) 545, [2017] O.J.

No. 3600 (QL), 2017 CarswellOnt 10363 (WL Can.),affirming the conviction entered and the sentence imposed by Gage J., 2015 ONCJ 598, 341 C.R.R. (2d) 25, [2015] O.J. No. 4650 (QL),2015 CarswellOnt 13610 (WL Can.) and 2015 ONCJ 599, [2015] O.J. No. 5620 (QL), 2015 CarswellOnt 16408 (WL Can.). Appeal andcross-appeal allowed in part, Abella J. dissenting in part.

Andreea Baiasu , for the appellant/respondent on cross-appeal. Mark C. Halfyard , Salvatore Caramanna and Breana Vandebeek , for the respondent/appellant on cross-appeal. Jeffrey G. Johnston , for the intervener the Attorney General of Canada. Sylvain Leboeuf and Julie Dassylva , for the intervener the Attorney General of Quebec. Lara Vizsolyi , for the intervener the Attorney General of British Columbia. W. Dean Sinclair , Q.C. , for the intervener the Attorney General of Saskatchewan. Deborah Alford , for the intervener the Attorney General of Alberta.

Apple Newton-Smith , Daniel Brown and Colleen McKeown , for the intervener the Criminal Lawyers’ Association (Ontario). The judgment of Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. was delivered by Moldaver J. — I. Overview [ 1 ] In today’s information age, Canadian life is increasingly playing out in the digital realm. The Internet, social media, and sophisticated mobile devices — now fixtures in our everyday lives — have transformed the way in which we live, work, and interact with one another.

This opens up a world of new opportunities and allows us to connect instantly with friends and family across the world, whenever and wherever we want, and at relatively little cost. [ 2 ] But the Internet revolution — and the Internet itself — has a darker side. Increasingly, sexual predators are using electronic means to prey upon one of the most vulnerable groups within Canadian society: our children. Access to the Internet among Canadian children is now almost universal, and many are continuously connected, whether through a computer, a smartphone, or another device.

This has led to the new and distressing phenomenon of predators lurking in cyberspace, cloaked in anonymity, using online communications as a tool for meeting and grooming children with a view to sexually exploiting them. [ 3 ] In response, Parliament has enacted provisions in the Criminal Code , R.S.C. 1985, c. C-46 (“ Code ”), aimed at prohibiting child luring through telecommunications and ensuring that those who breach this prohibition receive a punishment that reflects the gravity and seriousness of the offence and the high degree of moral blameworthiness associated with it.

These provisions were the subject of this Court’s decisions in R. v. Legare , 2009 SCC 56 , [2009] 3 S.C.R. 551, and R. v. Levigne , 2010 SCC 25 , [2010] 2 S.C.R. 3, although in neither case was their constitutionality in issue. Here, however, the question on appeal is whether these provisions infringe the accused’s rights under the Canadian Charter of Rights and Freedoms (“ Charter ”). [ 4 ] The respondent, Douglas Morrison, posted an advertisement in the “Casual Encounters”

section of Craigslist, with the title “Daddy looking for his little girl – m4w – 45 (Brampton)”. A police officer, posing as a 14-year-old girl named “Mia”, responded to the ad. In conversations taking place over the span of more than two months, Mr. Morrison invited “Mia” to touch herself sexually and proposed that they meet to engage in sexual activity. These communications led to Mr. Morrison being charged with child luring under s. 172.1(1) (

b) of the Code . That provision prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 16 for the purpose of facilitating the commission of certain designated offences against that person — here, the offence of invitation to sexual touching directed at a person under the age of 16 contrary to s. 152 of the Code . [ 5 ] At trial, Mr. Morrison challenged the constitutionality of three subsections of the child luring provisions: s. 172.1(2) (a), (3) , and (4) .

His position on each is set out below in capsule form. [ 6 ] First, s. 172.1(3) provides that if the person with whom the accused was communicating (hereinafter referred to as “the other person”) was represented to the accused as being underage, then the accused is presumed to have believed that representation, absent evidence to the contrary. Mr. Morrison argued that this subsection violated his right to be presumed innocent under s. 11(

d) of the Charter . [ 7 ] Second, s. 172.1(4) bars an accused from raising, as a defence, that he or she believed the other person was of legal age, unless the accused took reasonable steps to ascertain the other person’s age. At trial, Mr. Morrison asserted that s. 172.1(4) violated ss. 7 and 11(

d) of the Charter . Before the Court of Appeal and this Court, he argued that s. 172.1(4) was unconstitutional because it allows for a conviction on the basis of objective fault, notwithstanding the high stigma and severe punishment attached to a conviction for child luring, thereby violating the principles of fundamental justice under s. 7 of the Charter . [ 8 ] Third, s. 172.1(2)(

a) prescribes a mandatory minimum sentence of one year’s imprisonment if the Crown proceeds by way of indictment — the election made by the Crown in Mr. Morrison’s case. Mr. Morrison argued that this mandatory minimum violated his right not to be subjected to cruel and unusual punishment under s. 12 of the Charter . [ 9 ] The trial judge agreed with Mr. Morrison that the presumption under s. 172.1(3) violated his right to be presumed innocent under s. 11(

d) of the Charter . He disagreed, however, that the reasonable steps requirement under s. 172.1(4) was constitutionally invalid. Despite being left with a reasonable doubt as to whether Mr. Morrison believed “Mia” was under the age of 16, the trial judge held that subs. (4) provided an independent pathway to conviction and convicted Mr. Morrison on the basis that he had not taken reasonable steps to ascertain “Mia’s” age. At sentencing, the trial judge concluded that the mandatory minimum under s. 172.1(2)

(

a) was grossly disproportionate when applied to Mr. Morrison and therefore violated s. 12 of the Charter . In the result, he sentenced Mr. Morrison to four months’ imprisonment and probation for a year. On appeal, the Ontario Court of Appeal upheld Mr. Morrison’s conviction and sentence and each of the trial judge’s conclusions on the three constitutional questions outlined above. [ 10 ] Before this Court, the Crown appeals from the decision of the Court of Appeal, submitting that the court erred in holding that the presumption under s. 172.1(3) violates s. 11(

d) of the Charter and that the mandatory minimum under s. 172.1(2)(

a) infringes s. 12 of the Charter . Mr. Morrison cross-appeals, asserting that the Court of Appeal erred in finding that the reasonable steps requirement under s. 172.1(4) does not infringe s. 7 of the Charter . [ 11 ] For the reasons that follow, I would dismiss the Crown’s appeal on the s. 172.1(3) issue and Mr. Morrison’s cross- appeal on the s. 172.1(4) issue. In my view, the presumption under subs. (3) infringes s. 11(

d) of the Charter and cannot be saved under s. 1 . Further, I agree with the courts below that subs. (4) does not violate s. 7 of the Charter . [ 12 ] However, unlike the courts below, I do not read the reasonable steps requirement under subs. (4), in the absence of the presumption under subs. (3), as providing an independent pathway to conviction. Instead, it simply bars accused persons from raising, as a defence, that they believed the other person was of legal age when they did not take reasonable steps to ascertain the other person’s age. [ 13 ] Consequently, in order to convict Mr.

Morrison, the Crown would have had to satisfy the trial judge beyond a reasonable doubt that Mr. Morrison believed “Mia” was under the age of 16. But because the trial judge was left with a reasonable doubt in this regard, Mr. Morrison’s conviction cannot stand. [ 14 ] As for the question of remedy, given that the trial judge entertained a reasonable doubt on the issue of Mr. Morrison’s belief, Mr. Morrison would ordinarily be entitled to an acquittal.

But in this case, for reasons I will develop, I am of the view that fairness considerations militate in favour of a new trial — one conducted in accordance with the correct legal framework. [ 15 ] Finally, the courts below proceeded on an incorrect understanding that s. 172.1 allows for a conviction based on a failure to take reasonable steps.

The parties’ arguments before this Court concerning the constitutionality of the mandatory minimum reflect the erroneous assumption flowing from this: namely, that mere negligence is sufficient to support a conviction (something that the trial judge gave effect to in sentencing Mr. Morrison). In light of this, I am of the view that it would be unwise to decide whether the one- year mandatory minimum under s. 172.1(2)(

a) runs afoul of s. 12 of the Charter on this appeal. Accordingly, I would set aside that aspect of the Court of Appeal’s decision and remit the matter to the presiding judge at the new trial, should Mr. Morrison be convicted again. II. Statutory Provisions [ 16 ]

Section 172.1 of the Code contains four components, each housed in its own subsection. Those components, and the corresponding subsections, are: (1) a prohibition against child luring; (2) the punishments available on conviction; (3) a presumption regarding the accused’s belief in the other person’s age; and (4) a limitation on the defence that the accused believed the other person was of legal age. Luring a child 172.1

(1) Every person commits an offence who, by a means of telecommunication, communicates with (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2); (

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 271, 272, 273 or 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 14 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 two years less aday and to a minimum punishment of imprisonment for a term of six months. Presumption re age

(3) Evidence that the person referred to in paragraph (1)(a), (

b) or (

c) was represented to the accused as being under the age of eighteenyears, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believedthat the person was under that age. No defence

(4) It is not a defence to a charge under paragraph (1)(a), (

b) or (

c) that the accused believed that the person referred to in that paragraphwas at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps toascertain the age of the person. III. Facts [17] In early 2013, Mr. Morrison placed the following ad on the “Casual Encounters”

section of Craigslist: Daddy looking for his little girl – m4w – 45 (Brampton) 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 theplace all to ourselfs too, in the Brampton and Knightsbridge area. (2015 ONCJ 599, at para. 21 ) [18] Police Constable Hilary Hutchinson responded to the ad, posing as a 14-year-old girl named “Mia”. From February5, 2013 until May 21, 2013, Mr. Morrison and “Mia” exchanged messages, as summarized below. [19] In her initial e-mail response to Mr. Morrison’s ad, “Mia” said she was 14 years old.

The conversation soon becamesexual in nature, with Mr. Morrison asking “Mia” what sexual acts she had performed and inviting her to touch herself sexually. Thesexualized conversation continued over the following months. At various points, Mr. Morrison suggested to “Mia” that she watchpornography and continued to invite her to touch herself sexually. Mr. Morrison also suggested that “Mia” should skip school and meethim in Brampton, where he would pick her up so they could engage in sexual activity. This meeting did not occur. [20] During these conversations, “Mia” repeatedly mentioned that she was 14 years old.

She used language consistentwith her represented age, including common abbreviations and certain misspellings. She also referred to her classes at school, her momand grandma, and her recreational activities — playing sports, hanging out with her friends, and listening to music. Her messages weresent before and after school hours on weekdays. [21] On more than one occasion, Mr. Morrison asked “Mia” to send him a photo, but she never did. He also asked for herphone number, which she provided. After a missed call on April 26, 2013, Mr. Morrison ceased contact with “Mia”. On May 10, 2013,“Mia” texted Mr.

Morrison, “R U Mad at me?”: 2015 ONCJ 599, at para. 21. Almost two weeks later, he replied, “Who are you?”: para.21. [22] Mr. Morrison was arrested on May 23, 2013 and charged with child luring under s. 172.1(1)(

b) of the Code — therelevant secondary offence being invitation to sexual touching directed at a person under the age of 16 contrary to s. 152 of the Code. [23] At the time of arrest, Constable Hutchinson informed Mr. Morrison that a complaint had been received from theguardian of a 14-year-old child. In response, Mr. Morrison stated: “I was only talking to one girl” (2015 ONCJ 599, at para. 17 (emphasisdeleted)).

When he was later interviewed by Constable Hutchinson and told that the police had received a complaint that he was speakingto a 14-year-old girl for a sexual purpose on the Internet, he responded: “So that means you can’t talk to anybody then? OK” (para. 21).When Constable Hutchinson told him that talking to people under a certain age about sexual acts is prohibited, Mr. Morrison replied: “Idon’t know whether she was or not so” (para. 21). Mr.

Morrison also stated that he was unsure of “Mia’s” age and that, on the Internet,“you don’t really know” whether you are speaking to a child or an adult: 2017 ONCA 582, 350 C.C.C. (3d) 161, at para. 20. [24] At his trial, Mr. Morrison testified that he believed he was communicating with an adult female engaged in role-playwho was determined to stay in character. He also emphasized that the

section of Craigslist in which he posted his ad requires users toconfirm they are at least 18 years of age. On cross-examination, however, he admitted that this requirement is effectively useless becausepersons under 18 can get around it simply by clicking a button. He also admitted that he asked “Mia” for a photo to assess her level ofattractiveness, not to determine her age.

IV. Decisions Below A. Ontario Court of Justice (Gage J.)

(1) Reasons for Charter Ruling (2014 ONCJ 673) [25] Mr. Morrison brought an application challenging the constitutional validity of the combined operation of s. 172.1(3)and (4) of the Code under ss. 11(

d) and 7 of the Charter. [26] The trial judge, Gage J., accepted Mr. Morrison’s submission that the presumption under s. 172.1(3) violated thepresumption of innocence under s. 11(

d) of the Charter. In his view, a statutory presumption establishing an essential element of theoffence will be unconstitutional “unless there exists an inexorable connection between the fact that engages the presumption (here, arepresentation as to age) and the existence of the essential element (the accused’s belief as to the [other person]’s age)”: para. 25. Applying this principle, he found no such inexorable connection between the representation and the accused’s belief: para. 26.The Crown made no attempt to justify the s. 11(

d) infringement. Accordingly, the trial judge held s. 172.1(3) to be of no force and effectin the case before him. [27] On the other hand, the trial judge held that the reasonable steps requirement under s. 172.1(4) complied with theCharter. He concluded that the effect of subs. (4) was merely to impose a tactical burden on the accused; it did not reverse the burden ofproof or criminalize innocent behaviour. He therefore found s. 172.1(4) to be constitutionally valid.

(2) Reasons for Conviction (2015 ONCJ 599) [28] The trial judge then turned to whether Mr. Morrison could be convicted under s. 172.1(1)(

b) in the absence of thepresumption under s. 172.1(3). He took the view that s. 172.1(1)(

b) contemplated two independent pathways to conviction: the Crownhad to establish beyond a reasonable doubt that the accused either (1) believed the other person was under the age of 16 or (2) failed totake reasonable steps to ascertain the other person’s age. [29] Beginning with the first potential pathway to conviction, the trial judge stated that he was “satisfied beyond areasonable doubt that [Mr. Morrison] was at least indifferent to the age of the person he was communicating with”: para. 26.

He clarifiedthat by “indifferent” he meant “simply not turning his mind to the question in any meaningful way”: para. 27. He added, however, thatindifference is “not the equivalent of belief”, and he clarified that he did not find Mr. Morrison to have been wilfully blind: paras. 26-27.Rather, he considered Mr. Morrison’s state of mind to be “closer to negligence rather than the sort of advertence necessary to sustain afinding of an actual belief [o]n his part that Mia was underage”: para. 27. In his view, Mr.

Morrison’s evidence that he believed he wascommunicating with an adult woman was “sufficient, if barely so, to inspire a reasonable doubt concerning his subjective belief regardingthe age of the person with whom he was communicating”: para. 28. He reached this conclusion despite his earlier observation that “[Mr.]Morrison’s stated assumption that he was dealing with an adult determined to remain in character is an assumption without anysupporting foundation”: para. 23. [30] Turning to the second potential pathway to conviction, the trial judge concluded that Mr.

Morrison had failed to takereasonable steps to ascertain “Mia’s” age, which in his view was sufficient to enter a conviction. He found that none of the steps Mr.Morrison pointed to as constituting reasonable steps — including posting the ad in an adult-only

section of Craigslist, using a specificterm of art allegedly relating to a known and popular form of adult role-play (daddy/little girl), asking “Mia” for her age and photos, andthe nature of the initial exchange of e-mails being such that only adult persons interested in role-play would continue the dialogue —qualified as reasonable steps. On that basis, he entered a guilty verdict.

(3) Reasons for Charter Ruling and Sentence (2015 ONCJ 598, 341 C.R.R. (2d) 25) [31] Following his conviction, Mr. Morrison renewed his attack on the constitutionality of the reasonable stepsrequirement under s. 172.1(4) and, in addition, challenged the mandatory minimum of one year’s imprisonment under s. 172.1(2)(

a) asinfringing s. 12 of the Charter. [32] The trial judge again dismissed the Charter challenge to the reasonable steps requirement. However, he concludedthat the mandatory minimum under s. 172.1(2)(

a) violated s. 12 of the Charter. In his view, a four-month sentence followed by a year ofprobation was a fit sentence in Mr. Morrison’s case, having regard to the circumstances of the offence, including the fact that Mr.Morrison was merely indifferent or negligent as to “Mia’s” age, and Mr. Morrison’s personal situation. In light of this determination, heheld that a sentence of one year would be grossly disproportionate and that the mandatory minimum under s. 172.1(2)(

a) was of no forceor effect in the case before him. B. Court of Appeal for Ontario (Watt, van Rensburg and Pardu JJ.A.) (2017 ONCA 582, 350 C.C.C. (3d) 161) [33] Justice Pardu, writing for a unanimous panel of the Ontario Court of Appeal, upheld the trial judge’s conclusions onall three constitutional issues. [34] First, the Court of Appeal agreed with the trial judge that s. 172.1(3) infringed s. 11(

d) of the Charter. It reasonedthat, even absent evidence to the contrary, it “does not follow inexorably from proof that the [other person] represented that he or she isunderage that the accused believed the representation”, emphasizing that representations on the Internet are “notoriously unreliable” anddeception is “rampant”: paras. 59-60. Further, the Court of Appeal concluded that this infringement could not be justified under s. 1because it was neither minimally impairing nor proportionate.

Thus, relying on s. 52(1) of the Constitution Act, 1982, it declared s.172.1(3) to be of no force and effect. [35] Second, the Court of Appeal agreed with the trial judge that s. 172.1(4) did not infringe s. 7 of the Charter. In itsview, “if the Crown fails to prove that the accused believed that the other person was underage, the Crown will still obtain a convictionif it proves beyond a reasonable doubt that the accused failed to take reasonable steps to ascertain the other person’s age”: para. 79. The

court acknowledged that the reasonable steps requirement added an “objective dimension” to the fault requirement for child luring: para. 95. It reasoned, however, that although child luring was an offence that carried a high degree of stigma and a severe punishment, it was not one of those exceptional offences that requires a purely subjective standard of fault. For that reason, it found s. 172.1(4) to be constitutionally sound. [ 36 ] Third, the Court of Appeal agreed with the trial judge that the mandatory minimum under s. 172.1(2)(

a) was grossly disproportionate when applied to Mr. Morrison. Accordingly, relying on s. 52(1) of the Constitution Act, 1982 , the Court of Appeal declared the mandatory minimum under s. 172.1(2)(

a) to be of no force and effect. [ 37 ] Before this Court, the Crown appeals from the decision of the Court of Appeal, submitting that the court erred in holding that the presumption under s. 172.1(3) and the mandatory minimum under s. 172.1(2)(

a) are constitutionally invalid. Mr. Morrison cross-appeals, challenging the Court of Appeal’s conclusion that the reasonable steps requirement under s. 172.1(4) is constitutionally valid. V. Issues [ 38 ] The parties raise three main issues:

(1) Does the presumption under s. 172.1(3) of the Code violate s. 11(

d) of the Charter ?

(2) Does the reasonable steps requirement under s. 172.1(4) of the Code violate s. 7 of the Charter ?

(3) Does the mandatory minimum sentence of one year’s imprisonment under s. 172.1(2) (

a) of the Code violate s. 12 of the Charter ? VI. Analysis A. The Offence of Child Luring [ 39 ] Before turning to the three issues raised on appeal, I find it useful to first describe the nature and purpose of the child luring offence. Parliament created this offence to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means.

As this Court explained in Levigne , the offence seeks to protect children by “identify[ing] and apprehend[ing] predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents”: para. 24. [ 40 ] To achieve this purpose, s. 172.1 criminalizes conduct that precedes the commission, or even the attempted commission, of certain designated offences, most of which involve sexual exploitation of children.

It thereby creates an essentially inchoate offence — that is, a preparatory crime that captures conduct intended to culminate in the commission of a completed offence: see Legare , at para. 25 ; R. v. Alicandro , 2009 ONCA 133 , 95 O.R. (3d) 173, at para. 20 , citing A. Ashworth, Principles of Criminal Law (5th ed. 2006), at pp. 468-70. There is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences: see Legare , at para. 25 .

The offence reflects Parliament’s desire to “close the cyberspace door before the predator gets in to prey”: para. 25. [ 41 ] This Court considered the child luring offence most recently in Levigne . There, the accused communicated by computer for a sexual purpose with an undercover officer posing as a 13-year-old boy and was subsequently charged with child luring under s. 172.1 of the Code . At trial, he admitted that he had taken no steps to ascertain the other person’s age, despite repeated representations by the person that he was underage.

The trial judge nevertheless entered an acquittal on the basis that he was left with a reasonable doubt as to whether the accused believed the other person was underage. [ 42 ] The question on appeal was whether the trial judge was bound by the combined effect of s. 172.1(3) and (4) to convict the accused notwithstanding his state of reasonable doubt as to whether the accused believed the other person was underage. The Alberta Court of Appeal held that he was.

This Court did the same. [ 43 ] Fish J., for a unanimous Court, explained that the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; [1] (2) with a person who is, or who the accused believes is, under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person: para. 23. [ 44 ] He then turned to s. 172.1(3) and (4) , which he characterized as “close companion[s]”: para. 3.

He noted that under subs. (3), where the person is represented to the accused as being underage, the accused is presumed to have believed that representation, absent evidence to the contrary. The purpose of this provision, he stated, was to “facilitat[e] the prosecution of child luring offences while leaving intact the burden on the Crown to prove guilt beyond a reasonable doubt”: para. 30. [ 45 ] Under subs. (4), he observed, accused persons could not raise the defence that they believed the other person was of legal age unless they “took reasonable steps to ascertain the age of the person”.

He characterized the purpose of this provision as being “to foreclose exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis”: para. 31. [ 46 ] Fish J. held, at para. 32, that the combined effect of these two subsections “should be understood and applied” in the following manner: 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 tooksteps 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 theinterlocutor 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 areasonable doubt whether the accused in fact believed that his or her interlocutor was not underage. [47] In this passage, Fish J. reads subss. (3) and (4) together.

He interprets the former to prohibit an accused fromrebutting the presumption of belief if the accused did not take reasonable steps to ascertain the other person’s age. In other words, Fish J.reads the reasonable steps requirement in subs. (4) into subs. (3) so as to cohere with the intention of Parliament as he understood it. [48] From the foregoing — constitutional considerations aside — I understand the presumption under subs. (3) and thedefence under subs. (4) to operate together as follows.

Where the other person is represented to the accused as being underage, thepresumption that the accused believed the other person was underage applies. However, this presumption is rebuttable — it will bedisplaced by evidence to the contrary: para. 32(2). Evidence to the contrary must include evidence that the accused took reasonable stepsto ascertain the other person’s age: para. 32(2). By virtue of subs. (4), to raise this defence, the accused bears an initial evidentiaryburden of pointing to some evidence capable of showing that he or she took reasonable steps: para. 32(3).

The Crown then bears thepersuasive burden of proving beyond a reasonable doubt that the accused failed to take such steps: para. 32(3). If the accused fails todischarge his or her evidentiary burden under subs. (4) or if the Crown proves that the accused failed to take reasonable steps, then thepresumption under subs. (3) is not rebutted and the accused is conclusively deemed to have believed that the other person was underage:para. 32(2) and (3).

In that scenario, the Crown will have met its burden of proving the second element of the offence: that the accusedbelieved the other person was underage. [49] Therefore, under Levigne, the combined effect of subss. (3) and (4) is to create two pathways to conviction where theother person is represented as being underage to the accused: the Crown must prove that the accused either (1) believed the other personwas underage or (2) failed to take reasonable steps to ascertain the other person’s age.

In the context of child luring cases involvingpolice sting operations, such as in Levigne, where it can be assumed that the undercover police officer posing as a child will representthat he or she is underage, these two pathways to conviction would have been available to the trier of fact. [50] Importantly, however, the constitutionality of s. 172.1(3) and (4) was not in issue in Levigne: see para. 3. In thepresent appeal, the circumstances are different.

This Court is now asked to rule upon the constitutionality of s. 172.1(3) and (4), as wellas the constitutionality of the mandatory minimum under s. 172.1(2)(a), for the first time. I will now consider those issues in turn,beginning with s. 172.1(3) and (4) and assessing how a finding of unconstitutionality in respect of either or both impacts on the analysisin Levigne. B. The Presumption Under

Section 172.1(3)

(1) Does the Presumption Under

Section 172.1(3) Violate

Section 11(

d) of the Charter? [51]

Section 11(

d) of the Charter protects the accused’s right to be presumed innocent until proven guilty. Before anaccused can be convicted of an offence, the trier of fact must be satisfied beyond a reasonable doubt that all of the essential elements ofthe offence have been proved: see R. v. Vaillancourt, (SCC), [1987] 2 S.C.R. 636, at p. 654. This is one of the principalsafeguards for ensuring, so far as possible, that innocent persons are not convicted: see R. v. Lifchus, (SCC), [1997] 3S.C.R. 320, at para. 13.

The right to be presumed innocent is violated by any provision whose effect is to allow for a conviction despitethe existence of a reasonable doubt: see Vaillancourt, at pp. 654-56; R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, atpara. 24. [52] Various provisions of the Code establish presumptions whereby proof of one fact is presumed to be proof of one ofthe essential elements of an offence. Any such presumption will comply with s. 11(

d) solely if proof of the substituted fact leads“inexorably” to the existence of the essential element that it replaces: see R. v. Whyte, (SCC), [1988] 2 S.C.R. 3, at pp.18-19; R. v. Downey, (SCC), [1992] 2 S.C.R. 10, at pp. 29-30; R. v. Audet, (SCC), [1996] 2 S.C.R.171, at para. 44. Only then will there be no possibility that the substitution might result in the accused being convicted despite theexistence of a reasonable doubt: see Audet, at para. 44. [53] To be clear, the nexus requirement for demonstrating that a statutory presumption does not offend the presumptionof innocence is strict.

It is not one of mere “likelihood” or “probability”, nor is it one satisfied by a “common sense” or “rational”inference. Rather, this Court’s jurisprudence demonstrates that the connection between proof of the substituted fact and the existence ofthe essential element it replaces must be nothing less than “inexorable”. An “inexorable” link is one that necessarily holds true in allcases.

[54] Given the stringency of this test, for reasons that follow, I am satisfied that the presumption under s. 172.1(3)offends s. 11(

d) of the Charter. [55] In the context of a sting operation where there is no underage person — which, to be clear, is the specific context towhich these reasons are restricted — s. 172.1(1)(

b) stipulates that in order to secure a conviction, the Crown must prove beyond areasonable doubt that, among other things, the accused believed the other person was under the age of 16. Subsection 172.1(3), however,creates a presumption that proof that the other person was represented to the accused as being under 16 will, absent evidence to thecontrary, stand in for proof of the essential element that the accused believed the other person was under 16. [56] The Crown maintains that the presumption under s. 172.1(3) does not infringe s. 11(

d) because the presumption isrebuttable where there is evidence to the contrary. With respect, I cannot agree. A basic fact presumption will infringe s. 11(

d) if proof ofthe basic fact is not capable, in itself, of satisfying the trier of fact beyond a reasonable doubt of the presumed fact. (This is another wayof articulating the “inexorable connection” test). The accused’s opportunity to raise or identify evidence to the contrary does not resolveor attenuate the s. 11(

d) problem created when proof of a basic fact does not lead inexorably to acceptance of the presumed fact. This isbecause the presumption of innocence requires that the Crown “establi[sh] the guilt of the accused beyond a reasonable doubt before theaccused must respond”: St-Onge Lamoureux, at para. 24 (emphasis added); see also Downey, at p. 23. [57] The mere fact that a representation of age was made to the accused does not lead “inexorably” to the conclusion thatthe accused believed that representation, even absent evidence to the contrary.

To be sure, a trier of fact may well infer, on the evidence,that the accused believed the representation. But that is not the test. The test is whether the connection between the proven fact and theexistence of the essential element it replaces is “inexorable”. That test is not met here. [58] Deception and deliberate misrepresentations are commonplace on the Internet: see R. v. Pengelley, 2010 ONSC5488, 261 C.C.C. (3d) 93, at para. 17.

As the Court of Appeal in this case aptly put it: There is simply no expectation that representations made during internet conversations about sexual matters will be accurate or that aparticipant will be honest about his or her personal attributes, including age. Indeed, the expectation is quite the opposite, as true personalidentities are often concealed in the course of online communication about sexual matters. [para. 60] [59] Here, for example, there is evidence that Mr. Morrison himself made a misrepresentation about his age on the ad heposted: he claimed to be 45 when he was really in his sixties.

On the Internet, it may simply be expected that true personal identities areconcealed, even when there is no evidence suggesting a misrepresentation in the particular case. [60] It follows that where a representation of age is made online, the trier of fact could still be left with a reasonabledoubt at the close of the Crown’s case as to whether the accused believed the other person was underage.

Yet, despite the trier of fact’sown reasonable doubt, the accused’s belief that the other person was underage would be deemed to be established beyond a reasonabledoubt by virtue of s. 172.1(3) unless the accused did something to rebut the presumption.

The presumption in s. 172.1(3) thereforecontravenes s. 11(d); it will only be acceptable for an accused to bear a tactical burden to rebut a basic fact presumption where proof ofthe basic fact leads inexorably to acceptance of the presumed fact. [61] I pause to note that “evidence to the contrary” under subs. (3) would not include the inherent unreliability ofrepresentations made over the Internet; it refers instead to evidence which is specific to the particular circumstances of the accused andindicates that he or she did not believe the other person was underage.

As Fish J. noted in Levigne, “evidence to the contrary” mustinclude steps to ascertain the other person’s age: para. 32(2). Further, if “evidence to the contrary” were to be read so broadly as toinclude the dubious nature of Internet communications or other forms of telecommunication, then the presumption would be renderedmeaningless. Since an offence under s. 172.1 necessarily includes some form of telecommunication, the Crown would never be able torely on the presumption because there would always be some evidence to the contrary.

In my view, this was plainly not Parliament’sintent. [62] In sum, because proof of a representation as to age does not lead inexorably to the existence of the essential elementthat the accused believed the other person was underage — even absent evidence to the contrary — the presumption under s. 172.1(3)violates the presumption of innocence under s. 11(

d) of the Charter.

(2) Can the Infringement Be Saved Under

Section 1 of the Charter? [63] Under the Oakes test (R. v. Oakes, (SCC), [1986] 1 S.C.R. 103), a Charter infringement can bejustified under s. 1 where the party seeking to justify that infringement can demonstrate that: (1) the law creating the infringement has a pressing and substantial objective; and (2) the means chosen are proportionate in that: (

a) they are rationally connected to the law’s objective; (

b) they limit the Charter right in question as little as reasonably possible in order to achieve the law’s objective; and

(

c) the law’s salutary effects are proportionate to its deleterious effects on the affected Charter right. [64] The Crown did not attempt to justify the s. 11(

d) infringement under s. 1 at trial. Nonetheless, I will consider theCrown’s submissions and explain why, in my view, the Charter violation here cannot be justified. (

a) Pressing and Substantial Objective and Rational Connection [65] The purpose of the child luring prohibition as a whole is, as identified above, to protect children by “identify[ing]and apprehend[ing] predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable childrenand adolescents”: Levigne, at para. 24; see also Alicandro, at para. 36 (stating that s. 172.1 “was enacted to protect children against thevery specific danger posed by certain kinds of communications via computer systems”).

It seeks to “close the cyberspace door before thepredator gets in to prey”: Legare, at para. 25. This overarching purpose is undoubtedly pressing and substantial: see R. v. K.R.J., 2016SCC 31, [2016] 1 S.C.R. 906, at para. 66. [66] The main purpose of s. 172.1(3) in particular — which is the focus of the inquiry at this stage (see RJR-MacDonaldInc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at para. 144 (“RJR-MacDonald”)) — is to facilitateprosecution of the child luring offence: see Levigne, at para. 30.

The prosecution of child luring offences is connected to the broaderobjective of protecting children from online sexual predators: see Alicandro, at para. 36. The parties agree that s. 172.1(3) has a pressingand substantial objective and that the Charter limit it creates is rationally connected to that objective. For present purposes, withoutfinally deciding the issue, I am prepared to accept their concessions in this regard. (

b) Minimal Impairment [67] In my view, however, the presumption under s. 172.1(3) fails the minimal impairment test. [68] To show minimal impairment, the party seeking to justify the infringement must demonstrate that the impugnedmeasure impairs the right in question “as little as reasonably possible in order to achieve the legislative objective”: RJR-MacDonald, atpara. 160.

The impairment must be “minimal” in the sense that it impairs the right in question “no more than necessary”: para. 160. [69] Here, the presumption under s. 172.1(3) is designed to facilitate prosecution of the child luring offence, which isconnected to the broader objective of protecting children from online sexual predators. But the Crown has failed to establish that, absentthe presumption, the child luring provision cannot operate effectively.

Where the other person is represented to the accused as beingunderage, the trier of fact can, on the basis of evidence (including the record generated by police), draw a logical, common senseinference that the accused believed that representation.

The Court of Appeal captured this point well: At trial, the Crown can ask the trier of fact to infer that the accused believed the [other person] was underage based on all the facts in therecord, including: the content of the communication; whether representations as to age were made; the tone of the communications; thenature of the forum used; the frequency of communications; whether photographs were exchanged; and all of the other infinitely variablecircumstances surrounding the exchange. This approach is routinely part of the work of trial courts.

It need not involve limiting theaccused’s right to be presumed innocent by means of the presumption of belief in s. 172.1(3) of the Code. The absence of thepresumption would not undermine the prosecution of the child luring offence. [para. 72] [70] Put simply, a less intrusive means of achieving the state’s overarching objective would be to do away with thepresumption under s. 172.1(3) and instead rely on the prosecution’s ability to secure convictions by inviting the trier of fact to find, basedon a logical, common sense inference drawn from the evidence, that the accused believed the other person was underage.

Indeed, thisprocess of inferential reasoning is not unfamiliar to judges and juries, who engage in this type of reasoning day in and day out. [71] Because the Crown has not shown that the presumption under s. 172.1(3) infringes the right to be presumed innocent“as little as reasonably possible in order to achieve the legislative objective” of prosecuting child luring offences and thereby protectingchildren from online sexual predators, it cannot be saved under s. 1: RJR-MacDonald, at para. 160. (

c) Balancing [72] In addition, I am of the view that the deleterious effects of the presumption under s. 172.1(3) outweigh its salutaryeffects. As alluded to above, the Crown has not shown that the salutary effects of the presumption are significant, even in the context ofan offence as serious as child luring. And to the extent, if any, that the presumption actually results in additional convictions, it does soonly by sweeping in accused persons whose belief as to the other person’s age may be the subject of a reasonable doubt in the mind ofthe trier of fact.

Although the presumption may ease the Crown’s burden of proving its case, prosecutorial convenience and expediencycannot justify the risk of convicting the innocent created by subs. (3).

(3) Conclusion [73] In sum, the presumption under s. 172.1(3) infringes s. 11(

d) of the Charter, and that infringement cannot be justifiedunder s. 1. I therefore agree with the Court of Appeal that s. 172.1(3) should be declared to be without force or effect pursuant to s.52(1) of the Constitution Act, 1982. C. The Reasonable Steps Requirement Under

Section 172.1(4)

(1) Does the Reasonable Steps Requirement Under

Section 172.1(4) Violate

Section 7 of the Charter? [74]

Section 7 of the Charter establishes that “[e]veryone has the right to life, liberty and security of the person and theright not to be deprived thereof except in accordance with the principles of fundamental justice”. Mr. Morrison submits that thereasonable steps requirement of s. 172.1(4) violates s. 7 of the Charter by allowing for a conviction, and resulting imprisonment, wherethe accused has simply been negligent in failing to take reasonable steps to ascertain the other person’s age. This, in his view, would

deprive him of his liberty in violation of the principles of fundamental justice. [75] To accord with the principles of fundamental justice, the mental element of an offence must “maintain aproportionality between the stigma and punishment attached to a [conviction for the offence] and the moral blameworthiness of theoffender”: R. v. Martineau, (SCC), [1990] 2 S.C.R. 633, at p. 646; see also R. v. Logan, (SCC), [1990]2 S.C.R. 731, at p. 743; H. C. Stewart, Sexual Offences in Canadian Law (loose-leaf), at p. 4-27.

This Court has recognized that a smallgroup of offences, including murder and attempted murder, carry such stigma and punishment that they require a purely subjectivestandard of fault: see Vaillancourt, at pp. 653-54; Martineau, at p. 646; R. v. Creighton, (SCC), [1993] 3 S.C.R. 3, at p.18.

However, “an objective fault requirement is constitutionally sufficient for a broad range of offences” beyond this limited class:Creighton, at p. 18. [76] As discussed above, in Levigne, this Court implicitly held that the combined effect of subss. (3) and (4) was to createtwo pathways to conviction where the other person is represented to the accused as being underage. In such circumstances, the accusedis presumed under subs. (3) to have believed that the other person was underage unless there is evidence that the accused took reasonablesteps to ascertain the other person’s age.

In effect, therefore, the required mens rea is established where the Crown proves that theaccused either (1) believed the other person was underage or (2) failed to take reasonable steps to ascertain the other person’s age. [77] The trial judge proceeded on the basis that although s. 172.1(3) infringed s. 11(

d) of the Charter and as such was ofno force or effect in the case before him, these two pathways to conviction nonetheless remained available. Having been left with areasonable doubt as to whether Mr. Morrison believed “Mia” was underage, he pursued the second pathway to conviction, finding Mr.Morrison guilty on the basis that he had failed to take reasonable steps to ascertain “Mia’s” age as required under s. 172.1(4). The Courtof Appeal endorsed this approach. [78] Mr. Morrison submits that the courts below erred in failing to find that s. 172.1(4) infringes s. 7 of the Charter.

Hemaintains that in allowing for a conviction based on a failure to take reasonable steps, subs. (4) makes the child luring offence anobjective mens rea offence, allowing for convictions based on mere negligence. This, he says, violates the principles of fundamentaljustice because the stigma and punishment associated with the child luring offence are so serious that subjective mens rea alone willsuffice to sustain a conviction. [79] I agree with Mr. Morrison that a conviction for child luring carries a high degree of stigma and a potentially severepunishment.

The offence of child luring is punishable by up to 14 years’ imprisonment, and the offender is also subject to a lengthyregistration as a sex offender. Child luring is a serious crime that undermines the safety of our children and preys on their vulnerability.The stigma and punishment that attach to a conviction are thus rightfully high and severe. That said, I am very doubtful that this stigmaand punishment rise to the level of requiring purely subjective mens rea. In any event, for reasons that will become apparent, I find itunnecessary to decide that issue here. [80] In short, I reject Mr.

Morrison’s submission that s. 172.1(4) breaches s. 7 of the Charter.[2] In reaching thisconclusion, I part ways with the courts below in the following key respect: in my view, the reasonable steps requirement under s.172.1(4) does not, in the absence of the presumption under s. 172.1(3), provide a second pathway to conviction.

Instead, as I will explain,it simply limits a defence. [81] As noted above, in the context of a police sting operation where there is no underage person, s. 172.1(1) makes it anoffence for a person to communicate, by means of telecommunication, with a person who the accused believes is underage for thepurpose of facilitating the commission of a designated offence against that person.

By expressly including a presumption under s.172.1(3) as to the accused’s belief in this regard — albeit a presumption which I have found to be unconstitutional — Parliamentsignalled that the requirement of proving belief is essential in this context. [82] Subsection 172.1(4) does not make this requirement any less essential. Rather, in the absence of the presumptionunder s. 172.1(3), what it does is bar accused persons from raising, as a defence, that they believed the other person was of legal agewhere they failed to take reasonable steps to ascertain the other person’s age.

Put differently, it does not provide an independent pathwayto conviction; it merely limits a defence. This proposition is made clear by the opening words of subs. (4): “It is not a defence . . .”.

To beclear, while the word “defence” can be understood more broadly or more narrowly depending on the context, I am of the view that“defence” here is referring to an affirmative defence advanced by the accused as to the accused’s belief that would entitle him or her toan acquittal if believed or if it were to leave the trier of fact in a state of reasonable doubt. [83] Consequently, if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, thenthe trier of fact is precluded from considering the defence that the accused believed the other person to be of legal age.

But that does notrelieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage.Thus, to illustrate, if the trier of fact can only conclude from the evidence that the accused was negligent or reckless with regard to theother person’s age, the Crown would not have met its burden, and the accused would be entitled to an acquittal. This is becausenegligence and recklessness are states of mind that do not entail any concrete belief about the

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