Note[1]
(February, 2021)
(Read relevant parts of indictment or count.)
1. That (NOA) intentionally communicated with (NOC) by (specify means of telecommunication identified in the indictment);
Where the indictment refers to a child who is under a particular age, the following element should be added and the subsequent elements should be renumbered accordingly:
2. That (NOC) was under the age of (specify age according to the offence charged); [4]
2. That (NOA) believed that (NOC) was under the age of (specify age according to the offence charged); and
3. That (NOA)’s purpose was to facilitate the commission of the offence of (specify designated offence)[5] with respect to (NOC).
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of luring a child.
If you are satisfied beyond a reasonable doubt of all these essential elements [and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of luring a child.
You must approach the evidence with an open mind and without preconceived ideas.[6] You must make your decision based solely on the evidence and in accordance with my instructions on the law.
To determine whether the Crown has proved the essential elements, consider the following questions:
The Crown must prove beyond a reasonable doubt that (NOA) intentionally communicated with (NOC) by way of telecommunication. “Telecommunication” includes communications by way of (specify means of communication).[7]
The communication must have been intentional, as opposed to accidental. To decide whether (NOA) communicated with (NOC) intentionally, consider all the evidence, including what was said or done in the circumstances.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) intentionally communicated with (NOC) by (specify), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) intentionally communicated with (NOC) by (specify), you must go on to the next question.
Add the following instruction where the indictment refers to a child who is under a particular age:
[4] Second – Was (NOC) under the age of (specify age according to the offence charged)?
The Crown must prove beyond a reasonable doubt that (NOC) was below the age of (specify age according to the offence charged) at the time of the alleged offence.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOC) was below the age of (specify age according to the offence charged), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOC) was below the age of (specify age according to the offence charged), you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) believed[8] that (NOC) was below the age of (specify age according to the offence charged) at the time of the alleged offence.
(Review relevant evidence and relate to issue.)
(Where there is evidence of wilful blindness, add the following paragraph.)
If you find that (NOA) was wilfully blind about (NOC)’s age, this is the equivalent of proof that (NOA) believed that s/he was under the age of (specify age according to the offence charged). A person is wilfully blind if he or she becomes aware of the need for some inquiry about the other person’s age but declines to make the inquiry because he or she does not wish to know the truth. They would prefer to remain ignorant.[9] Wilful blindness is equivalent to belief.[10]
(Review relevant evidence and relate to issue.)
Where the accused claims that s/he believed that the other person was older than the age required for liability, but there is no air of reality to the accused’s claim that s/he took reasonable steps to determine the person’s age, provide the following instruction:
You have heard evidence that (NOA) believed that, at the time of his/her communication with (NOC), (NOC) was over the age of (specify age according to the offence charged). (NOA)’s belief can amount to a defence only if s/he took reasonable steps to determine (NOC)’s age. I am instructing you that there is no evidence that (NOA) took reasonable steps. Therefore, (NOA)’s assertion that s/he believed (NOC) was over the age of (specify age according to the offence charged) is without any value, and you must not consider it when assessing the strength of the Crown’s case.[11]
However, it is still up to the Crown to prove beyond a reasonable doubt that (NOA) believed that (NOC) was under the age of (specify age according to the offence charged).
Where the accused claims that s/he believed that the other person was older than the age required for liability and there is an air of reality to the accused’s claim that s/he took reasonable steps to determine the person’s age, provide the following instruction:[12]
You have heard evidence that (NOA) believed that, at the time of his/her communication with (NOC), (NOC) was over the age of (specify age according to the offence charged). I will refer to this as the defence of honest belief.
(NOA) is not guilty of child luring based on the defence of honest belief if both of the following two conditions were present:
1. (NOA) took steps that were reasonable in the circumstances to determine (NOC)’s age; and
2. (NOA) honestly believed (NOC) was over the age of (specify age according to the offence charged).
(NOA) does not have to prove that these conditions were present. Rather, it is up to the Crown to prove beyond a reasonable doubt that at least one of these two conditions was not present.
To decide whether the Crown has proved beyond a reasonable doubt that at least one of the two conditions was not present, you will have to consider two questions.
First - Has the Crown proved beyond a reasonable doubt that (NOA) failed to take steps that were reasonable in the circumstances to determine (NOC)’s age?
If it has, (NOA)’s defence of honest belief fails.
The steps that (NOA) took to determine (NOC)’s age must be both reasonable in the circumstances and reasonably capable of supporting an honest belief.
What amounts to reasonable steps depends on the circumstances. In some situations, a single, decisive step will be enough, while in other situations several steps may be required.
Reasonable steps are measures that a reasonable person, in the circumstances known to (NOA) at the time, would take to determine (NOC)’s age. Consider not only the steps (NOA) took, but also the information s/he received – or did not receive – as a result of those steps. Also consider any information that (NOA) received from or about (NOC). This information, depending on its content and all the circumstances, may lessen the need for further steps on (NOA)’s part.[13] (Depending on the evidence, it may be necessary to refer specifically to online forums that implement age restrictions.)
Reasonable steps are an ongoing requirement. It would not qualify as reasonable steps, for instance, to take some initial steps that led to information that could reasonably support an honest belief that the other person was a certain age, and then to ignore “red flags” that arise later and cast doubt on that belief. These “red flags” may require a person to take further reasonable steps.
(Review relevant evidence and relate to issue.)
You must consider whether (NOA) took reasonable steps to learn (NOC)’s age and whether what s/he (knew or learned) could reasonably support an honest belief that (NOC) was over the age of (specify age according to the offence charged). If you do find that (NOA) took reasonable steps, you may consider this evidence in determining whether (NOA) actually believed that (NOC) was over the age of (specify age according to the offence charged).
Second - Has the Crown proved beyond a reasonable doubt that (NOA) did not honestly believe that (NOC) was over the age of (specify age according to the offence charged)?
If it has, (NOA)’s defence of honest belief fails.
You have heard that (NOA) relies on the following information s/he received in support of his/her claim of an honest belief that (NOC) was over the age of (specify age according to the offence charged).
(Review relevant evidence and relate to issue.)
If you find beyond a reasonable doubt that (NOA) failed to take reasonable steps to learn (NOC)’s age, (NOA)’s assertion that s/he believed (NOC) was over the age of (specify age according to the offence charged) is without any value, and you must not consider it when assessing the strength of the Crown’s case.[14]
If each of you finds that the answer to either one of these two questions is “yes,” (NOA)’s defence of honest belief fails. It does not matter if you do not all agree on which of these questions is answered “yes.”
If you all agree that the answer to both questions is “no”, the conditions for (NOA)’s defence of honest belief are present, and you must acquit (NOA) of child luring.
However, even if you conclude that (NOA)’s defence of honest belief fails, that is not, in itself, enough to find (NOA) guilty. It is still up to the Crown to prove beyond a reasonable doubt that (NOA) believed (NOC) was under the age of (specify age according to the offence charged).
Further, even if the Crown has not proved beyond a reasonable doubt that (NOA) failed to take reasonable steps to find out the age of the person with whom s/he was communicating, you may still find, on the basis of other evidence, that (NOA) believed the other person to be under the age of (specify age according to the offence charged). [15]
Unless you are satisfied beyond a reasonable doubt that (NOA) believed [or was wilfully blind to the fact] that (NOC) was under the age of (specify age according to the offence charged), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that that (NOA) believed [or was wilfully blind to the fact] that (NOC) was under the age of (specify age according to the offence charged), you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) communicated with (NOC) for the purpose of facilitating (NOA)’s commission of (specify designated offence) with respect to (NOC).
A person facilitates an offence when s/he does something that could help to bring it about or that could make the commission of it easier or more probable.[16]
A person can facilitate (specify designated offence) through communications designed to lure or groom a child toward sexual activity.[17] For example, communications of a sexual nature may reduce a child’s inhibitions toward sexual activity or exploit a child’s curiosity and immaturity in relation to sexual activities. Communications that are not sexual in nature may also lure or groom by building a relationship of trust with the child, making the child more receptive to sexual conduct in the future. These communications may focus on topics that seem innocent, such as the child’s home life or personal interests.[18]
The Crown does not have to prove that (NOA) actually committed the offence of (specify designated offence). (Where the designated offence involves physical contact between (NOA) and another person, add: Nor does the Crown have to prove that (NOA) actually met or even intended to meet (NOC)).[19] All that matters is whether (NOA)’s purpose in communicating with (NOC) was to facilitate (NOA)’s commission of (specify designated offence) with respect to (NOC).
You must consider what (NOA)’s purpose was in communicating with (NOC). The Crown must prove beyond a reasonable doubt that (NOA) meant his/her actions to have the effect of facilitating the commission of the offence of (specify designated offence). [20]
Consider all the evidence. Look at the contents of the communications themselves, along with all the other evidence.[21]
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to facilitate the commission of (specify designated offence) with respect to (NOC), you must find (NOA) not guilty.
If you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to facilitate the commission of (specify designated offence) with respect to (NOC), you must find (NOA) guilty.
[1] These instructions apply to both of the scenarios contemplated by s. 172.1, that is, cases involving communication between the accused and an actual child and those involving communication between the accused and an undercover police officer posing as a child. Where these instructions refer to (NOC) (i.e. name of child), the name of the child or the name used by the officer should be inserted.
[2] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B.(G.), [1990] 2 SCR 3.
[3] See R. v. Morrison, 2019 SCC 15 at para 95; R. v. Levigne, 2010 SCC 25 at para 23; and R. v. Legare, 2009 SCC 56 at paras 36-37.
[6] In cases where it may be appropriate to caution the jury against having preconceived ideas about the offence of child luring, you may adapt the instructions on having an open mind and having no preconceived ideas from the sexual assault instruction (See Offence 271[3]), and/or explain to jurors the purpose of the child luring offence as described in R. v. Morrison, 2019 SCC 15 at paras 2-3.
[7] There is no definition of “telecommunication” in the Criminal Code, but see the Interpretation Act, RSC 1985, c I-21 , s. 35(1) which defines “telecommunications” as the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system”.
[8] When a person knows something, then for legal purposes they nececessarily believe it: R. v. Morrison, 2019 SCC 15 at para 99.
[9] R. v. Morrison, 2019 SCC 15 at paras 98 and 100; R. v. Sansregret, [1985] 1 SCR 570 at 584; R. v. Briscoe, 2010 SCC 13 at para 21.
[10] R. v. Morrison, 2019 SCC 15 at paras 97-99; R. v. Sansregret, [1985] 1 SCR 570 at 584-585; R. v. Briscoe, 2010 SCC 13 at paras 21 and 23. Recklessness and negligence are not states of mind that can ground a finding of “belief” for purposes of this element of the offence; rather, they “are states of mind that do not entail any concrete belief about the other person’s age”: Morrison at para 83. See also Morrison at paras 92, 100-101 and 131.
[11] R. v. Morrison, 2019 SCC 15 at paras 120, 130.
[12] The following instruction is based on the discussion of reasonable steps and honest belief in R. v. Morrison, 2019 SCC 15 at paras 118-128.
[13] R. v. Morrison, 2019 SCC 15 at para 109.
[14] R. v. Morrison, 2019 SCC 15 at para 130.
[15] R. v. Morrison, 2019 SCC 15 at para 127: “The mere failure to disprove reasonable steps does not, however, guarantee that the defence of honest belief in legal age will succeed. This is because the trier of fact may disbelieve the accused based on credibility findings or based on a consideration of the totality of the evidence. For example, where the accused has taken reasonable steps, but the evidence shows that the accused made statements to a third party that he or she was in a relationship with a 14-year-old, the Crown may well succeed in establishing that the accused had the requisite belief to sustain a conviction.” See also paras 124, 125,126, 127, and 129.1 and 132
[16] R. v. Legare, 2009 SCC 56 at para 28. See also R. v. Nuttall, 2018 BCCA 479 at paras 468-469.
[17] The language in this paragraph will need to be modified if the designated offence does not involve sexual activity (e.g., trafficking or abduction).
[18] R. v. Legare, 2009 SCC 56 at paras 28-29.
[19] R. v. Morrison, 2019 SCC 15 at para 40; R. v. Legare, 2009 SCC 56 at para 25; R. v. Alicandro, 2009 ONCA 133 at para 20.
[20] R. v. Legare, 2009 SCC 56 at para 32; see also R. v. Alicandro, 2009 ONCA 133 at para 31.
[21] R. v. Legare, 2009 SCC 56 at paras 31 and 42. See also para 29: “I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics.”