COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morrison, 2017 ONCA 582

DATE: 20170710

DOCKET: C61097 and C61110

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant (C61097)
    and

Respondent (C61110)

and

Douglas Morrison

Respondent (C61097)
    and

Appellant (C61110)

Mark Halfyard, Breana Vandebeek and Salvatore Caramanna
    for the respondent (C61097) and appellant (C61110)

Andreea Baiasu for the appellant (C61097) and respondent
    (C61097)

Heard: March 27, 2017

On appeal from the conviction entered on January 16, 2015
    and the sentence imposed on September 8, 2015 by Justice George S. Gage of the
    Ontario Court of Justice, with reasons reported at 2015 ONCJ 599 and 2015 ONCJ
    598, 341 C.R.R. (2d) 25.

Pardu J.A.:

[1]

This appeal concerns the constitutional validity of certain provisions
    of the
Criminal Code
relating to communications for sexual purposes on
    the internet.

[2]

Douglas Morrison posted a personal advertisement on the website Craigslist
    in the section casual encounters. A person calling herself Mia Andrews
    responded to the ad, writing that she was 14 years old. Sexual conversations
    between Morrison and Mia ensued for over two months. During these
    conversations, he suggested that she should touch herself on her breasts and
    vagina.

[3]

Unbeknownst to Morrison, Mia was in fact a police officer, Cst. Hilary
    Hutchinson. Constable Hutchinson was reviewing internet ads on Craigslist to
    identify those that made arrangements for sexual encounters with underage
    persons. She generated the profile for the fictitious Mia and participated in
    the sexual conversations with Morrison, representing to him that she was 14.

[4]

Morrison testified that he thought he was participating in a sexual role-playing
    exchange with an adult female. The rules of the website through which the
    communications took place required participants to be 18 years of age or older.

[5]

Morrison was charged and convicted at trial of child luring by means of
    a computer contrary to s. 172.1(1)(b) of the
Criminal Code
, which
    provides:

Luring a child

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

(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.

The designated offence referred to in s. 172.1(1)(b)
    that formed the basis of Morrisons conviction was invitation to sexual
    touching directed at a person under 16 years of age, contrary to s. 152 of the
Code
.

[6]

Subsections (2), (3) and (4) of s. 172.1 of the
Code
are at the
    heart of the present appeals:

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 a day 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
    eighteen years, sixteen years or fourteen years, as the case may be, is, in the
    absence of evidence to the contrary, proof that the accused believed that 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 paragraph was at least eighteen years of age, sixteen years or fourteen
    years of age, as the case may be, unless the accused took reasonable steps to
    ascertain the age of the person.

[7]

At trial, Morrison brought two applications challenging the
    constitutionality of subsections (2), (3) and (4). The first contended that the
    presumption of belief in subsection (3) and the reasonable steps requirement
    in subsection (4) infringe ss. 11(d) and 7 of the
Canadian Charter of
    Rights and Freedoms
respectively. The second contended that the mandatory
    minimum punishment of one year of imprisonment in subsection (2)(a) infringes
    s. 12 of the
Charter
. (Morrison faced this mandatory minimum because
    the Crown had proceeded by indictment.)

[8]

The trial judge held that the reasonable steps requirement is constitutionally
    valid but that the presumption of belief infringes the right to be presumed
    innocent under s. 11(d) of the
Charter
. He held that the infringement is
    not justified under s. 1 of the
Charter
and refused to apply s. 172.1(3)
    of the
Code
. He concluded, however, that the Crown had proven the
    elements of the child luring offence even without the benefit of the
    presumption of belief. He was satisfied beyond a reasonable doubt that Morrison
    did not take reasonable steps to ascertain the age of the person he was communicating
    with over the internet as required by s. 172.1(4).

[9]

Morrison appeals to this court. He submits that the presumption of belief
    and the reasonable steps requirement in s. 172.1 unjustifiably infringe ss. 11(d)
    and 7 of the
Charter
and should be declared of no force or effect
    pursuant to s. 52(1) of the
Constitution Act, 1982
. If follows, he
    submits, that the trial judges verdict is unreasonable and this court should
    enter an acquittal.

[10]

The
    trial judge went on to hold that the mandatory minimum sentence in subsection
    s. 172.1(2) is grossly disproportionate, contrary to s. 12 of the
Charter
.
    Refusing to apply it, he sentenced Morrison to 75 days intermittent
    incarceration (after credit for pre-sentence custody was deducted). He also
    made a one-year probation order, a 20-year registration order under the
Sex
    Offender Information Registration Act
, S.C. 2004, c. 10 (
SOIRA
),
    and an order excluding Morrison for three years from attending public parks and
    other places where children would normally be present.

[11]

The
Crown
appeals from the trial judges
    conclusion on s. 12 of the
Charter
and the sentence imposed. It
    submits that the mandatory minimum one-year sentence in s. 172.1(2) of the
Code
is constitutional and that the trial judge should have imposed a heavier
    sentence.

[12]

For
    the reasons that follow, I would dismiss both Morrisons and the Crowns
    appeals. I agree with the trial judges conclusions regarding the
    constitutionality of each of the
Criminal Code
provisions under
    scrutiny in this case.

A.

background

(1)

Investigation of Morrisons Advertisement

[13]

Morrison posted his advertisement on Craigslist on January 10, 2013. It
    was entitled: Daddy looking for his little girl  m4w  45 (Brampton). It
    read:

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 the place all to ourselves too, in the Bramalea Rd and Knightsbridge area.

[14]

Constable Hutchinson saw the advertisement on February 5, 2014. She
    testified that it suggested that the author sought to meet with a young girl.
    The post contained no limitations, such as 18+ or RP  referring to role-play
     that would dispel this suspicion.

[15]

Posing
    as Mia, Cst. Hutchinson began email conversations on February 5 with
    Morrison. Mia stated im 14 and asked wut do you mean in reference to
    Morrisons advertisement.

[16]

Constable
    Hutchinson deliberately attempted to use teenage-appropriate language,
    including common abbreviations and misspellings for certain phrases. Mia
    spoke about going to class at school, playing sports, spending time with her
    friends and listening to music. She mentioned her parents and her grandparents.
    Her messages were timed to occur before and after school. She indicated that
    she was curious bout sex but had not done it yet. Morrison asked Mia how
    old she was, to which she again responded that she was 14.

[17]

Sexually explicit conversations occurred between Morrison and Mia from
    February 6 to April 21, 2014. During this time, Mia reminded Morrison that
    she was 14 years old. Morrison extended the invitation for Mia to touch
    herself sexually, which formed the basis for the designated offence under s.
    152 of the
Code
. He suggested that Mia should skip school without
    her mother finding out and meet him in Brampton, where he would pick her up for
    them to engage in sexual touching. This meeting did not occur.

[18]

Morrison asked Mia to send him a picture twice but she never provided
    one. He also asked her for her phone number, which Cst. Hutchison did provide.
    There were missed calls back and forth. On April 21, 2013, Morrison admonished Mia
    for phoning him, saying not to phone unless I say so. He made no further
    attempts to communicate with her after a missed call on April 26, 2014. On May
    10, 2016, Cst. Hutchinson sent a text message to Morrisons phone saying: R U
    Mad at me? Morrison responded on May 21 asking: Who are you?

(2)

Morrisons Arrest and Statements to the Police

[19]

Constable Hutchison obtained an arrest warrant, which was executed on
    May 23, 2013. The trial judge accepted that Cst. Hutchinson told Morrison he
    was being arrested because a complaint against him had been received from a
    guardian of a 14-year-old child. Morrison told the police: I was only talking
    to one girl.

[20]

Morrison was taken to the police station where he spoke to duty counsel.
    Two hours later, he provided a video-recorded statement during which he
    indicated that he was unsure of Mias age and that on the internet you dont
    really know whether you are speaking to a child or an adult. He said that
    Craigslist has a disclaimer or warning in the personal ads section that you have
    to be 18 to post an advertisement. He said he had no intention of ever meeting
    with the person with whom he had conversed.

(3)

Morrisons Testimony

[21]

At trial, Morrison testified that he did not expect children to be on Craigslist
    in the classified advertisement section called personal encounters, as this
    section required users to be over the age of 18. He did acknowledge in
    cross-examination that children sometimes lie and represent that they are over
    18 despite the 18+ disclaimer.

[22]

He said that he used various chat sites for regular conversations with
    other users about adult sex. He said he got bored with these chat sites and
    decided to post the advertisement.

[23]

He testified that he thought that the conversations he had with Mia
    were a form of adult sexual role-playing. He anticipated a response from an
    adult woman who wanted to engage in father-figure role-play. He had no interest
    in sex with underage children and said that his sexually explicit talk was all
    part of the role-play. When he made the picture requests, he wanted to see what
    the person he was talking to looked like. He said it never crossed his mind
    that he was talking to someone underage, despite Mias representation that
    she was 14. He said he had lied about his age in his advertisement
    representing that he was 45 when he was really 67. He maintained that he never
    wanted to meet Mia and was not sexually aroused when he was speaking to her.

[24]

Finally, he said that when he was arrested he used the term girl in
    his statement, I was only talking to one girl, to refer to females of all
    ages. He said he did not explain to the police officers when he was arrested
    that he thought he was speaking with an adult who was interested in
    role-playing because he was in shock at that time.

B.

the conviction appeal

(1)

Decision of the Trial Judge

[25]

The
    trial judge outlined three constituent elements of the s. 172.1 offence:

(1)

Making
    use of a computer system to communicate;

(2)

Communicating
    with a person who is, or who the accused believes is, under the age of 16; and

(3)

Communicating
    for the purpose of facilitating one or more of the offences designated in s.
    172.1(1)  in this case, invitation to sexual touching contrary to s. 152 of
    the
Code
.

[26]

The
    trial judge held that subsection 172.1(3)  the presumption of belief  infringed
    Morrisons s. 11(d)
Charter
right. He noted that the right to be
    presumed innocent under s. 11(d) protects an accused against conviction if a
    reasonable doubt about an element of the offence exists: see
R. v. Downey
,
    [1992] 2 S.C.R. 10, at p. 29. His reasoning is encapsulated at paras. 25-26 of
    his reasons on the
Charter
application, which are reported at 2014
    ONCJ 673:

An essential element of the offence cannot be
    established by statutory presumption in a constitutionally acceptable way
    unless there exists an inexorable connection between the fact that engages the
    presumption (here, a representation as to age) and the existence of the
    essential element (the accuseds belief as to the interlocutors age).

The idea that a representation as to age will
    necessarily be believed by the recipient strikes me as tenuous. In the context
    of the Internet, that notion is rendered even frailer. In the online world, the
    anonymity furnished by the Internet virtually ensures that much is not as it
    seems. Rightly or wrongly, pseudonyms and falsehoods are a pervasive part of
    online communication. Given this, it does not follow, in my view, that an
    online representation as to age would necessarily be believed by the person to
    whom it is made. It is therefore far from certain that even a rational or
    logical connection is established between the representation and the
    presumption of belief as to age, much less an inexorable connection. [Citation
    omitted.]

Thus, the trial judge refused to apply subsection (3)
    in the prosecution against Morrison.

[27]

However,
    he held that the reasonable steps requirement in subsection 172.1 (4) is constitutionally
    valid. He observed that the language of subsection (4) resembles that of s.
    273.2(b) of the
Code
, which provides that an honest belief in consent
    is not a defence to a charge of sexual assault if the accused did not take
    reasonable steps, in the circumstances known to the accused at the time, to
    ascertain that the complainant was consenting. He noted that this court held that
    s. 273.2(b) does not violate the
Charter
in
R. v. Darrach
(1998), 38 O.R. (3d) 1 (C.A.), affd on other grounds, 2000 SCC 46, [2000] 2
    S.C.R. 443.

[28]

The
    trial judge held that, on the whole of the evidence and without applying the
    unconstitutional presumption of belief, the Crown

had not proven
    beyond a reasonable doubt that Morrison believed that the person with whom he
    was communicating over the internet was underage. He stated in his reasons for
    conviction that Morrison was at least indifferent to the age of the person he
    was communicating with but that [i]ndifference is not the equivalent of
    belief: para. 25. He stated that Morrisons state of mind was closer to
    negligence rather than the sort of advertence necessary to sustain a finding of
    an actual belief in his part that Mia was underage: para. 27.

[29]

The
    trial judge made the following findings of fact, at para. 23:

·

Morrison
    was aware when he posted his ad on Craigslist that people involved in sexual
    chat on the internet tend to be dishonest. He admitted that he lied about his
    age in the ad. Morrison would therefore have been aware that the fact that the
    personal ad section of Craigslist asks for a simple confirmation of adult
    status, without requiring proof of age or any other form of screening for adult
    age, is a meaningless restriction.

·

The
    absence of any kind of age- or purpose-related limiters in the text of the
    posted ad  such as legal age, 18+ or Role-Play  suggested that
    Morrisons interest was broader than adult role-play.

·

Morrison
    simply ignored the repeated statements by Mia that she was 14. There was no
    follow up. Morrisons stated assumption that he was dealing with an adult
    determined to remain in character had no supporting foundation. He had no
    apparent basis to distinguish between an adult staying in character and a child
    stating her real age. Morrison continued with the conversation in the face of
    these repeated representations of age. There was no discernable or reasonable
    basis upon which he could discredit or disbelieve the representation.

·

The
    language, diction and grammar used by Mia was consistent with that of a 14 year
    old. The content of the communications between Mia and Morrison did not
    disclose any features from which Morrison could reasonably derive a clue or
    hint that Mia was an adult pretending to be an underage female. Mias answers
    to the sexualized suggestions of Morrison were not sexually responsive. They were
    primarily inquisitive and yielded no indication of participation in fantasy
    role-playing. They did not support the contention by Morrison that he was
    engaged with another adult in the exploration of a role-play fantasy.

·

The
    trial judge was not persuaded that the statement made by Morrison upon his
    arrest using the word girl was simply the employment of the default term that
    Morrison commonly uses to describe all females.

·

The
    videotaped statement taken in Brampton contained no reference to role-playing
    or an adult respondent. It was taken after Morrison had two hours to
    contemplate his position. The contention that he was too shocked to properly
    respond to the allegation is not supported by the demeanour he demonstrated in
    the video. The officer did not pressure him. He had ample opportunity in the
    course of the interview to introduce the notion that he believed he was talking
    to an adult.

[30]

The
    trial judge went on to determine whether the Crown had proven beyond a
    reasonable doubt that Morrison took reasonable steps in the circumstances to
    ascertain Mias age as mandated by s. 172.1(4) of the
Code
. He accepted
    that the surrounding circumstances included the existence of Daddy/little
    girl role-playing scenarios in the realm of internet exchanges.

[31]

The
    trial judge rejected Morrisons assertion that he took reasonable steps by
    posting an ad on an age-restricted Craigslist section that he expected would
    have only adult interlocutors. This step was not reasonable in light of the
    fact that a person of any age could easily enter that section despite the
    restriction. Furthermore, nothing in Morrisons advertisement restricted the
    age of responders to adults. With respect to Morrisons assertion that he had
    asked Mia her age, the trial judge had this to say, at para. 34:

It is, in my view, self-evident that asking a
    question about age and then either ignoring the answer or simply assuming,
    without further inquiry, that the answer is untrue, is neither a completed step
    to ascertain age nor a reasonable strategy to ascertain age. It is, at best, a
    half step. If the question is posed as a step to ascertain age then some
    meaning must be attached to the answer. A reasonable person confronted with
    Mia's statements regarding her age in the dialogue that took place would either
    accept the answer as true, or at least possibly true, and discontinue the
    conversation (particularly after the representation was repeated) or, make
    further inquiries to ensure: 1) that the answer was false; and 2) that the
    person responding was not underage. Proceeding on the assumption, without
    further inquiry, that the answer is false and upon the further assumption that
    the person responding was not underage, is not the conduct of a reasonable
    person in the surrounding circumstances.

According to the trial judge, the same general
    observations applied to Morrisons request for a photo from Mia, which she
    never provided.

[32]

The trial judge was
    satisfied beyond a reasonable doubt that in the circumstances Morrison did not
    take reasonable steps, or exercise the degree of care  that a reasonable
    person would have exercised to ascertain the age of the person with whom he
    was communicating online: para. 17.

(2)

Positions of the Parties

[33]

On
    appeal, Morrison renews his challenge to the constitutionality of the
    presumption of belief in s. 172.1(3) of the
Code
, focusing on s. 11(d)
    of the
Charter
. He submits that the trial judge was correct to
    conclude that it does not follow inexorably from the fact that an interlocutor
    represents to an accused that he or she is underage through internet
    communications that the accused believes that the interlocutor is underage, in
    light of the ubiquity of misrepresentations through the online medium. Hence,
    he says, the presumption of belief requires a trier of fact to conclude that an
    essential element of the child-luring offence is proven even if a reasonable
    doubt exists as to the accuseds belief that the interlocutor is underage.

[34]

Morrison
    maintains his challenge to the reasonable steps requirement in subsection (4)
    of s. 172.1, focusing here on s. 7 of the
Charter
. He submits that the
    child-luring offence is one that carries sufficient social stigma that it must
    be coupled with a requirement for the Crown to prove the accuseds subjective
mens
    rea
for it to comply with s. 7. The operation of subsection (4) allows the
    Crown obtain a conviction on the objective basis of negligence, even when the
    accused subjectively believes that he or she communicated online with an adult.

[35]

In
    response, the Crown submits that that the trial judge erred in holding that the
    presumption of belief in subsection (3) is contrary to s. 11(d) of the
Charter
.
    Instead of considering the logical link between the basic fact, the
    representation, and the presumed fact, belief as to age, he should have
    considered the protective purposes of the offence. Furthermore, the Crown
    submits that the presumption of belief is only triggered absent evidence to
    the contrary so that, if no such evidence is adduced, the only possible
    inference to be drawn from an online representation as to age is that the
    accused believed the representation.

[36]

The
    Crown also submits that the reasonable steps requirement in subsection (4) is
    not contrary to s. 7 of the
Charter
. Citing this courts decision in
R.
    v. Alicandro
, 2009 ONCA 133, 94 O.R. (3d) 173, leave to appeal refused,
    [2009] S.C.C.A. No. 395, it says that, properly interpreted, the
mens rea
for the child-luring offence in s. 172.1 is a subjective standard of fault. It
    requires the Crown to prove beyond a reasonable doubt that the accused engaged
    in a prohibited communication for the purpose of facilitating the commission of
    a sexual offence, with the specific intent of facilitating the commission of
    that offence. The Crown also supports the trial judges conclusion that
    subsection (4) is valid because it is analogous to s. 273.2(b) of the
Code
,
    which this court upheld under s. 7 of the
Charter
in
Darrach
.

[37]

The
    Crown submits that any limit of s. 11(d) of the
Charter
is justified
    under s. 1, but it makes no such submissions with respect to s. 7.

(3)

Analysis

(1)

The Elements of the Child-Luring Offence and the Operation of s. 172.1
    of the
Code

[38]

For ease of reference, I reproduce the parts of s. 172.1 of the
Code
that are relevant to these appeals:

Luring a child

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

(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.

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 a day 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
    eighteen years, sixteen years or fourteen years, as the case may be, is, in the
    absence of evidence to the contrary, proof that the accused believed that 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 paragraph was at least eighteen years of age, sixteen years or fourteen
    years of age, as the case may be, unless the accused took reasonable steps to
    ascertain the age of the person.

The nature of the child luring offence, as well the
    operation of the presumption of belief and the reasonable steps requirement,
    were discussed by Doherty J.A. in
Alicandro
and by Fish J. 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.

[39]

Section 172.1 creates an inchoate offence that prohibits conduct
    preparatory to or facilitative of the designated offences described in s.
    172.1(1). It does not criminalize communicating by means of a computer with a
    person who is, or who the communicator believes to be, below a certain age. Nor
    does it criminalize sexual communication over the internet with a person who
    the accused does not believe is underage. These acts are not in themselves
    illegal. They are prohibited only if they involve an intention to facilitate a
    designated offence involving the sexual exploitation of a young person.

[40]

In
Alicandro
at para. 36, Doherty J.A. described the purpose of
    s. 172.1:

The language of s. 172.1 leaves no doubt that
    it was enacted to protect children against the very specific danger posed by
    certain kinds of communications via computer systems. The Internet is a medium
    in which adults can engage in anonymous, low visibility and repeated contact
    with potentially vulnerable children. The Internet can be a fertile breeding
    ground for the grooming and preparation associated with the sexual exploitation
    of children by adults. One author has described the danger in these terms:

For those inclined to use computers as a tool for the
    achievement of criminal ends, the Internet provides a vast, rapid and
    inexpensive way to commit, attempt to commit, counsel or facilitate the
    commission of unlawful acts. The Internet's one-too-many broadcast capability
    allows offenders to cast their nets widely. It also allows these nets to be
    cast anonymously or through misrepresentation as to the communicators true
    identity. Too often, these nets ensnare, as theyre designed to, the most
    vulnerable members of our community - children and youth.

...

Cyberspace also provides abuse-intent adults with
    unprecedented opportunities for interacting with children that would almost
    certainly be blocked in the physical world. The rapid development and
    convergence of new technologies will only serve to compound the problem.
    Children are the front-runners in the use of new technologies and in the
    exploration of social life within virtual settings.

[41]

As the trial judge correctly recognized, the elements of the child
    luring offence are:

(1)

Making
    use of a computer system to communicate;

(2)

Communicating
    with a person who is, or who the accused believes is, underage; and

(3)

Communicating
    for the purpose of facilitating an offence designated in s. 172.1(1).

[42]

In
Alicandro
,
    Doherty J.A. regarded the first and second of these elements as forming the
actus
    reus
for the child luring offence and the third as forming the
mens
    rea
. On his interpretation, the mental state of the accused may be a constituent
    of the
actus reus
because, [i]f the person with whom the
    communication is made is over fourteen, but the accused believes he or she is
    under fourteen, the accuseds belief is the circumstance or condition that the
    Crown must prove to establish the prohibited act: para. 30. The
mens rea
or

fault component would then also require proof of the state of the mind of
    the accused, who must engage in the prohibited communication with the specific
    intent of facilitating the commission of one of the designated offences: para.
    31.

[43]

Subsequently,
    in
Legare
at paras. 39-41, Fish J. held that it is unnecessary to categorize
    the potential mental element implicated in the second component of the offence
     the accuseds belief that his or her online interlocutor is underage  into
    either the
actus reus
or
mens rea
element of the offence.

[44]

In
Levigne
,
    Fish J. addressed the interaction between the elements of the offence and ss.
    172.1 (3) and (4), although he noted that the constitutionality of the
    presumption of belief was not in issue in the case before him. He wrote, at
    para. 32:

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

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

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

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

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

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

[45]

Fish J. added that the requirement for the accused to adduce evidence to
    the contrary, which must amount to reasonable steps to ascertain the age of the
    accuseds online interlocutor pursuant to s. 172.1(4), does not impose an ultimate
    or persuasive burden on the accused. It only requires the accused to adduce
    evidence that tends to show, but need not prove, that the accused did not
    believe that the interlocutor was underage; the evidence must have probative
    value but need not be so cogent as to persuade the court. see para. 17. If the
    accused has raised an evidentiary basis for having taken the requisite
    reasonable steps, the persuasive burden remains on the Crown to demonstrate
    beyond a reasonable doubt that the accused did not take those steps. Fish J. also
    stated that the rebuttable presumption of belief facilitates the prosecution
    of child luring offences while leaving intact the burden on the Crown to prove guilt
    beyond a reasonable doubt; it assists the Crown in discharging its evidential
    burden on the element of culpable belief, but preserves for accused persons the
    benefit of any reasonable doubt where the record discloses evidence to the
    contrary: para. 30.

[46]

Fish J. stated at para. 31 that the reasonable steps requirement in s.
    172.1(4) was enacted by Parliament to foreclose exculpatory claims of
    ignorance or mistake [in relation to the age of the online interlocutor] that
    are entirely devoid of an objective evidentiary basis. He added that it is
    unnecessary to characterize claims by accused persons that they were mistaken
    about the age of the interlocutor as a mistake of fact defence or attempts to
    raise a reasonable doubt as to an element of the child luring offence: para.
    36.

[47]

I turn now to Morrisons constitutional challenges, considering first whether
    the presumption of belief in subsection (3) infringes s. 11(d) of the
Charter
and then turning to whether subsection (4) infringes s. 7 of the
Charter
.

(2)

Does the Presumption of Belief Infringe s. 11(d) of the
Charter
?

(1)

Legal Principles

[48]

Section 11(d) of the
Charter
protects the presumption of
    innocence. It provides:

11.
Any person
    charged with an offence has the right

(d) to be presumed innocent until proven guilty according
    to law in a fair and public hearing by an independent and impartial tribunal.

[49]

A statutory presumption infringes s. 11(d) if its effect is that an
    accused can be convicted even though the trier of fact has a reasonable doubt
    as to the accuseds guilt:
R. v. St-Onge Lamoureaux
, 2012 SCC 57,
    [2012] 3 S.C.R. 187, at para. 24; and
R. v. Vaillancourt
, [1987] 2
    S.C.R. 636, at pp. 654-656.

[50]

The presumption of belief in s. 172.1(3) requires a trier of fact to
    infer that an accused believed an online interlocutor is underage if the Crown
    proves that it was represented to the accused by the interlocutor that the
    interlocutor was underage, absent evidence to the contrary. Where the
    interlocutor was in fact not underage, as in sting operations by the police
    such as the one leading to Morrisons prosecution, the accuseds belief that
    the interlocutor was underage is an element of the child luring offence in s.
    172.1. Thus, in prosecutions arising out of  sting operations, the presumption
    of belief requires a trier of fact to conclude that the Crown has proven an
    element of the offence once the Crown has proven the representation that the
    interlocutor is underage. This is known as a mandatory basic fact presumption,
    as it substitutes proof of the basic fact of the representation for proof of an
    element of the offence. See
R. v. Oakes
, [1986], 1 S.C.R. 103, at p.
    115;
Downey
, at p. 21; and
Cochrane v. Ontario (Attorney General)
,
    2008 ONCA 718, 92 O.R. (3d) 321, at paras. 59-60.

[51]

The s. 11(d)
Charter
concern with a mandatory basic fact
    presumption is that, in allowing the Crown to prove only the basic fact instead
    of an element of an offence beyond a reasonable doubt, it may permit the
    accused to be convicted even though a reasonable doubt about guilt exists. But
    this concern will be avoided if proving the basic fact would be equivalent to
    proving the element of the offence beyond a reasonable doubt. That will happen if
    proof of the element follows inexorably from proof of the basic fact: see
Vaillancourt
,
    at p. 655;
R. v. Whyte
, [1988] 2 S.C.R. 3, at pp. 18-19; and
Cochrane
,
    at paras. 62-64. As Cory J. wrote in
Downey
, at p. 29:

Legislation which substitutes proof of one
    element for proof of an essential element will not infringe the presumption of
    innocence if as a result of the proof of the substituted element, it would be
    unreasonable for the trier of fact not to be satisfied beyond a reasonable
    doubt of the existence of the other element.
To put it
    another way, the statutory presumption will be valid if the proof of the
    substituted fact leads inexorably to the proof of the other
. However,
    the statutory presumption will infringe s. 11(d) if it requires the trier of
    fact to convict in spite of a reasonable doubt. [Emphasis added.]

Some examples will serve to illustrate the applicable
    legal principles.

[52]

The first is the Supreme Courts decision
Whyte
. The accused
    was charged with having care and control of a motor vehicle while impaired. The
Criminal Code
contained a mandatory basic fact presumption that, upon
    proof of an accuseds occupancy of the drivers seat in a motor vehicle, the
    trier of fact must infer that the accused had care or control of the vehicle, an
    element of the impaired driving offence. The court concluded that the
    presumption infringed s. 11(d). Proof of the basic fact did not lead inexorably
    to proof of care and control. Dickson C.J. stated at p. 19 that [o]ther
    reasonable explanations for sitting in the drivers seat can readily be
    imagined.

[53]

Similarly,
Downey
concerned a prosecution for living on the
    avails of prostitution. There was a mandatory presumption in the
Code
that
    the basic fact that a person is habitually in the company of a prostitute is
    proof that the person lives on the avails of prostitution. Cory J. held that
    the presumption infringed s. 11(d) because it did not follow inexorably from
    the basic fact that the accused lived on the avails. See also
Vaillancourt
,
    at pp. 656-659; and
R. v. Nagy
(1988), 45 C.C.C. (3d) 350 (Ont. C.A.),
    at pp. 360-361.

[54]

A contrasting case is
R. v. Audet
, [1996] 2 S.C.R. 171. The
    accused was charged under s. 153(1) of the
Code
with touching a young
    person for a sexual purpose while in a position of trust or authority towards
    her. He was the complainants teacher. A majority of the Supreme Court
    interpreted the terms authority and trust in s. 153(1) so that teachers are
    presumed to be in a position of trust in relation to their students, absent
    evidence to the contrary. It recognized that this interpretation turned s.
    153(1) into a mandatory basic fact presumption; from the basic fact that an
    accused is a teacher the essential element of being in a position of trust in
    relation to a complainant who is a student must be presumed. However, it held
    that this interpretation is not contrary to s. 11(d) of the
Charter
because the presumed fact of a trust relationship follows inexorably from the
    basic fact of the accused being the complainants teacher: see para. 44.

[55]

I will now analyze the presumption of belief in s. 172.1(3) of the
Code
in light of the legal principles discussed above.

(2)

Application to s. 172.1(3) of the
Code

[56]

The Crown submits that, when applying the inexorable connection test
    under s. 11(d) of the
Charter
,
it is crucial to bear in mind that the presumption of belief in s. 172.1(3) is
    a rebuttable one; it is only triggered if there is no evidence that the accused
    did not believe that his or her online interlocutor was underage. The Crown
    says that, when there is no such evidence, it follows inexorably from proof
    that it was represented to the accused that the interlocutor was underage that
    the accused believed in the representation.

[57]

I agree, however, with the trial judges conclusion that the presumption
    of belief in s. 172.1(3) infringes s. 11(d). In circumstances where an accused
    communicates via computer with a person who represents that he or she is under
    the age of 14, the presumption of belief permits conviction despite the
    presence of a reasonable doubt as to whether the accused believed that the
    online interlocutor was underage.

[58]

I accept the Crowns submission about the rebuttable nature of the
    presumption of belief. It is triggered only if there is no evidence that the
    accused did not believe that the interlocutor was underage. The reasons of Fish
    J. in
Levigne
make this clear. Evidence to the contrary in s.
    172.1(3) must be evidence that the accused took reasonable steps to ascertain
    the age of the interlocutor. The accused has an evidentiary burden, but not a
    persuasive burden, to adduce some evidence tending to support that these steps
    were taken. Procedurally, the prosecution then shifts to s. 172.1(4), under
    which the Crown retains the persuasive burden of proving beyond a reasonable
    doubt that the accused failed to take the required reasonable steps. But if the
    accused fails to discharge his or her evidentiary burden, the Crown may avail
    itself of the presumption of belief in subsection (3).

[59]

However, in my view, even if there is no evidence of the accuseds
    reasonable steps, or that the accused does not believe that the interlocutor is
    underage, it still does not follow inexorably from proof that the interlocutor
    represented that he or she is underage that the accused believed the
    representation. This is the fact that must be inferred from the representation
    under s. 172.1(3) and the relevant element of the child luring offence. Even if
    the presumption of belief is triggered and there is no evidence to the
    contrary, the trier of fact could still be left with a reasonable doubt that
    the accused believes that the interlocutor is underage.

[60]

The mere fact of a representation is no indication of its reliability or
    credibility and does not lead inexorably to the conclusion that the recipient
    believed it. Some representations are inherently doubtful, even in the absence
    of evidence to the contrary. Representations on the internet are notoriously
    unreliable. As put by Dawson J. in
R. v. Pengelley
, 2010 ONSC 5488,
    261 C.C.C. (3d) 93, at para. 17, nothing may be as it appears on the internet
    where deception is rampant. There is simply no expectation that
    representations made during internet conversations about sexual matters will be
    accurate or that a participant will be honest about his or her personal
    attributes, including age. Indeed, the expectation is quite the opposite, as true
    personal identities are often concealed in the course of online communication
    about sexual matters. In the present case, there is evidence that Morrison
    himself made a misrepresentation about his age on his Craigslist advertisement.

[61]

Given the reality of misrepresentation over the internet, a trier of
    fact could well be left with a reasonable doubt that the recipient of a representation
    as to age believed the representation, even in the absence of evidence to the
    contrary. Thus, an online representation as to age may occur in such
    circumstances as to fail to establish an accuseds belief that the interlocutor
    was underage beyond a reasonable doubt, even in the absence of evidence to the
    contrary. Although the representation may lead to a
rational
inference that the accused believed the interlocutor was underage, that is not
    the applicable legal test:
Oakes
, at pp. 133-134. Considered in light
    of the circumstances of online communication and their content, that inference
    is not
inexorable
.

[62]

I conclude that s. 172.1(3) of the
Code
infringes s. 11(d) of
    the
Charter
.

(3)

Is the Infringement of s. 11(d) Justified under s. 1 of the
Charter
?

[63]

Section
    1 of the
Charter
provides:

1. The
Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such
    reasonable limits prescribed by law as can be demonstrably justified in a free
    and democratic society.

[64]

The Crown did not attempt to justify the s. 11(d) infringement pursuant
    to s. 1 of the
Charter
before the trial judge, but it relied heavily
    on s. 1 in its submissions on appeal.

[65]

The test for justification under s. 1, established in
Oakes
and
    more recently restated in
Alberta v. Hutterian Brethren of Wilson Colony
,
    2009 SCC 37, [2009] 2 S.C.R. 567, is well known. To justify a limit on a
Charter
right, the Crown has the burden of demonstrating on a balance of probabilities
    that:

1.

The law has a pressing and substantial objective; and

2.

The limit is proportionate, in that:

(a)

It is rationally
    connected to the laws objective;

(b)

The law limits
    the
Charter
right in question as minimally as possible while still
    actually achieving the laws objective; and

(c)

The laws salutary
    effects are proportionate in the strict sense to its deleterious effects on the
    affected
Charter
right.

[66]

We have no evidence before us about prosecutions under s. 172.1 of the
Code
or the outcomes of sting operations such as occurred in the present case. We
    have only the anecdotal evidence illustrated by some decided cases. For
    instance, we do not have evidence like the facts about the social evils of
    impaired driving adduced in
Whyte
or
the plight of prostitutes and the difficulties associated with
    prosecuting pimps adduced in
Downey
.

[67]

The general rule is that evidence is necessary for the Crown to
    discharge its burden of establishing that a limit on a
Charter
right
    is demonstrably justified under s. 1. This was explained by Dickson C.J. in
Oakes
,
    at p. 138:

Having regard to the fact that s. 1 is being
    invoked for the purpose of justifying a violation of the constitutional rights
    and freedoms the
Charter
was designed to protect, a very high degree
    of probability will be, in the words of Lord Denning commensurate with the
    occasion. Where evidence is required in order to prove the constituent
    elements of a s. 1 inquiry,
and this will generally be
    the case
, it should be cogent and persuasive and make clear to the Court
    the consequences of imposing or not imposing the limit. A court will also need
    to know what alternative measures for implementing the objective were available
    to the legislators when they made their decision. [Emphasis added and citations
    omitted.]

This court has stated that, [a]s a general rule, s. 1
    should not be raised for the first time on appeal. The Supreme Court has
    consistently cautioned against deciding constitutional cases without an
    adequate evidentiary record:
Christie v. British Columbia (Attorney
    General)
, 2007 SCC 21, [2007] 1 S.C.R. 873, at para. 28:
R. v. R.S.
,
    2015 ONCA 291, 20 C.R. (7th) 336, at para. 37.

[68]

I recognize evidence is not always necessary to justify a
Charter
infringement under s. 1:
Oakes
, at p. 138; and
Sauvé v. Canada
    (Chief Electoral Officer)
, 2002 SCC 68, [2002] 3 S.C.R. 68, at paras. 18
    and 90. However, I conclude here that the Crown has not satisfied its burden of
    showing that the breach of s. 11(d) of the
Charter
is demonstrably justified.

[69]

The
Charter
infringing measure in s. 172.1(3) is the
    presumption that proof that an online interlocutor represents to the accused
    that they are underage is proof that the accused believed the interlocutor was
    underage. The presumption facilitates the prosecution of child luring offences
    committed by computer:
Levigne
, at para. 30. The prosecution of such
    offences is integral to protecting children from the specific dangers of sexual
    predation over the internet:
Alicandro
, at para. 36. This protective
    function is a pressing and substantial state objective.

[70]

The presumption of belief in s. 172.1(3) facilitates child luring
    prosecutions by relieving the Crown of having to prove an element of the child
    luring offence beyond a reasonable doubt and enabling it to prove only the
    basic fact of the representation as to age made by the interlocutor to the
    accused. The limit on the accuseds s. 11(d)
Charter
right that it
    imposes is therefore rationally connected to the state objective of protecting
    children from sexual predation over the internet.

[71]

However, I am not persuaded that the presumption of belief is a
    minimally intrusive means for achieving the states objective or that it is
    proportionate.

[72]

In a sting operation, the investigative authorities will generate a record
    of the exchange to adduce at trial in the prosecution against the accused. At
    trial, the Crown can ask the trier of fact to infer that the accused believed
    the interlocutor was underage based on all the facts in the record, including:
    the content of the communication; whether representations as to age were made;
    the tone of the communications; the nature of the forum used; the frequency of
    communications; whether photographs were exchanged; and all of the other
    infinitely variable circumstances surrounding the exchange. This approach is
    routinely part of the work of trial courts. It need not involve limiting the
    accuseds right to be presumed innocent by means of the presumption of belief
    in s. 172.1(3) of the
Code
. The absence of the presumption would not undermine
    the prosecution of the child luring offence.

[73]

Furthermore, it is important to note that, if the record discloses any evidence
    suggesting that the accused did not believe that the interlocutor was underage,
    or if there is some evidence that he or she took reasonable steps to ascertain
    the interlocutors age, the Crown cannot rely on the presumption of belief, and
    it must prove that the accused failed to take those steps beyond a reasonable
    doubt. I am not persuaded that the presumption actually facilitates the conviction
    of child luring offences by increasing the number of convictions that would
    ordinarily occur without resort to the presumption or that there is a problem
    with unjustified acquittals.

[74]

As a result, I am also not persuaded that the salutary effects of
    limiting s. 11(d) of the
Charter
by means of the presumption of belief
    in s. 172.1(3) of the
Code
outweigh the deleterious effects of this
    limitation. The presumption of innocence protected by s. 11(d) of the
Charter
is, after all, a hallowed principle lying at the very heart of criminal law
    that confirms our faith in humankind and reflects our belief that
    individuals are decent and law‑abiding members of the community until
    proven otherwise:
Oakes
, at pp. 119-120.

[75]

I conclude that the Crown has not established on a balance of
    probabilities that the infringement of s. 11(d) of the
Charter
imposed
    by s. 172.1(3) of the
Code
is demonstrably justified under s. 1 of the
Charter
.

[76]

Section 172.1(3) of the
Code
is therefore of no force of effect
    pursuant to s. 52(1) of the
Constitution Act, 1982
.

[77]

In the present case, Morrison was not convicted by means of the
    presumption of belief in s. 172.1(3). Because the trial judge held that the
    Crown had proven beyond a reasonable doubt that Morrison failed to take
    reasonable steps to ascertain Mias age, Morrisons conviction stands or
    falls with the constitutionality of the reasonable steps requirement under s.
    172.1(4) of the
Code
. I will now consider his challenge to this
    provision under s. 7 of the
Charter
.

(4)

Does the Reasonable Steps Requirement Infringe s. 7 of the
Charter
?

[78]

Section 7 of the
Charter
provides:

Everyone has the right to life, liberty and
    security of the person and the right not to be deprived thereof except in
    accordance with the principles of fundamental justice.

[79]

In a prosecution under s. 172.1, if the Crown fails to prove that the
    accused believed that the other person was underage, the Crown will still
    obtain a conviction if it proves beyond a reasonable doubt that the accused
    failed to take reasonable steps to ascertain the other persons age.

[80]

Morrison submits that this amounts to an infringement of s. 7 of the
Charter
.
    He says that conviction for the offence of child luring carries such stigma
    that it is necessary for the fault element of the offence to be subjective. He
    says that s. 174.1(4) permits conviction on the objective standard of
    negligence, or failing to take reasonable steps to ascertain the interlocutors
    age.

[81]

I will set out the applicable legal principles before considering the
    reasonable steps requirement in light of them.

(1)

Legal Principles

[82]

In
Vaillaincourt
, and later in
R. v. Martineau
, [1990]
    2 S.C.R. 633, the Supreme Court held that certain of the constructive murder offences
    in the
Code
infringed s. 7 of the
Charter
. In addition to the
    intention to engage in the unlawful conduct that causes death, conviction for constructive
    murder requires proof beyond a reasonable doubt of subjective foreseeability of
    death by the accused. The court reasoned that, under the principles of
    fundamental justice, the degree of fault required for a conviction for a
    particular offence must be proportionate to the degree of stigma, punishment
    and moral blameworthiness that the conviction attracts. With murder being the
    offence that attracts the highest degree of stigma, a culpable homicide can be
    treated as murder only if subjective foreseeability of death is part of the
mens
    rea
. See also
R. v. Shand
, 2011 ONCA 5, 104 O.R. (3d) 491, at
    paras. 161-185.

[83]

In
Martineau
, at pp. 645-646, Lamer C.J. explained the concept
    of proportionality embodied in the substantive restrictions on Parliaments
    criminal law power under s. 7 of the
Charter
:

A conviction for murder carries with it the
    most severe stigma and punishment of any crime in our society. The principles
    of fundamental justice require, because of the special nature of the stigma
    attached to a conviction for murder, and the available penalties, a
mens
    rea
reflecting the particular nature of that crime.  In my view, in
    a free and democratic society that values the autonomy and free will of the
    individual, the stigma and punishment attaching to the most serious of crimes,
    murder, should be reserved for those who choose to intentionally cause death or
    who choose to inflict bodily harm that they know is likely to cause death. The
    essential role of requiring subjective foresight of death in the context of
    murder is to maintain a proportionality between the stigma and punishment
    attached to a murder conviction and the moral blameworthiness of the offender. Murder
    has long been recognized as the worst and most heinous of peace time crimes.
    It is, therefore, essential that to satisfy the principles of fundamental
    justice, the stigma and punishment attaching to a murder conviction must be
    reserved for those who either intend to cause death or who intend to cause
    bodily harm that they know will likely cause death.

[84]

In
R. v. Logan
,
    [1990] 2 S.C.R. 731, the court extended its conclusion on murder to attempted
    murder, holding that this offence also requires subjective
mens rea
under s. 7 of the
Charter
. The
    stigma for being convicted of attempted murder is the same as being convicted
    for murder; the only differences between the murderer and the attempted
    murderer are the consequences of their actions, not their subjective foresight
    of the likelihood of death as the result of their actions. In his reasons,
    Lamer C.J. clarified that the criteria for
identifying a high-stigma offence mandating
    proportionality with its fault element are, primarily, the stigma associated
    with a conviction and, as a secondary consideration, the penalties available:
p.
    743.

[85]

The rulings in
Vaillancourt
,
Martineau
, and
Logan
were limited to the need for a subjective standard of fault for
    murder and attempted murder. In
Vaillancourt
,
    Lamer C.J. suggested at p. 653 that the fault standard for the offence of theft
    would also have to be proportionate to the moral blameworthiness of stigma of
    the thief, requiring proof of subjective dishonesty. But he also stated at p.
    653 that there is a constitutional requirement for a minimum fault standard
    only for certain crimes, because of the special nature of the stigma attached
    to a conviction therefor or the available penalties, and that these offences
    would be very few in number.

[86]

By way of example, in
R. v. Creighton
, [1993] 3 S.C.R.
    3, the Supreme Court considered the required level of fault under s. 7 of the
Charter
for the offence of manslaughter predicated on an unlawful act or criminal
    negligence that causes death. It held that it was not contrary to the
    principles of fundamental justice for the
mens rea
of manslaughter to
    be objective foreseeability of the risk of bodily harm. In so doing, McLachlin
    J. (as she then was) reasoned at pp. 47-48 that, although the commission of manslaughter
    is morally blameworthy and stigmatizing, it is less so than the commission of
    murder because it is confined to non-intentional homicide. Furthermore, she
    wrote, the punishment for murder is higher than the punishment for
    manslaughter, which may vary depending on the seriousness of the underlying
    unlawful act: p. 49. She concluded that the fault standard of objective
    foreseeability of the risk of bodily harm, rather than foreseeability of death,
    is proportionate to the social stigma attaching to manslaughter, writing at p.
    48:

It would shock the publics conscience to
    think that a person could be convicted of manslaughter absent any moral fault
    based on foreseeability of harm. Conversely, it might well shock the public's
    conscience to convict a person who has killed another only of aggravated
    assault  the result of requiring foreseeability of death  on the sole
    basis that the risk of death was not reasonably foreseeable. The terrible
    consequence of death demands more. In short, the
mens rea
requirement
    which the common law has adopted  foreseeability of harm  is entirely
    appropriate to the stigma associated with the offence of manslaughter. To
    change the
mens rea
requirement would be to risk the very
    disparity between
mens rea
and stigma of which the appellant
    complains.

[87]

Creighton
illustrates the principle
    recognized previously in cases such as
R. v. Hundal
, [1992] 2 S.C.R. 944, and
R. v. DeSousa
, [1992] 2 S.C.R. 944  that there is no general constitutional
    requirement of subjective fault for all criminal offences. An objective standard
    of fault is constitutionally sufficient for a broad range of offences other
    than those falling within the parameters mentioned in
Vaillancourt
. The Supreme Courts more recent decision in
R. v.
    Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49,
teaches
    that negligence can support criminal fault. That is, a conviction for dangerous
    operation of a motor vehicle can be supported where the negligent conduct
    amounted to a marked departure from the standard of care that a reasonable
    person would observe. The court wrote at paras. 34-36:

Therefore, as noted by Cory J., the difficulty
    of requiring positive proof of a particular subjective state of mind lends
    further support to the notion that
mens rea
should be assessed by
    objectively measuring the drivers conduct against the standard of a reasonably
    prudent driver. In addition, I would note that the automatic and reflexive
    nature of driving gives rise to the following consideration. Because driving,
    in large part, is automatic and reflexive, some departures from the standard
    expected of a reasonably prudent person will inevitably be the product, as Cory
    J. states, of little conscious thought. Even the most able and prudent driver
    will from time to time suffer from momentary lapses of attention. These lapses
    may well result in conduct that, when viewed objectively, falls below the
    standard expected of a reasonably prudent driver. Such automatic and reflexive
    conduct may even pose a danger to other users of the highway. Indeed, the facts
    in this case provide a graphic example. The fact that the danger may be the
    product of little conscious thought becomes of concern because, as McLachlin J.
    (as she then was) aptly put it in
R. v. Creighton
, 1993 CanLII 61
    (SCC), [1993] 3 S.C.R. 3, at p. 59: The law does not lightly brand a person as
    a criminal. In addition to the largely automatic and reflexive nature of
    driving, we must also consider the fact that driving, although inherently
    risky, is a legal activity that has social value. If every departure from the
    civil norm is to be criminalized, regardless of the degree, we risk casting the
    net too widely and branding as criminals persons who are in reality not morally
    blameworthy. Such an approach risks violating the principle of fundamental
    justice that the morally innocent not be deprived of liberty.

In a civil setting, it does not matter how far
    the driver fell short of the standard of reasonable care required by law. The
    extent of the drivers liability depends not on the degree of negligence, but
    on the amount of damage done. Also, the mental state (or lack thereof) of the
    tortfeasor is immaterial, except in respect of punitive damages. In a criminal
    setting, the drivers mental state does matter because the punishment of an innocent
    person is contrary to fundamental principles of criminal justice. The degree of
    negligence is the determinative question because criminal fault must be based
    on conduct that merits punishment.

For that reason, the objective test, as
    modified to suit the criminal setting, requires proof of a marked departure
    from the standard of care that a reasonable person would observe in all the
    circumstances. As stated earlier, it is only when there is a marked departure
    from the norm that objectively dangerous conduct demonstrates sufficient
    blameworthiness to support a finding of penal liability. With the marked
    departure, the act of dangerous driving is accompanied with the presence of
    sufficient
mens rea
and the offence is made out. The Court, however,
    added a second important qualification to the objective test  the allowance
    for exculpatory defences.

[88]

Beatty
established that it is constitutionally permissible for
    the
fault standard for the
offence of dangerous driving to be objective. There had previously been similar
    interpretations of the fault standard for other offences related to highly
    regulated matters, such as use of firearms (
R. v. Finlay
,
[1993] 3 S.C.R. 103), or offences where
    societal norms require adherence to a standard of conduct, such as providing
    the necessaries of life to children (
R. v. Naglik
,
[1993] 3 S.C.R. 122).

[89]

In
Darrach
,

this court
    considered whether 273.2(b) of the
Code

infringes
    s. 7 of the
Charter
. As stated above, s.
    273.2(b) provides that a belief in consent is not a defence to a charge of
    sexual assault if the accused did not take reasonable steps, in the
    circumstances known to the accused at the time, to ascertain that the
    complainant was consenting. Morden A.C.J.O. decided the case under the
    assumption that sexual assault constitutes a high-stigma offence. However, he
    held at p. 24 that, notwithstanding s. 273.2(b), the offence is still largely
    one based on subjective fault  at least to a level that would satisfy
    constitutional requirements. He reasoned as follows at pp. 24-25:

No doubt, the provision can be regarded as
    introducing an objective component into the mental element of the offence but
    it is one which, in itself, is a modified one. It is personalized according to
    the subjective awareness of the accused at the time. The accused is to take
    reasonable steps, in the circumstances known to the accused at the time, to
    ascertain that the complainant was consenting. In other words, the accused is
    not under an obligation to determine all the relevant circumstances  the issue
    is what he actually knew, not what he ought to have known.

In addition, while the provision requires
    reasonable steps, it does not require that all reasonable steps be taken  as
    does s. 150.1(4) of the
Criminal Code
, which is referred to in the
    judgment of the Supreme Court of Canada in
R. v. Hess; R. v. Nguyen
,
    [1990] 2 S.C.R. 906 at 922 and 925. Clearly, all reasonable steps imposes a
    more onerous burden than that in s. 273.2(b). I, of course, do not intend to
    express any view on the constitutionality of s. 150.1(4).

The subjective
mens rea
component of
    the offence remains largely intact. The provision does not require that a
    mistaken belief in consent must be reasonable in order to exculpate. The
    provision merely requires that a person about to engage in sexual activity take
    reasonable steps  to ascertain that the complainant was consenting. Were a
    person to take reasonable steps, and nonetheless make an unreasonable mistake
    about the presence of consent, he or she would be entitled to ask the trier of
    fact to acquit on this basis.

[90]

The thrust of Morden A.C.J.O.s reasoning in
Darrach
is that, although s. 273.2(b) of the
Code

introduces an objective dimension to the fault standard for sexual
    assault, namely a requirement to take reasonable steps, there remains a
    sufficient subjective element to the standard that enables it to withstand
    constitutional attack. Sexual assault is not an offence resting purely on the
    accuseds subjective belief; physical contact of a sexual nature is ordinarily
    an essential element of the offence. It also did not then attract a minimum
    jail sentence. It is therefore not one of those rare offences for which purely
    subjective fault is necessary. It was Morden A.C.J.O.s view that this
    conclusion would not amount to punishing the morally innocent, as it is
    difficult to contemplate that a man who has sexual intercourse with a woman who
    has not consented is morally innocent if he has not taken reasonable steps to
    ascertain that she was consenting: p. 25.

(2)

Application to s. 172.1(4) of the
Code

[91]

I agree with the trial judge that the reasonable steps requirement in s. 172.1(4)
    does not infringe s. 7 of the
Charter
.

[92]

To begin, I accept the appellants submission that conviction for the
    offence of child luring carries a high degree of stigma and moral
    blameworthiness for the accused. Child luring is an inchoate offence that
    prohibits conduct preparatory to the commission of a designated offence
    involving the sexual exploitation of children. Engaging in this preparatory conduct
    over the internet involves luring or grooming young persons to commit or
    participate in the prohibited conduct; by reducing their inhibitions; or by
    prurient discourse that exploits a young persons curiosity, immaturity or
    precocious sexuality:
Legare
, at para. 28. It also often involves
    cultivating a sense of trust in the young person with a view to taking
    advantage of that trust for a sexual purpose:
Legare
, at para. 30. This
    is conduct that rightly invites significant social disapprobation and moral
    blameworthiness.

[93]

This conclusion is bolstered by the fact that conviction for child
    luring under s. 172.1(1) carries a punishment under s. 172.1(2) of imprisonment
    of up to 14 years, a mandatory minimum of one year for indictable offences and
    a mandatory minimum of ninety days for summary conviction offences. The
    severity of the punishment, including mandatory terms of imprisonment, is an
    indication by Parliament of the social opprobrium visited upon those convicted
    of child luring. Similarly, the fact that an offender is subject to
    registration under
SOIRA
, as Morrison was in this case, is indicative
    of the stigma associated with the underlying sexual offence:
R. v. Dyck
,
    2008 ONCA 309, 90 O.R. (3d) 409, at para. 81.

[94]

The stigma of child luring, however, cannot be said to be as high as the
    stigma of murder. As Lamer C.J. wrote in
Vaillancourt
, murder is the
    most serious of crimes and has long been recognized as the worst and most
    heinous of peace time crimes. See also
R. v. Arkell
, [1990] 2 S.C.R.
    695, at p. 703. The high stigma associated with a conviction for child luring
    does not necessarily put it into the rare category of offences recognized in
Vaillaincourt
as requiring subjective fault under s. 7 of the
Charter
.

[95]

I also accept that an accuseds failure to take reasonable steps to
    ascertain the age of an online interlocutor adds an objective dimension to the fault
    standard for the child-luring offence. This proposition emerges upon
    consideration of the elements of the offence under s. 172.1 and the degree of
    fault that may result in conviction. In some cases, as here, the allegation is
    that the accuseds internet communication was made to facilitate the commission
    of the offence of an invitation to sexual touching of a person under 16 years
    of age. In this context, the child luring offence amounts to communication for
    the purpose of extending the invitation, counsel or incitation. The same
    communication may underlie both the
actus reus
and
mens rea
elements.
    Where this occurs in the context of a sting operation, and the sexual purpose
    is evident from the text of the communication, criminal liability will likely
    turn on two issues:

1.

Firstly, has the
    Crown proven that the accused subjectively believed his interlocutor was
    underage? The Crown could not prove this without some evidentiary foundation
    for such a belief, such as a representation made to the accused. If the Crown
    establishes beyond a reasonable doubt that the accused believed his
    interlocutor was underage, conviction will follow.

2.

Secondly, where
    the Crown is unable to establish this subjective belief, the issue of
    reasonable steps arises. Even in the absence of proof of a belief that the
    other person was underage, the accused will be convicted if the Crown proves
    that he did not take reasonable steps to ascertain the age of the other person.
    This will occur in a context where there is some evidence that could lead an
    accused to believe his interlocutor was underage.

[96]

I therefore do not agree with the Crowns submission that, because a
    conviction for child luring requires the accused to have had the specific
    intention to facilitate a designated offence, the actual level of fault in s.
    172.1 of the
Code
is fully subjective. A failure to take the steps
    expected of a reasonable person is by definition negligence and may be
    sufficient to support conviction where, as above, the communication envisaged
    by s. 172.1 and the invitation proscribed in s. 152 are co-extensive.

[97]

On the other hand, s. 172.1(b) contemplates the facilitation of other
    offences most involving physical contact:

(i)

Section 151: sexual interference, touching a person under 16 years of
    age for a sexual purpose

(ii)

Section 160(3): bestiality in the presence of a child

(iii)

Section 173(2): exposure of genitals to a person under 16 years of age

(iv)

Section 271: sexual assault

(v)

Section 272: sexual assault with a weapon or causing bodily harm

(vi)

Section 280: aggravated sexual assault, sexual assault which maims,
    disfigures or endangers the life of the complainant

(vii)

Section 280: abduction of a person under 16 years of age

[98]

I do agree with the Crown that the determination as to whether the
    internet communication contemplated by s. 172.1 was made for the purpose of
    facilitating one of these other offences usually involving physical contact
    will be determined substantially on a subjective basis.

[99]

However, returning to the reasonable steps requirement in s. 172.1(4) of
    the
Code
impugned by Morrison, I conclude that properly interpreted,
    this encompasses more than a purely objective fault standard. Section 172.1(4),
    analogously to s. 273.2(b) of the
Code
, has been interpreted as only
    requiring a person accused of child luring to have taken the reasonable steps
    in the circumstances known to him or her to ascertain the age of the online
    interlocutor, rather than all reasonable steps from a purely objective
    perspective: see
R. v. Thain
, 2009 ONCA 223, 246 O.A.C. 55, at para.
    37;
R. v. Dragos
, 2012 ONCA 538, 111 O.R. (3d) 481, at paras. 35-41;
Pengelley
,
    at paras. 8-17; and
R. v. Ghotra
, 2016 ONSC 1324, 334 C.C.C. (3d) 222,
    at paras. 153-154. The accused must have taken some steps and they must have
    been reasonable in light of the known circumstances. The subjective dimension
    of s. 172.1(4) is analogous to that of s. 273.2(b) of the
Code
, which
    was held by Morden A.C.J.O. in
Darrach
to have diluted what would
    otherwise be a purely objective standard of fault.

[100]

Section 273.2(b)
    of the
Code
differs from s. 172.1 in that the former specifically
    includes the words in the circumstances known to the accused at the time. However,
    in light of the presumption that true crimes have a subjective fault component
    (
R. v. Saikaley
, 2017 ONCA 374, at para. 98), I would interpret s.
    172.1 in the same way. This is particularly important when dealing with an area
    where there are no well-established norms. Internet communications are quite
    unlike driving a motor vehicle or operating firearms. To speak of a marked
    departure from the conduct of a reasonable person seems inapt in the context
    of internet communications.

[101]

No doubt, even
    if the reasonable steps requirement in s. 172.1(4) is analogous to that in s.
    273.2(b), it still has an objective dimension. The fault element for child
    luring established by subsection (4) is not purely subjective, even if it is
    not purely objective. However, I am not persuaded that the stigma of being
    convicted of child luring constitutionally mandates a purely subjective
    standard of fault, akin to the stigma of murder. As in
Darrach
, it is
    difficult to contemplate that a person who continues a sexual conversation
    where there is reason to believe his or her interlocutor is under age is
    morally innocent. The moral culpability associated with failing to take
    reasonable steps to ensure that ones online communications do not amount to sexual
    predation of children is proportionate to the degree of stigma attached to the child
    luring offence, particularly given that the catastrophic consequences for child
    victims of internet luring are widely accepted and acknowledged: see Kent
    Roach, Mind the Gap: Canadas Different Criminal and Constitutional Standards
    of Fault (2011) 61:4 U.T.L.J. 545, at p. 567.

[102]

For these
    reasons, I conclude that the reasonable steps requirement in s. 172.1(4) of the
Code
does not infringe s. 7 of the
Charter
. This is the
    central ground Morrison advances for this court to interfere with the trial
    judges decision to convict him for failing to take reasonable steps to
    ascertain the other persons age beyond a reasonable doubt. Therefore,
    Morrisons appeal from his conviction is dismissed.

[103]

I shall turn now
    to address the Crowns sentence appeal. As discussed below, the possibility
    that a person accused of child luring may be convicted where it is proven
    beyond a reasonable doubt that he or she failed to take reasonable steps to
    support a belief that the other participant was of legal age  that he or she
    was negligent  has consequences for the constitutional validity of the
    mandatory minimum sentence to which I now turn.

C.

The Sentence Appeal

(1)

Decision of the Trial Judge

[104]

After finding
    Morrison guilty of child luring, the trial judge addressed Morrisons
    constitutional challenge to the one-year mandatory minimum sentence in s.
    172.1(2) of the
Code
. He concluded that the minimum was contrary to s.
    12 of the
Charter
because it was grossly disproportionate in relation
    to Morrisons circumstances, finding it unnecessary to consider hypothetical
    offenders.

[105]

In determining
    what would be an appropriate sentence for Morrison, he stated that, because
    Morrison was found to be unreasonably indifferent to the age of the
    interlocutor with whom he was communicating, his conduct was less blameworthy
    than an offender who enters into communications with an interlocutor who he
    knows or actively hopes is underage. Morrison was guilty of continuing a
    dialogue without taking reasonable steps to ensure the he was not communicating
    with a child. The fact that Morrison proposed a face-to-face encounter was an
    aggravating factor, but it had limited weight because there was no indication
    of what, if any, sexual offence might have been facilitated by the meeting.
    There was no actual harm, but the sexual communications exchanged by Morrison could
    have had the effect of damaging the emotional and sexual well-being of a
    14-year-old female had he been communicating with her instead of a police
    officer.

[106]

The trial judge
    found that Morrison had an unblemished character, with no prior criminal
    convictions, and was a productive member of society who held seasonal
    employment at as a groundskeeper at a local golf course. He had been in a
    common law relationship for 15 years and was a stepfather and step grandfather
    to his spouses offspring. He did not suffer from a mental disability or
    depression. He was old enough to appreciate the need to take reasonable care to
    ensure that sexually explicit communications are not conducted with someone who
    might be underage.

[107]

The trial judge
    held that, in the absence of the mandatory minimum, he would have imposed a
    sentence of four months imprisonment, followed by a period of probation, in
    order to achieve the goals of general and specific deterrence, denunciation and
    the need to separate the offender from the community. He held that the one-year
    mandatory minimum was grossly disproportionate to this benchmark, citing
    Morrisons comparatively lower moral blameworthiness, his previous good
    character and that fact that, being in his late sixties, a longer term of
    imprisonment would be harsh.

(2)

Positions of the Parties

[108]

On appeal, the
    Crown submits that the trial judge erred in concluding that a four month
    sentence would have been appropriate for Morrison in the absence of the
    mandatory minimum in s. 172.1(2) of the
Code
.

[109]

The Crown says
    that the trial judge erred in characterizing Morrisons blameworthiness as indifference
    to the age of his online interlocutor. At trial, the trial judge concluded that
    there was a reasonable doubt that Morrison believed that his interlocutor was
    underage. But, contrary to the reasoning of the trial judge, this does not mean
    that Morrison positively believed that his interlocutor was an adult.

[110]

Thus, the Crown
    says, there is no basis for the trial judges attribution of diminished
    culpability to Morrison. Morrisons culpability should have been determined on
    the basis of his subjective intention to facilitate invitation to sexual
    touching with his interlocutor. In this respect, Morrisons blameworthiness was
    high.

[111]

The Crown
    submits that the trial judge erred in holding that a four-month term of
    imprisonment would have been an appropriate sentence for Morrison because he
    did not follow this courts suggestion in
R. v. Jarvis
(2006), 211
    C.C.C. (3d) 20 (Ont. C.A.), at para. 31, that the sentencing range for the
    offence of child luring should be between 12 to 24 months. He also did not
    consider this courts subsequent caution that the range should be increased in
    light of amendments doubling the maximum penalty for this offence from 5 to 10
    years imprisonment: see
R. v. Woodward
, 2011 ONCA 610, 107 O.R. (3d)
    81, at para. 58; and
Dragos
, at para. 81. The Crown urges this court
    to at least adopt the range endorsed in
Jarvis
.

[112]

Finally, the
    Crown submits that this court should not find the mandatory minimum in s.
    172.1(2) grossly disproportionate in three reasonable hypothetical cases
    mentioned by the trial judge, one of which was developed by Griffin J. in
R.
    v. S.S.
, 2014 ONCJ 184, 307 C.R.R. (3d) 147.

[113]

In response,
    Morrison submits that the trial judge was correct to hold that the
    blameworthiness of an offender convicted under s. 172.1(1)(b) may vary based on
    the nature of the offence.
The trial judge
    properly recognized that the provision can capture those who are unreasonably
    indifferent to the age of the interlocutor and those who seek out or hope that
    the interlocutor is underage. The indifferent offender is less culpable than
    the deliberate offender.
Furthermore, the trial judge correctly took
    into account Morrisons lack of a prior criminal record and his age in
    concluding that a one-year term of imprisonment would be grossly
    disproportionate.

[114]

Morrison also
    submits that the one-year mandatory minimum sentence is grossly
    disproportionate to the sentences which would be imposed for the reasonable
    hypotheticals advanced in the court below.

(3)

Analysis

(1)

Legal Principles

[115]

Section 12 of
    the
Charter
provides:

Everyone has the right not to be subject to
    any cruel and unusual treatment or punishment.

[116]

The test for
    whether punishment is cruel and unusual under s. 12 asks whether it is grossly
    disproportionate to what would be appropriate punishment. This is a high bar;
    the punishment must be more than merely excessive:
Lloyd
, at para.
    24. See also
R. v. Smith
, [1987] 1 S.C.R. 1045, at p. 1072. Punishment
    is cruel and unusual if it is so excessive as to outrage standards of
    decency, such that Canadians would find it abhorrent or intolerable:
R.
    v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.

[117]

The Supreme
    Court has developed an analytical framework for assessing the constitutionality
    of mandatory minimum sentences under s. 12 in
R v. Lloyd
, 2016 SCC 13,
    [2016] 2 S.C.R. 13; and
R. v. Nur
, 2015 SCC 15, [2015] 1 S.C.R. 773.
Lloyd
addressed a one-year minimum sentence under the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19 (the
CDSA
). I extract the
    following principles from that decision:

·

A
    sentence will infringe s. 12 if it is grossly disproportionate to the
    punishment that is appropriate, having regard to the nature of the offence and
    the circumstances of the offender.

·

A
    law will violate s. 12 if it imposes a grossly disproportionate sentence on the
    individual before the court or if the laws reasonably foreseeable applications
    will impose grossly disproportionate sentences on others.

·

First,
    the court must determine what constitutes a proportionate sentence for the
    offence having regard to the objectives and principles of sentencing in the
Criminal
    Code
.

·

Second,
    the court must determine whether, in view of the fit and proportionate
    sentence, the mandatory minimum sentence is grossly disproportionate to the
    offence and its circumstances. If so, the provision violates s. 12.

·

The
    wider the range of conduct and circumstances captured by the mandatory minimum,
    the more likely it is that the mandatory minimum will apply to offenders for
    whom the sentence would be grossly disproportionate.

[118]

Further to this
    final point, McLachlin C.J. emphasized in
Lloyd
at para. 35 that
    mandatory minimum sentences that apply to offences that can be committed in
    various ways, under a broad array of circumstances and by a wide range of
    people are vulnerable to constitutional challenge:

This is because such laws will almost
    inevitably include an acceptable reasonable hypothetical for which the
    mandatory minimum will be found unconstitutional. If Parliament hopes to
    sustain mandatory minimum penalties for offences that cast a wide net, it
    should consider narrowing their reach so that they only catch offenders that
    merit the mandatory minimum sentences.

[119]

She described
    the degree of disproportion that the one-year minimum jail sentence in the
CDSA
would effect, at paras. 29-33:

First, it applies to any amount of Schedule I
    substances. As such, it applies indiscriminately to professional drug dealers
    who sell dangerous substances for profit and to drug addicts who possess small
    quantities of drugs that they intend to share with a friend, a spouse, or other
    addicts.

Second, the definition of traffic in the
CDSA
captures a very broad range of conduct. It targets not only people selling
    drugs, but all who administer, give, transfer, transport, send or deliver the
    substance (s. 2(1)), irrespective of the reason for doing so and regardless of
    the intent to make a profit. As such, it would catch someone who gives a small
    amount of a drug to a friend, or someone who is only trafficking to support his
    own habit.

Third, the minimum sentence applies when there
    is a prior conviction for any designated substance offence within the
    previous 10 years, which captures any of the offences in ss. 4 to 10 of the
CDSA
,
    except the offence of simple possession. In addition, the prior conviction can
    be for any substance, in any amount  even, for example, a small amount of
    marihuana.

At one end of the range of conduct caught by
    the mandatory minimum sentence provision stands a professional drug dealer who
    engages in the business of dangerous drugs for profit, who is in possession of
    a large amount of Schedule I substances, and who has been convicted many times
    for similar offences. At the other end of the range stands the addict who is
    charged for sharing a small amount of a Schedule I drug with a friend or
    spouse, and finds herself sentenced to a year in prison because of a single
    conviction for sharing marihuana in a social occasion nine years before. I
    agree with the provincial court judge that most Canadians would be shocked to
    find that such a person could be sent to prison for one year.

Another foreseeable situation caught by the
    law is the following. A drug addict with a prior conviction for trafficking is
    convicted of a second offence. In both cases, he was only trafficking in order
    to support his own addiction. Between conviction and the sentencing he goes to
    a rehabilitation centre and conquers his addiction. He comes to the sentencing
    court asking for a short sentence that will allow him to resume a healthy and
    productive life. Under the law the judge has no choice but to sentence him to a
    year in prison. Such a sentence would also be grossly disproportionate to what
    is fit in the circumstances and would shock the conscience of Canadians.

(2)

Does s. 172.1(2) of the Code Infringe s. 12 of the
Charter
?

[120]

I consider first
    what would have been a fit and appropriate sentence for Morrison in this case,
    given the nature of his offence of child luring and his circumstances. The trial
    judge held that a four-month term of imprisonment followed by a probation
    period would be fit.

[121]

The Crown
    submits that, in determining what sentence would be appropriate without regard
    to the mandatory minimum, the trial judge erred in concluding that Morrisons
    moral blameworthiness was diminished. I do not agree. The Crown failed to prove
    that the accused believed he was communicating with an underage person. It did
    prove he failed to take reasonable steps to ascertain the age of the other
    person. This degree of fault, negligence, taking into account what was known to
    Morrison, is significantly less blameworthy than the conduct of someone who,
    for example, deliberately sets about to lure a child. It is axiomatic that a
    person who commits an offence by negligence is less morally blameworthy than
    someone who intentionally commits a criminal offence. In
Creighton
,
    McLachlin J. noted that those causing harm intentionally must be punished more
    severely than those causing harm unintentionally: p. 46. She distinguished
    between the moral culpability for murder, which attracted a mandatory life
    sentence, and the moral culpability for manslaughter, for which there was no
    minimum sentence (pp. 48-49):

Murder entails a mandatory life sentence;
    manslaughter carries with it no minimum sentence. This is appropriate. Because
    manslaughter can occur in a wide variety of circumstances, the penalties must
    be flexible.  An unintentional killing while committing a minor offence, for
    example, properly attracts a much lighter sentence than an unintentional
    killing where the circumstances indicate an awareness of risk of death just
    short of what would be required to infer the intent required for murder. The
    point is, the sentence can be and is tailored to suit the degree of moral fault
    of the offender.

[122]

The Crown also
    submits that a four-month sentence this case was manifestly unfit for Morrison.
    It says that this ruling did not give adequate weight to this courts statement
    in
Jarvis
that the sentencing range for the offence of child luring
    should be between 12 and 24 months or the subsequent statements in
Woodward
that the range may need to be increased.

[123]

I also reject
    this submission. The trial judge explicitly referred to
Jarvis
in his
    reasons for sentence, comparing the circumstances of the offender in that case
    and Morrisons circumstances, and carefully distinguished its application from
    this case. He also gave comprehensive consideration to the relevant aggravating
    and mitigating factors in this case.

[124]

The trial judge
    stated at para. 80 of his reasons for sentence that [t]he case law is clear
    that the predominant sentencing principles applicable to the child luring
    offence are general and specific deterrence, denunciation and the need to
    separate offenders from society. This is consistent with the guidance offered
    by this court in
Woodward
. Moldaver J.A. (as he then was) wrote at
    para. 76:

I wish to emphasize that when trial judges are
    sentencing adult sexual predators who have exploited innocent children, the
    focus of the sentencing hearing should be on the harm caused to the child by
    the offender's conduct and the life-altering consequences that can and often do
    flow from it.
While the effects of a conviction on the
    offender and the offenders prospects for rehabilitation will always warrant
    consideration, the objectives of denunciation, deterrence, and the need to
    separate sexual predators from society for societys well-being and the
    well-being of our children must take precedence.
[Emphasis added.]

[125]

I note that in
Alicandro
,
    a case following
Jarvis
but preceding
Woodward
, this court
    upheld a sentence of 90 days intermittent imprisonment days imposed by the
    trial judge for the offence of child luring. Like the present case,
Alicandro
also involved a sting operation where the accused was communicating with an
    undercover police officer.

[126]

I acknowledge
    that in
Woodward
, at para. 58, this court expressed the opinion that
    an upward change to the 12 to 24-month sentencing range for child luring
    referred to in
Jarvis
needs to be revised, and that much stiffer
    sentences, in the range of three to five years, might well be warranted to
    deter, denounce and separate from society adult predators who would commit this
    insidious crime. The conduct of which the offender in
Woodward
was
    convicted was much more serious than Morrisons conduct in this case. It
    involved: offers of exorbitant sums of money for the 12-year-old complainant to
    have sex with him; gaining the complainants trust by letting her discuss her
    personal life; having a face-to-face meeting with the complainant at which
    sexual acts were performing, including oral and vaginal intercourse; pretending
    to call a bank in the complainants presence to transfer millions of dollars to
    her; and telling the complainant that her age did not matter. This court
    affirmed the trial judges global sentence of six-and-one-half years. The
    opinion expressed in
Woodward
has been followed in cases where the
    child-luring offence at issue was similarly serious: see, for example,
R.
    v. D.M.
, 2012 ONCA 520, 11 O.R. (3d) 321.

[127]

By contrast, in
Dragos
,
    this court likewise acknowledged the opinion expressed in
Woodward
,
but proceeded to affirm a 23-month
    sentence for child luring, which was within the range referred to in
Jarvis
.
    The range was also adhered to as recently as
R. v. Rafiq
, 2015 ONCA
    768, 342 O.A.C. 193, in which this court imposed a sentence of two years
    imprisonment for child luring even though, referencing
Woodward
, it
    commented that an upward revision to the
Jarvis
range would
    [a]rguably be required.

[128]

What emerges
    from this brief review of the case law on the range is that the parameters
    established in
Jarvis
are flexible and dependent on the particular
    facts of the case. The range of seriousness of offences committed under s.
    172.1 is evidently very wide.

[129]

As with all
    sentencing decisions, much will depend on the specific facts of the case and
    the circumstances of the offender and the nature of the offence at issue. Here,
    the trial judge considered these facts comprehensively and correctly sought the
    guidance set out in
Woodward
. I can discern no error in principle that
    would undermine the trial judges assessment that a sentence of four months
    imprisonment was appropriate for this offence and this offender: see
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44; and
R. v. C.K
.,
    2015 ONCA 747, 342 O.A.C. 37, at para. 51.

[130]

I conclude that
    this supplies an accurate benchmark against which to measure whether the
    mandatory minimum in s. 172.1(2) of the
Code
is grossly
    disproportionate in relation to Morrison in applying the s. 12
Charter
framework.

[131]

In my view, the
    disparity between the one-year mandatory minimum and what would otherwise be a
    fit and appropriate sentence for Morrison is sufficient to meet the high bar of
    gross disproportionality under s. 12. Morrisons blameworthiness is diminished
    in that it cannot be said that he believed his interlocutor was underage when
    engaging in sexualized conversations. He is culpable only for having acted
    unreasonably in failing to take steps to ensure that the other person was not
    underage. Communication online with an adult for a sexual purpose is not in
    itself a crime. Although his communications persisted for some two months, it
    cannot be said that he knowingly embarked on a systematic process of grooming a
    young person for sexual activity or to facilitate commission of a sexual
    assault that would merit a substantial sentence of imprisonment well above the
    fourth months he received. In this sense, the facts of this case are
    distinguishable from those in
Woodward
. There was never any
    face-to-face encounter and, as the trial judge found significant, there was no
    indication Morrison intended to commit a physical sexual offence in relation to
    an underage child. He eventually ended his communications unilaterally. He is in
    his late sixties, is a productive member of society and has no criminal record.
    The child luring offence must be taken seriously given the potential harm it
    could result in for the most vulnerable members of our society, but in this
    case no actual harm resulted from Morrisons transgression.

[132]

On the other
    hand, an offender who knowingly embarks on a systematic process of grooming a
    young person for sexual activity or to facilitate commission of a sexual
    assault would merit a substantial sentence of imprisonment, in some cases, well
    above the mandatory minimum.

[133]

Application of
    the mandatory minimum to such a wide range of behaviour would result in
    sentences that are grossly disproportionate for some individuals. The Supreme
    Court has held in
Nur
and
Lloyd
that mandatory minimum prison
    sentences having this character are more prone to infringe s. 12 of the
Charter
.

[134]

I conclude that
    Canadians would find it abhorrent and intolerable to their sense of decency
    that offenders whose blameworthiness comes close to negligence or whose
    comparative blameworthiness is similarly less serious would be sentenced to a
    minimum of one year in jail.

[135]

I therefore need
    not consider the reasonable hypotheticals put to the trial judge as other
    examples of instances in which a one year minimum would amount to a grossly
    disproportionate sentence.

[136]

The Crown did
    not attempt to justify any s. 12 infringement under s. 1 of the
Charter
.

[137]

The mandatory
    minimum sentence of one year of imprisonment contained in section 172.1(2)(a)
    of the
Code
is therefore of no force or effect pursuant to s. 52(1) of
    the
Constitution Act, 1982
.

[138]

I would dismiss
    the Crowns appeal from the trial judges decision on sentence.

D.

disposition

[139]

Accordingly, for
    these reasons, the appeals by both the accused and the Crown are dismissed.

G. Pardu J.A.

I agree David Watt
    J.A.

I agree K. van
    Rensburg J.A.

Released: July 10, 2017