(delivered the judgment of the court)
The Internet is an open door to knowledge, entertainment, communication – and exploitation.
We are concerned on this appeal with legislation adopted by Parliament to shut that door on predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents. Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer “chats” – and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person.
Our concern, more particularly, is with s. 172.1 of the Criminal Code, R.S.C. 1985, c. C-46, which prohibits the use of computers to communicate with underage persons “for the purpose of facilitating the commission” of a specified (or secondary) offence. And, more particularly still, our concern is with s. 172.1(1)(c), which consists of three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence – that is, abduction or one of the sexual offences mentioned in s. 172.1(1)(c) with respect to that person. Included among them is “Invitation to sexual touching”, a crime under s. 152 of the Code.
The appellant was tried and acquitted on two counts in the Court of Queen’s Bench of Alberta (2006 ABQB 248, 395 A.R. 171). The first count alleged an offence under s. 152, the second, an offence under s. 172.1(1)(c). The appellant’s acquittal on the first count was affirmed by the Court of Appeal (2008 ABCA 138, 89 Alta. L.R. (4th) 1) and is not in issue before us. This appeal relates only to the second count, laid under s. 172.1(1)(c).
I would dismiss the appeal.
In my respectful view, the trial judge, in acquitting the appellant on the second count, adopted an unduly restrictive construction of s. 172.1(1)(c) and, in the result, misapprehended the essential elements of the offence. Like the Court of Appeal, I would therefore set aside the appellant’s acquittal and order a new trial on that count.
Since a new trial will be had, a brief overview of the facts will necessarily suffice.
On April 28, 2003, the appellant, Craig Bartholomew Legare, engaged in two private online “chats” with the complainant, who was 12 years old at the time. Mr. Legare, 32, claimed to be 17. He was then in Alberta, and the complainant was in Ontario. They first “met” in a public chat forum but moved “fairly quickly” from a public to a private chat. These initial exchanges were not recorded; Mr. Legare admits, however, that the private chat was sexual in nature.
The second private chat began shortly after the first. It was recorded and a transcript was entered in evidence at trial. According to the Agreed Statement of Facts, “the conversation [was] almost entirely sexual and include[d] words uttered by both parties indicating a desire to engage in explicit sexual activity with [one another]”.
Again during this second chat, Mr. Legare asked the complainant to e-mail her photo to him. She made two attempts, both in vain. Later, Mr. Legare inquired about the complainant’s age: “and u r 14”, he wrote. The complainant replied that she was 13; as mentioned earlier, she was in fact 12.
Mr. Legare may have been dismayed, but he was not deterred. The complainant gave Mr. Legare her phone number; he, in turn, gave the complainant his postal address. Mr. Legare told the complainant that he would call her to “talk dirty”. And he was true to his word. He called immediately afterward and, in the second of two conversations, told the complainant – in coarse and explicit language – that he “would love” to perform oral sex on her. The complainant hung up and there were no further calls.
The complainant’s father was alerted by the complainant’s older sister, who had answered Mr. Legare’s first call. The police were notified and a transcript of the second chat was eventually retrieved.
On January 4, 2005, nearly two years after the chat sessions, Mr. Legare was arrested and his computer was seized. No child pornography or record of other incriminating communications was found. Mr. Legare was charged with one count of invitation to sexual touching, contrary to s. 152 of the Criminal Code, and one count of luring a child, contrary to s. 172.1(1)(c).
Mr. Legare’s trial proceeded on an Agreed Statement of Facts and a transcript of the second online chat. No witnesses were called. In addition to the facts I have already set out, the Agreed Statement includes these two paragraphs:
.... It is not admitted by the accused, however, that he intended to commit a sexual offence with the complainant nor that he intended to facilitate the commission of a sexual offence with the complainant.
The accused did not make any efforts to meet the complainant nor did he intend to do so.
The trial judge characterized Mr. Legare’s conduct as “both despicable and repugnant” (at para. 1), but found that it was not caught by either count. As mentioned earlier, only the second count, under s. 172.1(1)(c) of the Code, concerns us here. In its relevant part, that count alleges that Mr. Legare did “by means of a computer system, communicate with a person who was .... under the age of fourteen years, for the purpose of facilitating the commission of an offence under section 151 or 152 with respect to that person”.
Sections 151 and 152 of the Code, at the relevant time, provided as follows:
Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
Every person, who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
The trial judge analysed both the actus reus, or prohibited act, and mens rea, or culpable intent, that in his mind together constitute the essential elements of s. 172.1(1)(c).
With respect to the actus reus, the trial judge held that the Crown was bound – but had failed – to establish that Mr. Legare’s conduct facilitated the commission of one of the specified secondary offences.
And with respect to the mens rea, the trial judge accepted defence counsel’s submission that the phrase “for the purpose of facilitating the commission of an offence” requires an intention to lure for the specific purpose contemplated by s. 172.1(1)(c). The judge recognized that the Crown was not required to prove that the accused intended to carry out the specified secondary offence. He concluded, however, that the accused must be shown to have intended to lure a child for that purpose. Mr. Legare did not arrange a meeting with the complainant; nor did he intend to do so. His intention to “talk dirty” was insufficient. In the trial judge’s words (at para. 22):
The Crown need not prove the accused actually intended to carry out the enumerated secondary offence, but the Crown does need to prove the accused intended to lure the child for that purpose.
In the trial judge’s view, to interpret s. 172.1 otherwise would cast “the net too wide” (para. 11). He therefore felt bound to acquit Mr. Legare on the second count as well as the first.
As mentioned earlier, the Court of Appeal affirmed Mr. Legare’s acquittal on the first count, but set aside his acquittal on the second and ordered a new trial.
Speaking for a unanimous court, Watson J.A. held that the trial judge had adopted an unduly narrow interpretation of s. 172.1 (1)(c), notably in appearing to require as an essential element of that offence a “present intent to bring about an opportunity to commit one of the secondary offences” (para. 67). According to Justice Watson, the trial judge “erred in law in his interpretation of the requisite actus reus and mens rea under s. 172.1(1)(c) in that regard”. And, having misdirected himself as to the essential elements of the offence, the judge “did not assess the proper questions of fact and did not make relevant fact findings” (para. 67).
Moreover, in the absence of “case-specific reasons” that would authorize the Court of Appeal to make its own findings of fact, notably as to the requisite mens rea, a new trial was found to be the proper remedy (para. 68).
At the time of the appellant’s trial, s. 172.1(1)(c) of the Criminal Code provided:
It will immediately be seen that s. 172.1(1)(c) creates an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey.
Speaking for the court in R v Alicandro, 2009 ONCA 133, 246 C.C.C. (3d) 1, Doherty J.A. observed that the purpose of s. 172.1 is evident from its language. I agree. In Justice Doherty’s words (at para. 36):
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:
(Gregory J. Fitch, Q.C., “Child Luring” (Paper presented to the National Criminal Law Program: Substantive Criminal Law, Advocacy and the Administration of Justice, Edmonton, Alberta, July 2007), Federation of Law Societies of Canada, 2007, at s. 10.1, pp. 1 & 3)
What s. 172.1(1) prohibits is thus apparent both from its remedial purpose and from the express terms adopted by Parliament to achieve that objective.
Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, “facilitating” includes helping to bring about and making easier or more probable – for example, by “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 person’s curiosity, immaturity or precocious sexuality.
I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics.
As Hill J. explained in R v Pengelley,  O.J. No. 1682 (QL) (S.C.J.), at para. 96:
.... computer communications may serve to sexualise or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexual exploitation of a young person.
Accordingly, the content of the communication is not necessarily determinative: what matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an underage victim for the purpose of facilitating the commission of a specified secondary offence in respect of that victim.
The underlined words in the preceding paragraph, drawn textually from 172.1 (1)(c), make clear that the intention of the accused must be determined subjectively. I agree in this regard with the Attorney General of Ontario. As Doherty J.A. stated in Alicandro, at para. 31, the accused must be shown to have “engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences” with respect to the underage person who was the intended recipient of communication (emphasis added).
This view is commanded not only by the plain meaning of s. 172.1(1)(c) but also by precedent regarding other “for the purpose” offences in the Criminal Code, and policy considerations governing preparatory offences of this kind. As Andrew Ashworth puts it:
.... inchoate crimes are an extension of the criminal sanction, and the more remote an offence becomes from the actual infliction of harm, the higher the degree of fault necessary to justify criminalisation.
(Principles of Criminal Law (6th ed. 2009) at p. 456)
As mentioned earlier, this policy consideration is particularly relevant to s. 172.1 of the Code, which criminalizes preparatory conduct even more remote from the infliction of harm than other incipient or inchoate crimes, such as attempt and counselling or procuring the commission of an offence.
The application of a subjective standard of fault is appropriate as well in light of the broad nature of the act component of s. 172.1. Requiring the Crown to prove that the accused communicated by computer with the specific intent mandated by the plain language of the provision helps to ensure that innocent communication will not be unintentionally captured by the Code.
To sum up, then, I reiterate that s. 172.1(1)(c) comprises three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence – that is, abduction or one of the sexual offences mentioned in s. 172.1(1)(c) – with respect to the underage person.
All three elements must, of course, be established by the Crown beyond a reasonable doubt.
In determining whether the Crown has discharged its burden under s. 172.1, it is neither necessary nor particularly helpful for trial judges to recast every element of the offence in terms of its actus reus, or “act” component, and its mens rea, or requisite mental element. As in the case of attempt, s. 172.1 criminalizes otherwise lawful conduct when its specific purpose is to facilitate the commission of a specified secondary offence with respect to an underage person. Separately considered, neither the conduct itself nor the purpose alone is sufficient to establish guilt: It is not an offence under s. 172.1 to communicate by computer with an underage person, nor is it an offence under s. 172.1 to facilitate the commission of a specified secondary offence in respect of that person without communicating by computer.
In this unusual context, determining whether each of the essential elements I have set out constitutes all or part of the actus reus or mens rea of s. 172.1(1)(c) is of no assistance in reaching the appropriate verdict on a charge under that provision. More specifically, forcibly compartmentalizing the underage requirement of s. 172.1(1)(c) – “a person who is, or who the accused believes is, under the age of fourteen years” – as either part of the actus reus or part of the mens rea, may well introduce an element of confusion in respect of both concepts.
Is it part of the actus reus that the accused communicated with a person of any age whom the accused believed to be under 14? Is it part of the mens rea that the person was in fact under 14? I see no conceptual or practical advantage in attempting to resolve these questions. It seems to me preferable, in setting out the elements of s. 172.1, to adopt “language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation”: Howard’s Criminal Law (5th ed. 1990), p. 11.
I believe that the elements of the offence, as I have set them out, achieve that objective: They satisfy the principle of legality by affording the required degree of certainty, respecting the will of Parliament, and reflecting “the overall need to use the criminal law with restraint”: see D. Stuart, Canadian Criminal Law: A Treatise (5th ed. 2007), p. 86.
Finally, it is neither necessary nor necessarily sufficient for the impugned acts of the accused to be objectively capable of facilitating the commission of the specified secondary offence with respect to the underage person concerned. Accordingly, the content of the communication is not necessarily determinative: What matters, I repeat, is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an underage victim for the purpose of facilitating the commission of a specified secondary offence with respect to that victim.
For all of these reasons, I would dismiss Mr. Legare’s appeal.
As mentioned at the outset, the trial judge, in acquitting Mr. Legare, adopted an unduly restrictive construction of s. 172.1(1)(c) and misapprehended the essential elements of the offence. Understandably, he therefore did not make the findings of fact necessary to warrant either an acquittal or a conviction on a proper understanding of the section.
In these circumstances, I agree with the Court of Appeal that Mr. Legare’s acquittal must be set aside and a new trial must be had.
 Here and throughout my reference is to s. 172.1(1)(c) as it read at the time of trial. It has since been renumbered as 172.1(1)(b) and amended to raise the underage requirement to 16 years from 14.
R v Alicandro, 2009 ONCA 133, 246 C.C.C. (3d) 1; R v Pengelley,  O.J. No. 1682 (QL).
Criminal Code, R.S.C. 1985, c. C-46, ss. 151, 152, 172.1.
Authors and other references
Ashworth, Andrew. Principles of Criminal Law, 6th ed. Oxford: Oxford University Press, 2009.
Howard, Colin. Howard’s Criminal Law, 5th ed. by Brent Fisse. North Ryde, N.S.W.: Law Book Co., 1990.
Stuart, Don. Canadian Criminal Law: A Treatise, 5th ed. Scarborough, Ont.: Thomson Carswell, 2007.
Laura K. Stevens, Q.C., and Sarah DeSouza (instructed by M/s Dawson Stevens & Shaigec, Edmonton), for the appellant.
James C. Robb, Q.C. (instructed by M/s Attorney General of Alberta, Edmonton), for the respondent.
James C. Martin (instructed by M/s Public Prosecution Service of Canada, Halifax), for the intervener the Attorney General of Canada.
Deborah Calderwood and Lisa Joyal (instructed by M/s Attorney General of Ontario, Toronto), for the intervener the Attorney General of Ontario.
Mark Erik Hecht, Nicole Merrick and Jonathan Rosenthal (instructed by M/s Beyond Borders Inc., Nepean), for the intervener Beyond Borders Inc.
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