Modèle:SentencingBrief PART V - Luring

PART VI: OBJECTIVES OF SENTENCING IN THIS CASE(e)

The purpose behind the criminalization of the conduct captured by the offence was described in R v Legare, where Justice [name] stated the following:

[28] 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.

[29] I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics.

[30] As Hill J. explained in R. v. Pengelley, [2009] O.J. No. 1682 (QL) (S.C.J.), at para. 96:

... computer communications may serve to sexualize 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.

[31] 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.

[32] The italicized 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).