International Law

R. v. Legare

The Alberta Court of Appeal considers (pdf file) what Parliament accomplished in enacting s. 172.1(1)(c) of the Criminal Code.

The section is designated as “luring a child,” but “luring” is not a word used in the actual wording of the section. Instead, the offence consists of “facilitating” (via some communication) a listed offence with a child. The trial judge placed undue emphasis on “luring,” and was reversed on appeal:

The mens rea for s.172.1(1)(c) relates to the terms ?communicates? and ?facilitating?. Read in conjunction with the provision as a whole, these connote that the accused should be shown to have communicated by means of a computer system in a manner wherein the accused?s purpose was to facilitate a designated offence. In my view, even if the accused person is not shown to have an actual present intention to meet in order to personally commit an offence under s. 151 or 152 with the recipient child, a ?purpose of facilitating? however far off or unlikely, would be sufficient. Moving a child from one place to another is not essential.

I’m not sure what is meant by the qualification of a present intent. As opposed to a future intent? A latent intent? An intent to attempt? “S.172.1(1)(c) is aimed at prepatory conduct that would not otherwise qualify as an attempt”:

The question for the trial judge was whether the respondent?s communication by means of a computer system made it easier for the commission of one of the enumerated offences in s.172.1(1)(c) and whether the respondent?s mens rea conformed to that situation. As to mens rea, even if the respondent did not presently intend to meet and commit an offence under s. 151 or 152 involving the specific complainant, he could be convicted if by his communication by means of the computer system he facilitated an offence under s. 151 or s. 152 as to her.

The trial judge conceived the offence as one where the offender ?always has it in the back of his mind that he may attempt to commit one of the secondary enumerated offences, but after the opportunity presents itself?. Proof of a present intent to commit one of the secondary offences if the opportunity presents itself is sufficient for s. 172.1(1)(c) of the Code but it is not ?always? necessary.

I don’t think there’s any denying the accused here was up to no good. But this strikes me as a very fine line. How does one intend to facilitate the commission of an offence that one has no intention of committing? Isn’t the trial judge right that such an intention would have to always be in the back of the accused’s mind (as it seems it was here)? “Prepatory conduct that would not otherwise qualify as an attempt” sounds like an attempt to attempt, which is an awkward concept.

Full post as published by Criminal Review on April 14, 2008 (boomark / email).