Reasonable steps requirement weakens presumption of innocence

A dissenting Supreme Court (SCC) judge was right to declare unconstitutional a section of the internet child-luring law that essentially obliges the accused to prove their innocence, says Toronto criminal lawyer Melody Izadi.

In her dissenting reasons, Justice Rosalie Abella held that s. 172.1(4) of the Criminal Code breaches the Charter by allowing defendants to be convicted for failing to take reasonable steps to ensure the person they are communicating with is of legal age.

“I agree that the reasonable steps requirement infringes the presumption of innocence,” Izadi, an associate with Caramanna, Friedberg LLP tells AdvocateDaily.com. “It puts a burden on the accused to essentially prove they are not guilty, which is the antithesis to what our Constitution holds.”

The defendant in the SCC case posted an ad online, saying: “Daddy looking for his little girl.” A police officer pretending to be a 14-year-old girl named “Mia” responded. The defendant and Mia had sexually charged internet conversations for more than two months.

The man claimed he believed Mia was really a woman posing as a girl. But a judge convicted him of child luring because he failed to take reasonable steps to confirm that was true.

“What Abella says — and I agree with — is that, in effect, it puts the accused in a position where they can’t rely on their own innocent belief in that person’s age if reasonable steps aren’t taken,” Izadi says.

Abella wrote that defendants, by the very act of taking reasonable steps to ascertain the other party’s age, risk further incriminating themselves.

This makes sense, Izadi says. “You’re creating a larger body of evidence. You’re creating more dialogue.”

This is especially true because many internet luring cases are sting operations in which police officers tailor their communications to catch apparent predators, she says.

In this case, the police officer messaged the defendant outside high school hours to bolster his belief that Mia was underage, court documents show.

Justice Michael Moldaver, writing for the majority, disagreed with Abella. He said s. 172.1(4) is constitutional because, regardless of whether the defendant took reasonable steps to ascertain the victim’s age, the Crown still has to prove he believed she was underage.

Moldaver ordered a new trial on the basis that the trial judge wrongly convicted the defendant for failing to take those reasonable steps. For the judge to properly enter a conviction, he should have also been satisfied beyond a reasonable doubt that the accused believed Mia was underage, Moldaver wrote.

The court unanimously declared another part of the law, s. 172.1(3), unconstitutional for offending the presumption of innocence. The section states that a defendant is presumed to believe — absent evidence to the contrary — that the person they were communicating with was underage if that’s how they presented themselves.

Izadi agrees with this ruling. It is easy to misrepresent oneself on the internet, so the fact that someone says they are underage doesn’t necessarily make it so, she says.

“What the majority is saying is that in order for that subsection to stand, and be sound, it would have to be the only conclusion that can be drawn, and that’s just not the case,” Izadi says. “And because it’s not the case, then it directly infringes on the presumption of innocence of that person.”

The majority declined to address the constitutionality of the mandatory minimum sentence of one-year for defendants convicted by way of indictment. Moldaver said that in view of the lower courts’ errors, it would be unwise to rule on the mandatory minimum issue, which should be remitted to a new trial judge.

Justice Andromache Karakatsanis and Abella disagreed, however, declaring that the mandatory minimum is cruel and unusual punishment and therefore unconstitutional.

“I do agree with that,” Izadi says. “Mandatory minimum sentences can be very problematic. I think sentencing should be relative to the person’s background and any other relevant facts,” she says.

Izadi believes the constitutionality of the mandatory minimum will likely make its way back to the Supreme Court.