Her Majesty the Queen v. Douglas Morrison
(Ont.) (Criminal) (By Leave)
Constitutional law - Criminal law, Right to life, liberty and security of person, Canadian charter (Criminal) - Charter of Rights – Constitutional law – Criminal law – Right to life, liberty and security of the person – Right to a fair hearing – Cruel and unusual punishment – Sentencing – Child luring – Whether the Court of Appeal erred in finding that the presumption of belief in age in s. 172.1(3) of the Criminal Code, R.S.C. c. C-46 infringes the right to be presumed innocent under s. 11(d) of the Charter – In the alternative, if there is a s.11(d) Charter infringement, did the Court of Appeal err in finding that it is not justified under s. 1 of the Charter – Whether the Court of Appeal erred in declaring the mandatory minimum sentence of one year under s. 172.1 (2)(a) of the Criminal Code to be of no force or effect as infringing the right not to be subjected to cruel and unusual punishment under s. 12 of the Charter – Whether the Court of Appeal erred in finding that the reasonable steps requirement in s. 172.1(4) of the Criminal Code did not infringe the right to life, liberty and security of the person under s. 7 of the Charter – Charter of Rights, ss. 1, 7, 11(d), 12; Constitution Act, 1982, s. 52(1).
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The respondent 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. Unbeknownst to Morrison, “Mia” was in fact a police officer. The respondent testified that he thought he was participating in a sexual role-playing exchange with an adult female.
The trial judge held that subsection 172.1(3) of the Criminal Code, R.S.C. c. C-46 – the presumption of belief – infringed the respondent’s s. 11(d) of the Charter right. However, the trial judge held that the reasonable steps requirement in subsection 172.1 (4) of the Code is constitutionally valid. The trial judge concluded, however, that the Crown had proven the elements of the child luring offence even without the benefit of the presumption of belief. The trial judge was satisfied beyond a reasonable doubt that the respondent did not take reasonable steps to ascertain the age of the person he was communicating with over the internet as required by s. 172 (4) of the Code. The respondent was convicted of child luring by means of a computer contrary to s. 172.1(1)(b) of the Criminal Code. The designated offence referred to in s. 172.1(1)(b) that formed the basis of the respondent’s conviction was invitation to sexual touching at a person under 16 years of age, contrary to s. 152 of the Code. The sentencing judge went on to hold that the mandatory minimum sentence in subsection s. 172.1(2) of the Code was grossly disproportionate, contrary to s. 12 of the Charter. Refusing to apply it, he sentenced the respondent to 75 days’ intermittent incarceration (after credit for pre-sentence custody was deducted) and made a number of ancillary orders. The Court of Appeal dismissed both the applicant’s and the respondent’s appeals. The Court of Appeal agreed with the trial judge’s conclusions regarding the constitutionality of each of the Code provisions. The Court of Appeal held that 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.
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