Supreme Court loses its balance

A Supreme Court of Canada ruling today (text here) expanding the definition of Internet luring will, it is claimed, protect more children from Internet predators.

If that were the only effect of the judgement, we could all rest easy and congratulate the learned judges on a job well done. But this is what Mark Hecht, of Beyond Borders, a group that lobbies against child exploitation, has to say, and it makes me very uneasy indeed:

"There's been a very clear message that in fact this is something that is an offence, and as a result, I would think that there will now be more arrests and prosecutions of adults committing these kind of crimes," he told CTV News Channel.

"If you're an adult and if you're having conversations with a child on the Internet, be warned because even if your conversations aren't sexual and even if your conversations are not for the purpose of meeting a child and committing an offence against a child, what you're doing is potentially a crime," he said. [emphasis added]

In case anyone thinks that Hecht is misrepresenting the contents of the judgement, here are three salient extracts from the latter:

Section 172.1(1)(c) creates an inchoate offence consisting 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 with respect to the underage person. The focus of s. 172.1 is on the accused’s intention at the time of communication by computer and that intention must be determined subjectively. While sexually explicit comments may suffice to establish the criminal purpose of the accused, the content of the communication is not necessarily determinative. The offender need not meet or intend to meet the victim with a view to committing any of the specified secondary offences. “Facilitating”, in this context, includes helping to bring about and making easier or more probable.

[25] 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.

[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. [emphases added]

Now consider what the judges are saying here. A conversation with a child need not be sexual in nature. No intent to meet the child for the purposes of committing a sexual crime is required for a guilty verdict--because the word "facilitating" simply means (so they state) creating such a possibility, regardless of intent.

Imagine this scenario, one of many possible ones. You enter a chatroom where the topic is current movies. You discover that "shy14" really is fourteen years of age, by asking her outright. You proceed to have a good discussion about the merits of today's horror films. Just out of interest, you ask her where she lives.

Based upon today's SCC ruling, you are probably guilty of a sex crime against a minor.

Am I the only one who is concerned about this almost infinite scope-widening by the Court, and its potential misuse and abuse by over-zealous police and prosecutors?