Child Pornography & Luring

According to s. 172.1 of the Criminal Code, child luring occurs when a person:

• Communicates using a computer or other form of electronic communication;
• With someone the person knows or believes to be under the legal age;
• For the purpose of facilitating the commission of a specified offence.

Some of the specified offences include sexual offences such sexual exploitation, sexual interference, making, accessing, or distributing child pornography, and prostitution of a person under 18 years old, as well as the abduction of a person under sixteen or fourteen years of age.

Generally, police cannot provide someone an opportunity to commit a crime if they do not suspect that the person is already engaged in crime. It is entrapment for police to provide a person with an opportunity to commit an offence without a reasonable suspicion that the person is engaged in illegal activity unless the police are doing so as part of a ‘bona fide inquiry’. It is a bona fide inquiry if police: 

• Reasonably suspect crime is occurring in a precise area (for example, a specific street corner or section of a website); AND
• Have a genuine purpose of investigating and repressing crime

Police are never permitted to induce an offence.

The answer will depend on the specific tactics used by the police in your case. It is a common technique for police investigating child sexual offences, to post ads for sexual services on websites where they suspect commercial sexual activity is occurring. When individuals respond to the ads, an undercover officer posing as an underage girl or boy will offer to provide sexual services. The Supreme Court of Canada recently found that an investigation that used this technique and ultimately led to the arrest of 104 men, was not entrapment. You will need to consult with an experienced criminal defence lawyer to determine if the police investigation that led to your arrest crossed the line into entrapment.

Because child pornography investigations usually involve search warrants for the accused person’s home and electronic devices, a common defence is to challenge the validity of the search warrant or the way the police conducted the search. If your lawyer can establish that the warrant was not valid or that your Charter rights were infringed during the search, you can apply to have the evidence obtained during the search excluded from your trial.

Your lawyer may also be able to argue that you did not know you had child porn images on your computer, because, for example, you were not the only person with physical access to the computer, your computer was operating on an unsecured or shared network, or your computer was infected with malware. It may also be possible for your lawyer to argue that you believed the individual depicted was over the 18 or that the images had a legitimate purpose related to science, medicine, education or art. It is best to consult with an experienced lawyer to determine which defences may be available to you.