Court of Appeal sets aside child-luring convictions, orders new trial

The Court of Appeal has ordered a new trial and set aside a man’s child-luring convictions because a Supreme Court of Canada decision changed the legal test between his trial and appeal.

Gary Allen was convicted in 2017 of four counts of child luring and one count of making sexually explicit images available to a child. Allen was the target of a police sting operation in which an undercover officer communicated via Craigslist with Allen while pretending to be a 14-year-old girl named Jenny.

Prior to the 2019 SCC case R. v. Morrison, in child-luring sting operations, the police would immediately assert the age of the fake child communicating with the target, says Mark Halfyard, who acted for Allen and is lead appellate counsel at Daniel Brown Law.

“And if the person continued to communicate in any way that engaged one of the enumerated offenses… that immediately would affix the law to say that the person knew they were communicating with someone under the age of 14,” Halfyard says.

Morrison changed the legal framework for the offence of child luring under s. 172.1(1) of the Criminal Code. In R. v. Allen, 2020 ONCA 664, the Court of Appeal found the trial judge erred in applying the pre-Morrison legal scheme to Allen’s charges. Allen argued the Crown had otherwise not established beyond a reasonable doubt that he knew or believed Jenny was under 16. The Crown argued the error was harmless and the “overwhelming evidence” against Allen should sustain the convictions, said the decision.

The 53-year-old Allen had posted to Craigslist Casual Encounters, requesting a sexual relationship with a “young woman… would prefer under a 110 lbs.” The undercover responded and over the next two months, Allen corresponded with the officer pretending to be Jenny. He sent Jenny links to porn websites, asked intimate sexual questions including whether she had had menstruated yet and made other comments about sexual acts he would like to perform with her. The two exchanged photos – Jenny’s being of a clothed 24-year-old police officer not revealing her face – and Allen offered to send a photo of his penis.

At trial, Allen said he had joined Craigslist because his co-workers were on it and he thought Jenny was really an adult male co-worker of his playing a joke on him. Superior Court Justice Guy Di Tomaso found this evidence “simply not credible,” said the decision.

Applying the pre-Morrison law, Di Tomaso found the Crown had proved beyond a reasonable doubt Allen believed Jenny was under 16 and that he had the “specific subjective intent to facilitate the commission of sexual offences against a child,” said the decision.

Prior to Morrison, caselaw provided two pathways to conviction for child luring. The Crown had to prove beyond a reasonable doubt that the accused believed the person was under 16 or had failed to take reasonable steps to ascertain their age. But in Morrison, the SCC found  s. 172.1(3) of the Criminal Code unjustifiably infringes s. 11(d) of the Charter – the right to be presumed innocent until proven guilty. Under s. 172.1(3), when the officer impersonating Jenny told Allen she was 14, proof of that communication to Allen was enough to establish that Allen believed Jenny was 14. The Court in Morrison found that “the mere fact that a representation of age was made to the accused does not lead inexorably to the conclusion that the accused believed that representation.”

The standard after Morrison is that the Crown must prove beyond a reasonable doubt that Allen either believed or was wilfully blind to whether Jenny was underage and “recklessness” as to Jenny’s age does not suffice, said the decision.   

“Seeing a risk and proceeding in the face of that risk that that no longer will ground a conviction,” says Halfyard.

The Court of Appeal found the trial judge had relied on Allen’s not taking reasonable steps to ascertain Jenny’s age, a “pathway to conviction Morrison foreclosed.”

The Crown requested the Court apply the curative proviso from s. 686(1) to sustain the conviction despite a legal error, arguing the error was harmless and evidence of Allen’s guilt was overwhelming. But to apply the proviso, the Court needed the Crown to show the evidence reached at least one of two thresholds from R. v. Van, 2009 SCC 22: Either the error in applying the pre-Morrison legal framework was “so harmless or minor that it could not have had any impact on the verdict” or “the case against the accused was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted.” But the Court found the case turned on Allen’s credibility. Allen testified he believed Jenny was really an adult and that the picture sent to him was of an adult, which turned out to be true. The Court decided a reasonable and properly instructed jury could possibly return a verdict other than guilt, so the proviso was unjustified.