The Supreme Court of Canada today upheld the Alberta Court of Appeal, which had convicted a person of Internet luring of an underage person — though the person in question was a police officer posing as a 13-year-old: R. v. Levigne 2010 SCC 25
The Criminal Code s.172.1 presumes that a person being lured is under 18 unless the accused person has reason to believe that the target person is at least 18, and the accused has the burden of taking 'reasonable steps' to find out how old the person is.
In this case, the target's profile in the chat room said 18, but in early chat he said he was only 13. The accused took no other steps to determine the real age — and how persuasive would they have been in the face of a direct statement of age?
But for other cases: what might constitute reasonable steps to determine someone's age online? This question comes up not only to avoid criminal charges, of course, but also to demonstrate age of consent to contracts, possibly to order certain products online like tobacco or alcohol, or to consent to the collection of personal information.
What is done under the Child Online Protection of Privacy Act in the US, where personal information may not be collected from people under 13 without parental consent?
Would it make a difference if one was taking these reasonable steps in a criminal or civil context? The Criminal Code does not impose liability if one has taken reasonable steps, whatever they are (so long as one can claim a reasonable belief as a result…). I would not think that reasonable steps alone would be good enough to make a civil contract enforceable against a minor, or to excuse the sale of 'adult' goods to such a person.
Do you agree? What should your clients be doing in such circumstances? (I do not suggest that your clients come to you for advice about how to lure under-age people for sexual purposes …but for the more general question…)
Two points come to mind. First is the case at hand. Mens rea and actus reus were present. The intent and act was done by the accused. What has many forum commentors up in arms is that there was no real victim. Yet, as the SCC determined, the crime was still commited. I compare it to driving erratically or walking down the sidewalk blindfolded, swinging a baseball bat. There may be no victim, but there is certainly intent to be reckless and an act that puts others in danger. My second thought on this is trying to find an answer to the John's question. I have known in my youth, people who would go online, use their parent's identities and/or credit cards, and then purchase products they would not normally have access to. The websites/merchants provided steps to protect their liability, but what is "reasonable" as stated above? If all the "reasonable" steps were taken by the website/merchant, then where does liabiltiy fall? Is it possible for a minor to then be responsible for their actions, as hinted at in the Youth Criminal Justice Act? I wish I knew the answer.