In R. v. Woodward, the defendant challenged both his conviction and length of sentence in relation to the offence of luring by means of a computer system under (as it was then) s.172.1(1) of the Criminal Code. Writing for the court, Moldaver J.A., dismissed the appeal on both grounds and provided guidance as to the meaning of “computer system” under s.342.1(2) of the Code and the sentencing of offenders who engaged in the luring of children over the internet.
The appellant argued that text messaging via cell phone did not fall within the actus reus required under s. 172.1(1). Under that section a person must communicate with another by means of a computer system within the meaning of s. 342.1(2) of the Code. The court rejected the appellant’s argument, holding that text messaging required a “logic” and “control” function preformed by telephone networks to deliver messages between phones. This process amounted to a computer system. Supporting this finding, the court pointed out that Parliament has made two attempts to change the highly technical definition of computer system in the Code.
The court also rejected the appellant’s argument that his sentence was in excess of the usual range of those convicted of similar offences. Moldaver J.A., noted that the decision of Rosenburg J.A. in R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (C.A.) has been incorrectly interpreted as setting the range of sentencing of 12 months to 2 years for offenders who engage in online luring. Instead, the court determined that internet luring was a pervasive social problem warranting stiffer sentences in the range of 3 to 5 years in order to meet the goals of deterrence, denunciation and separation of society. Moldaver J.A. then held that when considering a sentence in this type of case, “ the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it.”
September 26, 2011
Link to Decision
Heather Palin
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