The Canadian offence of luring has been analysed in R v Bertrand Marchand, 2023 SCC 26 (3 November 2023). See s 172.1 of the Criminal Code, reproduced at [9] of the joint judgment. Additionally, the mandatory minium sentences which the legislature had applied to it were held to be unconstitutional as they were in breach of s 12 of the Canadian Charter of Rights and Freedoms.
In deciding the constitutional point, the Court applied the method it used in its decision in R v Hills, 2023 SCC 2 (noted here on 31 January 2023). The essential fault in the legislation was that it applied minimum sentences to conduct that was only remotely related to the heart of the offence [108] so that when reasonably foreseeable scenarios that would come within the defintion of the offence were considered the result would be sentences that were so excessive as to outrage standards of decency [109].
In essence, the luring offences defined in s 172 involve using telecommunication to communicate with persons who are or who are believed to be under ages specified in three categories, for the purpose of facilitating the commission of offences with respect to those people as specified for each age category. These are what can be called grooming offences although without any need for sustained contact [13].
Comparable offences are in s 131AB of the Crimes Act 1961 (NZ), and they carry a maximum, but not a minimum, sentence.
The discussion in Bertrand Marchand of the wrongfulness of luring ([34]ff) will be relevant for sentencing purposes in similar jurisdictions. Both gravity of the offending and the moral blameworthiness of the offender - an assessment of the personal aggravating and mitigating features - are relevant ([71]ff). In the absence of direct proof of actual harm, harm can be inferred [76]. Grooming is one aggravating factor, and others (listed non-exhaustively) are the character of the communication [77], deceit [80], abuse of a position or relationship of trust [82], and the age of the victim [85]. Since luring will often be accompanied by other offending, sentencing will have to address whether to impose concurrent or cumulative sentences, and the totality principle ([89]ff).
