The validity of a law against luring a child into sexual activity via the internet and its one-year mandatory minimum sentence will now be decided by Canada's top court.
In a decision Thursday, the Supreme Court of Canada agreed to hear appeals of a lower court ruling that struck down part of the law and the minimum punishment it calls for as unconstitutional.
The earlier ruling was the latest in a string of court decisions that have struck down tough-on-crime provisions enacted by the former Conservative government under Stephen Harper.
The current case involves Douglas Morrison, a Toronto-area man in his late 60s who posted an ad on Craigslist in 2013: "Daddy looking for his little girl to meet and have some fun with him."
Morrison, a golf-course groundskeeper in a long-term common-law relationship, ended up having sexually explicit conversations by computer with "Mia," who was in fact a police officer claiming to be a 14-year-old girl, according to court records. He suggested at one point they meet up, but that didn't happen.
Police charged him with child luring via computer.
At trial, Morrison said he believed Mia was an adult woman and that they were engaged in role-playing. Craigslist rules required users to be 18 or older. He also attacked the constitutionality of the law for presuming an accused knows a victim is underage — unless they can show they took reasonable steps to find out otherwise.
Ontario court judge George Gage ruled part of the law unconstitutional — for imposing a presumption of guilt — but upheld the requirement for an accused to try to check the age of the other person.
Gage convicted Morrison in January 2015, saying there was no need to presume him guilty. Instead, he found Morrison had failed to take steps to verify how old Mia actually was.
The judge then refused to sentence the man of otherwise unblemished character to the one-year minimum on the grounds that it would amount to cruel and unusual punishment. Gage imposed a four-month term and probation as more appropriate in the circumstances.
Morrison and the prosecution both appealed. He argued the verdict was unreasonable given his position on the age-verification requirement of the law. The Crown argued the law was designed to protect vulnerable children and its minimum sentence was constitutional. It wanted an even stiffer penalty.
In July, Ontario's top court sided with Gage, saying that forcing courts to impose at least a 12-month jail term would be abhorrent and intolerable to Canadians in some cases. Doing so would result in sentences "grossly disproportionate for some individuals," the Appeal Court said.
"The disparity between the one-year mandatory minimum and what would otherwise be a fit and appropriate sentence for Morrison is sufficient to meet the high bar of gross disproportionality."
The court also found the offence itself to be constitutional, despite agreeing the section that presumes an accused knew a victim was underage also violated the Constitution.
The Supreme Court will likely hear the case — both the government and Morrison are appealing — late next year.