The Crown appealed an acquittal for an offence under s. 172.2(1)(b) of the Criminal Code, which criminalizes agreeing or arranging to commit enumerated sexual offences against a person believed to be under a certain age.
The respondent had communicated with an FBI agent posing as a mother of young girls, discussing sexual acts and travel arrangements.
The trial judge acquitted, finding the Crown failed to prove the respondent intended to follow through with the plan, characterizing the communications as fantasy role-play.
The Court of Appeal found the trial judge erred in interpreting the mens rea, clarifying that the mens rea is the intent to agree, not the intent to carry out the underlying offence.
The court further clarified that the actus reus requires a "true consensus" or genuine agreement on the part of the accused, even if the other party is an undercover officer.
As the trial judge's reasons were unclear on whether the actus reus was proven under the correct legal test, the appeal was allowed, and a new trial was ordered on the relevant count.
