Court of Appeal for Ontario

Date: 2018-12-21 Docket: C64753

Judges: Juriansz, Benotto and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Brian Wheeler Appellant

Counsel

Frank Addario and James Foy, for the appellant

Molly Flanagan, for the respondent

Heard

December 18, 2018

On Appeal

On appeal from the conviction entered on December 20, 2016 by Justice Peter B. Hockin of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals from his conviction under s. 172.2(2) of the Criminal Code and challenges the constitutionality of the mandatory minimum sentence.

[2] The appellant engaged in a series of online conversations with a police officer who portrayed herself as a mother of two daughters, aged 12 and 5. She and the appellant exchanged sexually explicit talk, some of which involved the fictional 12-year old daughter. They eventually met at Tim Horton's where the appellant was arrested.

[3] The appellant was charged with an offence under 172.2(2) of the Criminal Code which provides:

(1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence [listed in s. 151 – here sexual interference with a child.]

[4] Before trial, the Crown amended the original indictment to particularize the charge so that it alleged the appellant "did agree" to commit the offence. The amendment withdrew the allegation that he made "an arrangement" to commit the offence. The issue before the court was whether the appellant agreed to commit sexual interference of a child. The fact of an agreement was therefore an essential element of the offence to be proved beyond a reasonable doubt.

[5] The evidence included transcripts of graphic sexual talk and references to sexual activity between the appellant, the officer and her fictional daughter.

[6] The appellant alleged that he did not make an agreement to have sex with the daughter and in any event, did not have the intent to go through with the matters discussed. He claimed it was all a fantasy and a game of "internet chicken". The Crown alleged that the conversations disclosed both the agreement to have sex with the child and the intention to make the agreement.

[7] It appears that the trial judge did not turn his mind to the elements of an agreement. At page 14 when discussing an agreement the trial judge said:

Cooperation or consent is the product of "agree' or an "agreement in the section on a plain meaning of the words against the background of the purpose of the section, I interpret to mean any internet exchange, where the objective is to get another's cooperation or consent to the commission of a designated offence.

[8] An agreement is the coming together of two minds, not the "objective" by one party to "get another's cooperation".

[9] In finding the appellant guilty, the trial judge did not make a finding that there was an agreement. Rather, he said page 17:

I accept that this [i.e. game of internet chicken] was [the] case at the beginning of his relationship with [the officer], but it changed quickly. On September 20, 2012, there were specific inquiries of [the officer] with respect to the child and her appearance. He understood at this point that his communicant lived in London. On September 25, 2012, there was explicit discussion of sexual activity at the communicant's home, which could involve her daughter. He asked if her daughter was ready for sex. On September 27, 2012, there was an exchange of pictures. That was a real event, not a fantasy. He asked again if the woman's daughter was ready for sex. This was followed by a description of what this would involve. There was a discussion of a date to meet. And again, on September 28, 2012, and finally, On October 1, 2012, when it was agreed to meet the following day.

[10] The Crown concedes that the trial judge did not expressly make a finding that there was an agreement to have sexual activity with the daughter. We are not persuaded by the Crown's submission that he did so implicitly. Simply put, there was no finding of an agreement by the appellant to commit sexual interference. This was an essential element of the actus reus of the offence.

[11] In light of this error, it is not necessary to consider the issues raised by the appellant with respect to mens rea and the sentence.

[12] The appeal is allowed and a new trial is ordered.

"R.G. Juriansz J.A."

"M.L. Benotto J.A."

"G.T. Trotter J.A."