COURT OF APPEAL FOR ONTARIO DATE: 20221128 DOCKET: C68846
Feldman, Roberts and Paciocco JJ.A.
BETWEEN
His Majesty the King Respondent
and
Brian Wheeler Appellant
Counsel: James Foy, for the appellant Molly Flanagan, for the respondent
Heard: April 20, 2022
On appeal from the conviction entered on January 13, 2020 by Justice S. Campbell of the Superior Court of Justice, sitting without a jury.
Feldman J.A.:
[1] The appellant appeals his conviction under s. 172.2(2) of the Criminal Code, R.S.C., 1985, c. C-46, of the offence of agreeing with a person (an undercover officer in this case), by means of telecommunication, to commit the offence of sexual interference under s. 151 of the Criminal Code with respect to another person who the appellant believed was under the age of 16 years.
[2] This was the appellant’s second trial. The appellant’s original conviction for this offence was overturned by this court in R. v. Wheeler, 2018 ONCA 1069 (“Wheeler #1”), because the trial judge failed to address the requirement to find that the appellant agreed with another person to commit sexual interference.
[3] The appellant raises two grounds of appeal. [1] The first ground relates to the actus reus and the second relates to the mens rea of the offence.
[4] The first ground is that in finding an agreement, the trial judge erred in law by failing to consider whether the sequence of events gave rise to an inference that was inconsistent with guilt and therefore raised a reasonable doubt: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
[5] The second ground relates to the proper characterization of the mens rea for the offence. Put succinctly, is the mens rea requirement simply that the accused must intend to enter into the agreement to commit sexual interference, or must the accused also intend, at the time of the agreement, to carry out the offence of sexual interference.
[6] For the reasons that follow, I would dismiss the appeal.
Reasons of the Trial Judge
[7] The second trial was heard, on consent, on a paper record taken from the first trial. Therefore, the trial judge’s descriptions of the evidence and the inferences he drew to make his findings were based on that record. The record included the conversations between the officer and the appellant, testimony from the officer, a videotaped statement the appellant made to the officer after arrest, and testimony from the appellant.
[8] Detective Constable Johnson was employed by the London Police Service in the Internet Child Exploitation Unit. In that capacity, she was on the website “motherless”, a site known for sexualized chat, on September 13, 2012 as “ontfunmom”. In the “hangout room” she received a message from the appellant, “Bluexx99”. Portraying herself as a single mother with three children, she asked him “so what’s your craziest fantasy?”, to which he responded “my wildest fantasy is having sex with a mother and daughter prob not at the same time”. [2] He also wrote: “never had a ffm 3 someeither…never worked out”. [3] The chat continued with the officer asking what age he would like the daughter to be to which he responded: “truth 10 and up…prob more 15-17”. The chat ended that day with the officer suggesting they use Yahoo and that he could add her as “memyself_kids”, which he did. Future conversations between them were conducted on Yahoo, with the accused as “wheels1973”.
[9] On September 20, 2012, they had a sexualized conversation including about his mother/daughter fantasy. The officer asked if he would really go through with it, and he answered “I would if the situation occurred”, adding “if everyine wascool” and “one”. The appellant asked the officer to describe her daughter, and asked if she was sexually active.
[10] In a conversation on September 25, 2012, the appellant said he wanted to feel his penis in her mouth and “mybi yr daughters”. [4] He later said that he would like the daughter to stroke him.
[11] On September 27, 2012, the officer asked if the accused had thought any more about their meeting. He responded that he wanted to meet. She said they could get together at her place. Various suggestions about where and when they would meet were discussed. He suggested that they should meet to see if they liked each other and they agreed to exchange photographs. The same day, as part of a conversation about the officer’s sexual relationship with her father, the appellant asked “is you are daughter ready”, [5] and stated that he “would like to taste her”. The officer said that would be ok, but that she would like to watch and that he would have to be gentle. He said of course and that he was not forceful. They then had more explicit discussion about what would occur.
[12] On September 28, 2012, and October 1, 2012, they discussed making arrangements to meet. On October 2, 2012, they confirmed their arrangements to meet including what the officer would be wearing, the type of vehicle the appellant would be driving, the time and place. They met that day at Tim Horton’s in south London. The appellant recognized the officer from her photo and attempted to hug her. She advised him that he was under arrest.
[13] The appellant gave the officer a videotaped statement on October 2, 2012. He also testified at the first trial. The videotaped statement, the audiotaped testimony and transcripts of both were reviewed by the trial judge at the second trial. In his statement to the officer, the appellant told her that he knew she was an officer the whole time, said that showing up for the meeting was stupid, and agreed that it did not make sense. He minimized his use of the “motherless” website and other pornographic websites. He repeatedly stated that the conversations were just fantasy. The trial judge found that the accused was deflecting the suggestions of impropriety by saying that it was just fantasy.
[14] At trial, the appellant’s position was that he was playing internet chicken with the officer, seeing how far the conversation would go. He said that normally a person would shut down the conversation when something inappropriate was said, and therefore when the officer kept it going, he knew she was not who she said she was. He also said he was lonely and that he found the conversation “kind of thrilling”. He denied that he would have gone through with anything had the opportunity presented itself.
[15] In terms of showing up for the meeting, he thought the chances of the officer showing up were low. The trial judge inferred from that that he had arranged meetings in the past where the other person had not shown up.
[16] He denied believing that the officer would facilitate him having sex with a child. He did not think it was going to happen, and he did not intend it to happen. He also insisted that had the officer suggested a meeting with her daughter accessible to him, he would have stopped. He said he had no interest in that activity.
[17] In assessing and analyzing the appellant’s credibility, the trial judge conducted a detailed analysis of his statement to the police, examination-in-chief and cross-examination. He found the appellant to be measured and careful, and that he understood the questions being asked of him and the circumstances he was in.
[18] In cross-examination, the appellant denied that he had been looking at pictures of young girls on the internet while chatting with the officer, although he had commented to her specifically that he did not see many pre-teens. When challenged on this, his explanation again was internet chicken. The trial judge found his response to be “a deflection and self-serving”.
[19] After reviewing the totality of the appellant’s evidence in detail, the trial judge found that the conversation where the appellant asked if the daughter was ready for sex and that he wanted to taste her and lick parts of her body, and that he would not be forceful and would allow the mother to watch, constituted “specific planning”. The trial judge rejected the appellant’s denial. He found that the denial was “not a true reflection of the totality of the conversation.”
[20] The trial judge then turned to the essential elements of the offence and whether the Crown had proved each element beyond a reasonable doubt.
[21] The relevant portion of s. 172.2(1) provides:
(1) Every person commits an offence who, by means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence …
(b) under s. 151 … with respect to another person who is, or who the accused believes is, under the age of 16 years …
[22] He observed that this section creates an inchoate offence, related to the immediately preceding offence under s. 172.1, child luring, where the communication is not with a third person but is directly with the child or the person the accused believes to be a child.
[23] In R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, the Supreme Court explained the inchoate offences at para. 25 as follows:
It will immediately be seen that s. 172.1(1)(c) creates an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey. [Emphasis in original.]
[24] The trial judge then reviewed a number of trial decisions that had considered the essential elements of s. 172.2 and concluded that the following are four essential elements:
- Did Mr. Wheeler intentionally and voluntarily communicate with Constable Johnson by means of telecommunications;
- During those communications, did Mr. Wheeler and Constable Johnson agree to commit the offence of sexual interference contrary to s. 151 of the Criminal Code;
- Did Mr. Wheeler specifically intend to make the agreement with Constable Johnson and intend that his communication in that regard be taken seriously; and
- Did Mr. Wheeler know or believe that the person who was the subject of the s. 151 offence was under 16 years of age.
[25] The trial judge had no trouble finding that the appellant intentionally communicated with the officer by means of telecommunications.
[26] With respect to the second element, whether the two reached an agreement to commit the offence of sexual interference contrary to s. 151, the appellant argued that the most the communications did was discuss the possibility of sexual contact with a 12-year-old girl, but there was no confirmed plan to do so; the only meeting that was planned was between two adults.
[27] Within the context of the second issue, the agreement, the trial judge also considered whether the two terms in the section, “agreement” and “arrangement” had different meanings, as the charge in this case particularized an “agreement”. This court when allowing the appeal from the first trial decision stated that an “agreement is the coming together of two minds, not the ‘objective’ by one party to ‘get another’s co-operation’”: see Wheeler #1, at para. 8.
[28] After reviewing the case law that discussed the indicia of an agreement, the trial judge first rejected the accused’s evidence that he was only participating in a fantasy and playing internet chicken. The trial judge focused on the fact that the appellant showed up for the meeting, got out of his car, approached the officer and attempted to hug her as indicating that the appellant believed that what was happening was real.
[29] The trial judge analyzed the appellant’s testimony in detail giving a number of reasons for rejecting it, finding it contrived, and concluding that the appellant had a complete understanding of his situation when he was interviewed by the officer following his arrest. The trial judge did not find his evidence credible or compelling. He noted that the appellant did not deny the specifics of his conversation with the officer or his meeting with her and his attempt to hug her, but disputed what meaning the trial judge could draw from that evidence.
[30] Turning to the indicia of an agreement, the trial judge found that although no specific date was set for the appellant to meet the daughter, they discussed that the mother would stay home from work one day and the daughter would stay home from school, i.e. the place, time of day and length of time for the sexual encounter was agreed. The appellant and the officer made a plan to meet to see if they got along and that plan was executed. No price was discussed.
[31] There were persistent, unequivocal communications between September 13, 2012, and October 2, 2012, about the appellant having sexual contact with the mother and the 12-year-old daughter.
[32] There was significant specificity about the sexual acts that would occur with the daughter. The appellant referred to fondling, oral sex, and vaginal intercourse.
[33] The appellant confirmed that he would be gentle with the daughter and would proceed only if she was willing.
[34] The officer gave the age and described her daughter. The two adults exchanged photographs of themselves.
[35] Both parties resided in London, Ontario. Travel was not necessary, although they discussed travelling to their meeting and that the appellant would come to the officer’s home.
[36] The appellant attended the only scheduled meeting they had.
[37] Based on these factors, the trial judge found that the evidence established an agreement as to 1) what was to occur, 2) where it was to occur, and 3) who was to be present. In the trial judge’s words:
I conclude that the communication between Constable Johnson and the accused established a sufficiently detailed agreement to make out this element of the offence. It was agreed that a 12-year-old girl could be made available for specific sexual contact. It was agreed that it would occur at her home. It was agreed that it would happen during the day and that she would be kept home from school for these purposes. It was agreed that her mother would be present.
[38] This type of agreement was what the legislature intended to capture in order to prevent harm before it occurs. The fact of a preliminary meeting did not detract from the conclusion that there was an agreement on terms to commit the offence of child sexual interference.
[39] The third element is the mens rea. The trial judge held that the Crown must prove two aspects of the appellant’s intention in order to prove mens rea: 1) that the appellant intended to make an agreement, and 2) that the appellant intended that his communication with the officer be taken seriously. On appeal, appellate Crown counsel acknowledged that the trial Crown had submitted this formulation.
[40] On the first aspect, the trial judge found that the appellant’s acts were purposeful and that he intended to make an agreement to commit the offence of sexual interference. The trial judge relied on the specificity of the plan as well as the fact that he had rejected any alternative explanation for the appellant’s conduct.
[41] For the second aspect, the same evidence supported the finding that the appellant intended to be taken seriously, including his own statement to the officer that he would go through with it “if everyone (sic) was cool”.
[42] The fourth element was the appellant’s knowledge that the sexual conduct would be with a child under 16. That was clearly established by the communications.
[43] Having found all four elements had been proven beyond a reasonable doubt, the trial judge found the appellant guilty.
Issues on Appeal
[44] The appellant initially raised three issues on appeal. The first issue related to the procedure that was agreed to by all parties to conduct the second trial entirely on a paper record from the first trial. Based on the Supreme Court of Canada’s decision in R. v. J.D., 2022 SCC 15, which was released five days after oral argument, this issue was then abandoned by the appellant.
[45] The other two issues relate to the trial judge’s finding of the actus reus, an agreement, and to the nature of the intention required to prove the mens rea. The first issue is whether the trial judge erred by failing to apply Villaroman when he concluded from the evidence that the appellant had agreed with the officer to commit the offence of sexual interference where there was a reasonable inference from the evidence that the appellant had rejected that agreement in favour of an agreement only to meet the mother. The second issue is whether the trial judge erred in law with respect to the requirements of the mens rea for the offence by failing to find that the appellant not only had to intend to agree to commit the underlying offence, but he also had to intend to actually commit the offence of sexual interference.
Analysis
(1) Did the trial judge err in law by failing to apply Villaroman when he found an agreement to commit the offence of sexual interference where there was a reasonable inference from the evidence that the appellant had rejected that agreement in favour of an agreement only to meet the mother?
[46] The appellant’s argument on this point can be succinctly put. He submits his conduct stopped short of an agreement to commit the offence of sexual interference with a child. The only agreement he made was to meet the mother at Tim Horton’s. When the officer suggested that she could call in sick so she would not get into trouble at work, the appellant suggested they meet at night. The officer then asked if that was to see if they liked each other, and he said yes that is what he meant. They then agreed to meet at lunch time.
[47] The appellant submits that the trial judge failed to properly apply the test in Villaroman for assessing circumstantial evidence: was there a reasonable inference from the evidence that was inconsistent with guilt? In this case he argues the trial judge failed to consider the reasonable possibility that the appellant’s response to the officer’s offer to call in sick so that they could meet with her daughter at her house, which was that they should meet for lunch first to see if they liked each other, amounted to him saying no. That response showed that he just wanted to meet with the mother without the daughter.
[48] In my view, the trial judge made no such error.
[49] First, following the agreement to meet at Tim Horton’s for lunch, the appellant continued to discuss the daughter and what he was going to do to her sexually and what he was going to teach her sexually. This evidence was consistent with the agreement found by the trial judge and inconsistent with the suggestion now made that the appellant was only interested in meeting the mother.
[50] Second, in the context of finding that the appellant and the officer had made an agreement for him to sexually interfere with her daughter, by agreeing on the acts to be performed, the place and the time period, the trial judge specifically addressed the fact that they first agreed to meet up together to see if they liked each other. He found that did not detract from their agreement. Indeed, this preliminary meeting was part of the agreement that had been reached.
[51] The agreement to meet for lunch was a step along the way in the agreement to commit sexual interference. As the appellant acknowledges, a conditional agreement is still an agreement.
[52] The trial judge specifically rejected as untrue the appellant’s evidence that this was all a fantasy that he was acting out and that he never intended it to be real. That position was belied when he showed up for the meeting and attempted to hug the officer.
[53] The trial judge’s rejection of the appellant’s evidence, and his finding that this was not a fantasy of the appellant’s, allowed him to reject as unreasonable, an interpretation of the evidence that the agreement to meet for lunch amounted to a rejection by the appellant of an agreement to commit the offence. These findings in turn allowed the trial judge to find that the words and deeds of the appellant amounted to an agreement to commit the offence. The trial judge made no Villaroman error.
[54] I would not give effect to this ground of appeal.
(2) Did the trial judge err in law with respect to the requirements for the mens rea for the offence by failing to find that the appellant not only had to intend to agree to commit the underlying offence, but he also had to intend to actually commit the offence of sexual interference?
(a) The appellant’s submissions
[55] The indictment was particularized to allege that the appellant “did agree with a person… to commit an offence under Section 151”. The appellant submits that an allegation contrary to s. 172.2 that a person commits an offence by agreeing with another person creates an offence of conspiracy, which requires an agreement to commit an offence with the intent to carry out the offence. If one party to a conspiracy does not intend to commit the agreed offence, there is no conspiracy. As a result, there can be no conspiracy where one party is a police officer: United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 88; R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669, at para. 35.
[56] Section 172.2(5) provides that it is not a defence that one of the participants is a police officer. The appellant submits that the effect of subsection (5) is that the police officer need not intend to carry out the offence but the accused must still have that intent. He argues that if the Crown is only required to prove that the accused intended to make an agreement, there would be no need for subsection (5).
[57] The appellant argues further that to interpret the offence as requiring only an intent to make an agreement but not an intent to actually carry out the offence of sexual interference would amount to criminalizing thought: Déry, at para. 47.
[58] The appellant relies on two decisions of appellate courts that considered the issue of the mens rea requirement of the section, R. v. Vander Leeuw, 2021 ABCA 61, and R. v. Chicoine, 2019 SKCA 104, that he says confirm that the offence is one of conspiracy.
(b) Discussion
[59] Section 172.2(1)(b) provides:
172.2 (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
(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years
[60] As mentioned above, the offence in this case was particularized to allege that the appellant “did agree”.
[61] On appeal, both sides agree that the trial judge erred in law by adding the second component to the test for mens rea: that the appellant intended to be taken seriously by the officer. However, that error by the trial judge only added an unnecessary component for the Crown to prove. The issue between the parties on the test for mens rea is whether the Crown had to prove only that the appellant intended to make an agreement to commit the offence of sexual interference, or did it have to prove, in addition, that at the time the agreement was made the appellant intended to carry out the underlying offence. I am persuaded that the former is the test for mens rea, not the latter.
[62] I reject the appellant’s argument regarding the purpose of subsection (5). Subsection (5) states:
(5) It is not a defence …
(a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer; or
(b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer, the person [under the requisite age] did not exist. [Emphasis added].
[63] Subsection (5) clearly applies both where the accused agreed or made an arrangement, which refutes the argument that it contemplates a conspiracy because of the word “agreed”. In addition, the subsection does not refer to the mens rea for the offence, but merely removes any argument that where the person the accused agrees with is a police officer, the accused has a defence to the charge.
[64] I now turn to the appellant’s submission regarding the Vander Leeuw and Chicoine decisions. In Vander Leeuw, it was when discussing the actus reus of the offence and the requirement for an agreement or arrangement, that the Court states at para. 34 that the agreement “should be regarded as a specialized type of conspiracy”, quoting from Chicoine, at para. 53. The specialized aspect was because it is an agreement to commit one of the listed offences. However, the Court conducts a separate discussion of the mens rea requirement where the concept of a conspiracy is not referred to. It is clear, in my view, that the Court was not adopting the mens rea requirement for a conspiracy when it made this comment and was only commenting on the actus reus.
[65] In Vander Leeuw, the accused’s position was that his intention was only to investigate child sexual abuse on the internet, and that he had no intention to follow through on the agreement that was made. He argued, as the appellant does in this case, that the mens rea for the offence requires an intent to commit the sexual offence against the child at the time he made the agreement, and he did not have that intent.
[66] The Alberta Court of Appeal rejected this submission. It stated at para. 52:
If the accused has an “intention to make an agreement for the specific purpose of committing an offence against a child” then the offence under s. 172.2 is made out. No subsequent act in furtherance of the agreement is required. If the accused’s agreement is genuine, it is not necessary that the crime be committed, and it is no defence that the accused later decides not to follow through on his agreement. In that sense, there is no separate requirement of an “intent to commit a sexual offence against a child”, beyond what implicitly underlies “an intent to enter into an agreement specifically to commit a sexual offence against a child”.
[67] The Court went on to consider the question of feigned agreements, observing that both parties need not be genuine in their agreement and that an officer will be feigning agreement. The Court left it open for another day whether the offence will be made out if both parties are feigning agreement: see Vander Leeuw, at para. 53. However, I would not approach the analysis in that way.
[68] With respect to the actus reus, s. 172.2 captures the coming together of two minds to commit an offence enumerated in s. 172.2(1): see Wheeler #1, at para. 8. The act or actus reus of agreeing under s. 172.2 is satisfied where those persons through telecommunication, establish or settle upon terms to commit an enumerated offence. This inquiry is objective and will involve determining whether the telecommunications themselves objectively disclose an agreement to commit an offence. At this stage, the subjective intention of either party is irrelevant – as a result, whether either party is feigning is also irrelevant.
[69] Next, it is important to remember that whether a party has the mens rea to commit the offence is only applicable to the accused, not the officer. As I discuss below, the intent to carry out the agreement is not the mens rea for the offence and is irrelevant in the context of this offence. That is why it is also misleading to address whether either party is feigning an intent to carry out the offence under the mens rea analysis.
[70] An agreement where neither side actually intended to carry out the underlying offence is what the appellant submits occurred here. He was just playing internet chicken. Although that was rejected by the trial judge, he submits that in order to convict him the trial judge was required to find that at the time he made the agreement to sexually interfere with the officer’s daughter, he actually intended to do it.
[71] As indicated, I reject that submission. An analogy can be drawn to the related offence of child luring contrary to s. 172.1. The Supreme Court of Canada in Legare has explained that for that offence, there is no requirement that the perpetrator actually intends to meet the victim to commit any of the sexual offences. The offence is an inchoate offence, where Parliament’s intent is to prevent the offence before it happens by criminalizing the telecommunications with the child if they are for the purpose of facilitating one of the sexual offences, regardless of whether the accused intends to follow through. The Court explained at paras. 25 and 28:
It will immediately be seen that s. 172.1(1)(c) creates an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey.
Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, “facilitating” includes helping to bring about and making easier or more probable — for example, by “luring” or “grooming” young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality. [Emphasis in original.]
[72] In R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 32, this court commented that an offence under s. 172.1 can be proven “regardless of whether the designated crime is ever committed, attempted or is even factually possible.”
[73] Section 172.2 was added to the Code to fill a factual methodological gap where arrangements are made over the internet to sexually abuse a child not with the child directly but by two adults, one of whom has access to a child: House of Commons Debates, No. 021 (27 September 2011) at p. 1542 (Hon. Julian Fantino).
[74] I agree with the Alberta Court of Appeal in Vander Leeuw that while the decision in Legare is not directly applicable, the analysis informs the analysis of the same issue for the companion provision, s. 172.2. There is no reason to interpret the mens rea for this offence any differently than the mens rea under s. 172.1. To the contrary, the two offences have the same purpose – to protect children from internet predators.
[75] One may argue that if an accused makes an agreement with another person to sexually abuse a child that the other person has access to, but has no intention to carry out the agreement, then no child is at risk, and therefore no child requires protection from any criminal conduct. It is a harmless agreement. This is akin to the appellant’s argument, referred to above, that it amounts to criminalizing thought.
[76] I wholly reject that argument for two reasons. First, it ignores the terrible reality that if there is a child, the child is in danger from both adults. I agree with Crown counsel that where there is an agreement to commit a sexual offence on a child, even if the accused without the child does not intend to go any further, the person with the child, having just entered into an agreement to make the child available for sexual abuse, could begin to groom the child for the sexual encounter. That is why all that is necessary for the offence to be complete is the agreement and the intent by the accused to enter into it. Such an agreement will put the child in potential danger from the other person.
[77] The second reason is that by actually agreeing on terms to commit a sexual offence on a child, the accused has done more than just think about committing that offence. He has intentionally taken the concrete step of agreeing or arranging with another person to do so. The potential danger for a child from the accused has been actualized. That reflects Parliament’s intention to create a preparatory crime for the protection of children.
[78] The appellant’s argument that without his interpretation of the mens rea requirement an agreement to commit one of the listed offences by an innocent person such as by a Good Samaritan could be criminalized, need not be addressed on the facts of this case.
[79] The Crown adds that the appellant’s interpretation of the mens rea requirement would undermine the gap-filling function of s. 172.2 because the same elements are already present in offences such as an attempt to commit child sexual exploitation, a conspiracy or counselling.
[80] In my view there is no overlap between the offence under s. 172.2 and an attempt to commit one of the underlying offences. Parliament deliberately made both the mens rea and the actus reus of the offence under s. 172.2 different from those elements of an attempt to commit the underlying sexual offences against children in order to criminalize conduct more preparatory than an attempt. As discussed, the mens rea is the intent to agree to commit one of the underlying offences. The actus reus is the agreement or arrangement to commit one of the underlying offences. By defining the actus reus specifically, there can be no legal issue whether the actions of the accused went beyond mere preparation (s. 24 of the Criminal Code).
[81] To be perfectly clear, if an accused testifies that yes, he went on the internet and made an agreement with a person who had a child that the three of them would meet so that he could have a sexual encounter with the child, but he never at any time meant to actually meet the child, the offence would be admitted. The actus reus is the agreement to commit an enumerated offence; the mens rea is the accused’s intent to enter into the agreement to commit an enumerated offence. Under s. 172.2, non-criminal talk on the internet about sex with a child becomes an offence when an agreement to do it is made.
[82] I would add that because the mens rea for the agreement is an intent to agree, a trier of fact may find it useful to ask whether the evidence demonstrates that the accused intended the other party to take him seriously. That could assist the court in assessing the accused’s intention to make an agreement. But as the Alberta Court of Appeal in Vander Leeuw stated and both parties here concede, it is not a separate component of the mens rea that must be proved by the Crown.
Conclusion
[83] I would dismiss the appeal, with thanks to both counsel for their very able arguments.
Released: November 28, 2022 “K.F.” “K. Feldman J.A.” “I agree. L.B. Roberts J.A.” “I agree. David M. Paciocco J.A.”
[1] The appellant abandoned a third ground of appeal following the oral hearing and the release of the decision in R. v. J.D., 2022 SCC 15, by the Supreme Court of Canada. [2] The reasons as typed contain some minor discrepancies from the communications. The communications read “so what is your craziest fantasy” and “my wildest is having sex with a mother and daughter prob not atthe same time”. [3] The communications read “never had a ffm three someeither”. [4] The communications read “mybe yr daugthers”. [5] The communications read “is yr daughter ready”.
