Court of Appeal for Ontario

Date: 2024-04-18 Docket: COA-22-CR-0454

Doherty, Trotter and Sossin JJ.A.

Between: His Majesty the King, Appellant and Mark Stordy, Respondent

Counsel: Jason Wakely and Alysa Holmes, for the appellant Ryan Durran and James Coulter, for the respondent

Heard: November 20, 2023

On appeal from the acquittal entered on November 22, 2022 by Justice David Berg of the Ontario Court of Justice, with reasons reported at 2022 ONCJ 539.

Doherty and Trotter JJ.A.:

A. Introduction

[1] This appeal concerns the fault requirements of s. 172.2(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. This provision makes it an offence to agree or make an arrangement with another person to commit an enumerated sexual offence against a person who, depending on the offence in question, the accused believed to be under 14, 16, or 18 years of age. [1]

[2] The respondent communicated with an FBI agent who was posing as the mother of two young girls. [2] The respondent found the agent in a chatroom and then began privately messaging her. Over the course of several weeks, the respondent described the sexual acts he wanted to engage in with the FBI agent and the two girls. Travel arrangements were discussed whereby the respondent would fly to Kansas City to engage in sexual acts with the FBI agent and one or both of the girls. Their correspondence eventually fell apart when the respondent did not follow through in making travel arrangements. He did not travel to Kansas City.

[3] The respondent was charged with two counts under s. 172.2(1)(b), one in relation to each child. He testified at trial and admitted to engaging in the graphic, sexualized electronic communications with the FBI agent. However, he explained that he was concerned that she was making her children available for sexual purposes on the internet. In other words, he claimed to be investigating her. He was never genuine in his chats with the FBI agent, especially about meeting.

[4] The trial judge found the respondent not guilty on both counts. He held that the Crown had failed to prove that the respondent intended to follow through with the plan to visit Kansas City for the purpose of sexually assaulting the two girls. Instead, he found that the evidence only proved that the respondent engaged in fantasy role-play.

[5] The Crown appeals the respondent’s acquittal in relation to the older child (Count #1). [3] It submits that the trial judge erred in his interpretation of the mens rea in s. 172.2(1)(b) of the Criminal Code, which was clarified by this court in R. v. Wheeler, 2022 ONCA 824, 164 O.R. (3d) 641, leave to appeal refused, [2023] S.C.C.A. No. 206 (“Wheeler No. 2”), [4] and which was released after the trial judge’s decision. The Crown submits that this court should enter a conviction on Count #1 based on the evidence in the trial record.

[6] The respondent acknowledges that the trial judge erred on the mens rea issue, but submits that the acquittal should be upheld because the trial judge also entertained a reasonable doubt about the actus reus of the offence.

[7] We would accept the respondent’s concession that the trial judge erred in his appreciation of the mens rea for s. 172.2(1)(b). However, the trial judge’s reasons do not reveal a firm conclusion one way or the other about whether the Crown proved the actus reus of the offence. Consequently, we would allow the appeal and order a new trial on Count #1.

B. Summary of the Evidence at Trial

(1) The Kik Text Message Exchanges

[8] Special Agent Megan Kline (“SA Kline”) was a member of the FBI’s Violent Crimes Against Children Task Force. She monitored a public chatroom (called “Daddy and little”) on the Kik messenger platform. Her task was to identify children in danger and investigate people who were prepared to travel to meet up with a child for sexual purposes. Under the screen name of “Mama2Girls”, SA Kline posed as a 30-year-old mother of two daughters, “Addison” or “Addy” (age 11) and “Alexis” or “Lexi” (age 7).

[9] The case against the respondent was largely comprised of his electronic communications with SA Kline. On November 18, 2018, SA Kline received a message from someone with the username “hiscleverusername.” It was acknowledged at trial that all communications from this username were from the respondent. Over the next several weeks, the respondent and SA Kline exchanged hundreds of messages.

[10] Very early in this correspondence, the respondent inquired into the ages of SA Kline’s children. After learning their ages, he asked about their sexual experience. The respondent was very explicit in his descriptions of the sexual acts he wanted to engage in with SA Kline and one or both of the children. There is no need to describe these messages in detail. They are graphic, vile, and disturbing; they describe very serious child sexual abuse. Instead, we focus on those messages in which the respondent and SA Kline discuss meeting in Kansas City.

[11] The Kansas City discussions started in December of 2018. There were many messages about the respondent flying down to meet SA Kline, and then the girls. The respondent said he had previously visited Missouri for work purposes. He messaged about the price of airline tickets. During these exchanges, the respondent frequently directed the focus back to sexual matters. Most of these messages related to the 11-year-old child, although he sometimes spoke of involving the younger child.

[12] The respondent eventually gave SA Kline his phone number. He also sent an authentic photograph of himself. The respondent was concerned about internet “fakes” and wanted to speak with SA Kline on the phone to “set [his] mind at ease”. They spoke on the phone once and discussed booking the trip to Kansas City.

[13] Their messages continued afterwards with the recurrent theme of booking the trip. The respondent wrote that he had asked a friend in the travel industry to help him get a deal on airline tickets. However, he continued to express concerns about the sincerity of SA Kline. He insisted that she send him a photo of herself and “Addy”, the older child. But SA Kline told the respondent that he first had to demonstrate his sincerity by booking a flight. Their exchanges deteriorated into what the trial judge called a “spat”. The respondent ultimately told SA Kline that he would postpone the trip “for now”.

[14] Shortly afterwards, on January 10, 2019, the respondent wrote to SA Kline and called her a “sick fuck” and threatened to report her “IP and MAC address” to the “KC police.” He subsequently threatened to contact the police if SA Kline did not send the photograph he requested. Despite the hostile tone of these messages, the respondent sent further messages on January 13, 14, and 15, 2019, which the trial judge characterized as “masturbatory fantasy” messages. The respondent was arrested at his home on January 29, 2019.

[15] SA Kline testified at trial. She narrated and commented on the message exchanges. She testified that, in her experience, there is sometimes an element of role-play that goes on in internet chatrooms. Part of her job is “weeding out if this is fantasy play or not”. She said that, when engaging in these undercover chats, “I give a lot of outs”, which she described as opportunities for the other person to say, “Sorry, this was all fantasy.” She did this in her interactions with the respondent; he never took any of these “outs”.

(2) The Respondent’s Evidence

[16] At the time of trial, the respondent was 50 years old. He had been in a common law relationship for roughly 30 years and had two boys, aged 10 and 13.

[17] The respondent testified that, in his discussions with SA Kline, he was attempting to find out if she was abusing a child. He had heard that she was a person who was “peddl[ing] her kids.” He also thought that she might have been responsible for disrupting other sex-related chatrooms in which he was active. The respondent said that he would have reported her to the police if he were able to confirm his suspicions about child abuse. The respondent apparently had numerous family connections to law enforcement.

[18] However, the respondent did not go to the police. He claimed that he did not have sufficient evidence, despite having participated in countless text exchanges with SA Kline, the same messages at the heart of the Crown’s case against him. He also said that he did not follow through with his familial law enforcement contacts because he would have had to tell them he had been using an “app”, Kik. Given his disdain for social media, which was known to his social circle, it would have been embarrassing for him to be associated with it.

[19] The respondent testified that the only reason he engaged in discussions about sexual activity with the children was to make SA Kline believe that he was looking for sexual interactions with children. He also wanted SA Kline to believe that he was going to visit her and the children in Kansas City. He was not sincere about either; both were part of his ‘investigation’.

[20] The respondent denied that he was engaged in role-playing with SA Kline. He said: “I’m not role playing because I have no interest in role playing … about children, and I have no interest in discussing sexual acts and following them through about children, in any way, shape or form.”

C. The Trial Judge’s Reasons

[21] The trial judge found the respondent not guilty. He rejected the respondent’s evidence, finding that “he [had] no credibility”. He characterized the respondent’s explanation for not getting in contact with the police as “self-serving and ridiculous in the context of his own narrative”: at para. 37.

[22] In his detailed reasons, the trial judge found that the Crown had not proved that the respondent had the requisite intent in s. 172.2 – an intent to follow through and travel to Kanas City to commit the underlying sexual offences. However, in the same passages, the trial judge traverses between mens rea and actus reus considerations. In paras. 42 and 43, the trial judge said:

In the present case there is no evidence of any steps taken by [the respondent] beyond the communications. The communications themselves do not prove the specific intent to agree or make an arrangement beyond a reasonable doubt. Therefore, I find that while the Crown has proven that [the respondent] communicated with FBI Agent Kline and did discuss the possibility of travel to commit an enumerated offence or offences, the Crown has not proven beyond a reasonable doubt that [the respondent] had the intent to enter into an agreement or make an arrangement with the investigator to actually travel.

Conclusion

I have rejected [the respondent’s] explanation as to why he was communicating with Agent Kline. There was no air of reality to his evidence; he was not credible. I have also found that the Crown has not proven beyond a reasonable doubt that [the respondent] had the intention required by s. 172.2. Given this lack of proven intent, I infer that [the respondent] was communicating with Agent Kline in order to engage in what I will here euphemistically refer to as fantasy roleplaying. [Emphasis added.]

[23] After discussing the differences between ss. 172.1 (child luring) and 172.2 of the Criminal Code, the trial judge said, at para. 47:

In the present case, I have found that the Crown has not proven that [the respondent] was engaged in anything beyond fantasy role-playing with a person who turned out to be a FBI agent. The charges against [the respondent] are therefore dismissed. [Emphasis added.]

D. Analysis

(1) Introduction

[24] Sections 172.1 and 172.2 of the Criminal Code are designed to protect children from internet sexual predators. Section 172.1, the child luring provision, criminalizes direct contact with children, by means of telecommunications, for the purpose of committing sexual offences. Section 172.2 criminalizes defined conduct that does not involve direct contact with children; instead, it targets telecommunications between adults that result in agreements or arrangements to commit sexual offences against children.

[25] Writing about s. 172.1 (child luring), Fish J. in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551 said: “It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them”: para. 25 (emphasis in original). See also R. v. Bertrand Marchand, 2023 SCC 26, 431 C.C.C. (3d) 1, at paras. 6-8; R. v. Alicandro, 2009 ONCA 144, 95 O.R. (3d) 173 (C.A.), at paras. 19-21, 36-38, leave to appeal refused, 275 O.A.C. 400 (note) (S.C.C.). Section 172.2 may be characterized in the same way: Wheeler (No. 2), at para. 74.

[26] The text of s. 172.2(1) of the Code 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

(a) under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) with respect to another person who is, or who the accused believes is, under the age of 18 years;

(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; or

(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years. [Emphasis added.]

[27] Offences under s. 172.2 may be committed by two people unconnected to law enforcement. These are the most troubling scenarios under s. 172.2 because they involve the greatest risk of a child being sexually abused.

[28] Perhaps the more common application of s. 172.2 involves the participation of undercover police officers investigating online predators. These scenarios may also be potentially hazardous; if the target of the investigation has access to children, there is a risk that grooming behaviour may occur – something that is obviously harmful to any child.

[29] Subsection (5) addresses circumstances in which the police are involved. Paragraph (a) under this subsection provides that it is not a defence that the accused “agreed or made an arrangement” with a police officer. Further, s. (5)(b) provides that, if the accused communicates with a police officer, it is not a defence that the child or young person referred to in ss. (1)(a), (b) or (c) “did not exist”. Both subsections apply in this case.

(2) The Holdings in the Wheeler Appeals

[30] This court considered the essential elements of s. 172.2 in Wheeler (No. 1) and in Wheeler (No. 2).

[31] Mr. Wheeler engaged in a series of online communications with a police officer who posed as a single mother with young children. He exchanged sexualized messages with the officer, similar to the exchanges in this case. The two agreed to meet to see if they liked each other before introducing Mr. Wheeler to the children. They met at a Tim Hortons where the same officer arrested him.

[32] In his statement to the police, Mr. Wheeler said that he knew all along that the person with whom he communicated was a police officer and that he was engaged in fantasy exchanges. He was not sincere in meeting up for the purpose of committing sexual offences against children. He claimed to be in a game of “internet chicken” with the police officer: Wheeler (No. 1), at para. 6. Mr. Wheeler gave a similar account at trial.

[33] The trial judge rejected Mr. Wheeler’s evidence. He found that the accused formed an agreement with the officer to commit the offence of sexual interference. This was to take place at the officer’s house, on a day when Mr. Wheeler believed that the fictitious child would be kept home from school. He was found guilty.

[34] In Wheeler (No. 1), the court allowed the appeal because of the way in which the trial judge defined an agreement in s. 172.2(1). He interpreted an agreement “to mean any internet exchange, where the objective is to get another’s cooperation or consent to the commission of a designated offence.” As this court said, at para. 8: “An agreement is the coming together of two minds, not the ‘objective’ by one party to ‘get another’s cooperation.’” A new trial was ordered.

[35] The new trial proceeded on the transcripts from the first trial. Again, Mr. Wheeler was found guilty. On his second appeal to this court (differently constituted), he submitted that the trial judge erred by misapplying R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, in relation to the actus reus of s. 172.2. He also contended that the mens rea for s. 172.2 is the intention to enter into an agreement to commit a sexual offence, with the intention of carrying out the offence of sexual interference.

[36] Writing for the court in the second appeal, Feldman J.A. stated that the mens rea of s. 172.2 is “the intent to agree to commit one of the underlying offences”: para. 80 (emphasis added). This does not require proof of the intent to commit one of the underlying offences, nor need the Crown prove that the accused intended to follow through once the agreement crystallized: at paras. 80-82. As Feldman J.A. said: “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”: at para. 81. She added that, in determining whether the Crown has proved an intention to enter into an agreement, the trier of fact may find it useful to consider whether the evidence demonstrates that the accused intended for the other person to take them seriously: at para. 82. [5]

[37] In terms of the actus reus of s. 172.2, Feldman J.A. said the following, at para. 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. [Emphasis added.]

[38] As discussed below, this passage is important to the determination of this appeal. The appellant relies on the last sentence in this paragraph, which stresses that “subjective intention” is irrelevant. The respondent submits that the first sentence properly identifies the proper act requirement for this offence – “a coming together of two minds”, which necessarily involves a subjective state of mind.

[39] Feldman J.A. addresses the actus reus of s. 172.2 in other parts of her reasons. For example, in rejecting the argument that the lack of an intention to carry out the agreement puts no child at risk, Feldman J.A. rightly points to the risk of grooming behaviour by a communicant who has access to a child. She goes on to say, at para. 76: “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” (emphasis added). As she continued, in para. 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. [Emphasis added.]

[40] Further, in finding there is no overlap between the offence under s. 172.2 and an attempt to commit one of the underlying offences, Feldman J.A. observed that Parliament deliberately configured the fault requirements in s. 172.2 differently from attempts to commit any of the underlying offences “in order to criminalize conduct more preparatory than an attempt”: at para. 80. As she explained:

…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).

[41] Lastly, and for the sake of completeness, we set out the concluding passages in Wheeler (No. 2), at paras. 81-82, in which Feldman J.A. summarized her conclusions:

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.

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 (R. v. Vander Leeuw, 2021 ABCA 61, 403 C.C.C. (3d) 399) stated and both parties here concede, it is not a separate component of the mens rea that must be proved by the Crown. [Emphasis added.]

(3) The Arguments on Appeal

[42] As already noted above, the respondent concedes that, not having had the benefit of Wheeler (No. 2), the trial judge applied the wrong test for the mens rea of s. 172.2 of the Criminal Code.

[43] The contentious issue on appeal relates to the actus reus for s. 172.2. The appellant contends that, based on Wheeler (No. 2), all the Crown must prove is the utterance of words signifying an agreement to commit a listed offence, irrespective of the sincerity of the accused. The respondent submits that more is required – there must be a true agreement on the part of the accused person.

[44] In his able submissions, Mr. Durran for the respondent acknowledges the authority of Wheeler (No. 2). He also recognizes that s. 10.3 of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario requires that a party who “wishes to ask the court to decline to follow a prior precedential decision” must request a hearing before a five-judge panel: see also Robert J. Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018), at p. 157. But counsel does not challenge Wheeler (No. 2); instead, he submits that some of the language used in the court’s reasons supports his position on the actus reus of s. 172.2. The appellant submits that Wheeler (No. 2) precludes us from accepting the respondent’s position.

(4) Discussion

(a) The Fault Requirements for s. 172.2

[45] We agree with the respondent that the actus reus of s. 172.2 of the Criminal Code requires more than intentionally uttering words of agreement. This conclusion is available on a close reading of Wheeler (No. 1) and Wheeler (No. 2). It is also driven by general principles of criminal liability.

[46] An interpretation of s. 172.2 that merely requires proof that the accused person intentionally (i.e., meant to) uttered the words of an “agreement”, irrespective of their sincerity, pegs the fault requirement well short of what is typically required for criminal liability in Canadian criminal law. It risks unfair and undesirable outcomes. With the simple utterance of a word or phrase (i.e., “yes”, “okay”, “I agree”, “sounds great”), individuals may be caught under s. 172.2 of the Criminal Code and face serious criminal sanctions. To be sure, role-playing in this context has no social value nor any redeeming features. This behaviour is disturbing and is not to be condoned, endorsed, or encouraged by any means. However, without careful attention to the manner in which the section is presently written, it risks expanding the reach of the criminal law unduly. The same approach was taken in Legare, in which Fish J., at para. 33, references the following passage from Andrew Ashworth, Principles of Criminal Law, 6th ed. (2009), at p. 456: “…inchoate crimes are an extension of the criminal sanction, and the more remote an offence becomes from the actual infliction of harm, the higher the degree of fault necessary to justify criminalization.” [6]

[47] The different language employed in ss. 172.1 and 172.2 is important. Although the sections have a unified objective (protecting children proactively from internet predators), the language used is different in a significant way. Under s. 172.1, an offence is committed when a person who, “by a means of telecommunication, communicates with” a person believed to be under a certain age (14, 16, or 18 years) for the purpose of committing listed sexual offences. Parliament could have used similar language in s. 172.2 – criminalizing mere communications between adults for the purpose of committing the same sexual offences against children. However, it did not. More is required – in this case, a genuine agreement on the part of the accused, as discussed below. Parliament’s choice of language must be respected.

[48] More generally, in Canadian law, the classical approach to fault involves the identification of the act component(s) of the offence (or the actus reus), on one hand, and the corresponding mental element(s) (or the mens rea), on the other. As the Supreme Court held in R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 653, this approach to culpability seeks to avoid punishing the morally innocent.

[49] This foundational principle also requires a temporal concurrency between the two elements. This is sometimes referred to as “the simultaneous principle”: see R. v. Cooper, [1993] 1 S.C.R. 146, at pp. 156-158; R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at p. 146; R. v. Brown, 2022 SCC 18, 412 C.C.C. (3d) 427, at paras. 106-107; and Don Stuart, Canadian Criminal Law: A Treatise, 8th ed. (Toronto: Thomson Reuters Canada Limited, 2020), at pp. 409-411.

[50] While this manner of organizing the principles of criminal liability has generally proved to be valuable, it has its limits. As Professor Stuart has observed: “The distinction between actus reus and mens rea is only an analytic device”: at p. 409. As the criminal law reaches into new areas of criminal behaviour – and, historically speaking, the offences created by s. 172.1 and 172.2 are relatively recent additions to the Criminal Code – this analytic device may not always be helpful in explaining what the Crown is required to prove in order to establish guilt.

[51] This point is illustrated in Legare, in the context of s. 172.1. Fish J. observed that it is “neither necessary nor particularly helpful for trial judges to recast every element of the offence in terms of its actus reus, or ‘act’ component, and its mens rea, or requisite mental element”: at para. 38. As he said, “[i]t seems to me preferrable, in setting out the elements of s. 172.1, to adopt ‘language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation’”: at para. 40, quoting Howard’s Criminal Law, 5th ed. (1990), p. 11.

[52] These observations are apposite in this case. Offences under s. 172.2(1) may be committed if the accused “agrees” or “makes an arrangement” with another person to commit one of the enumerated sexual offences. At trial, the Crown did not specify the precise mode of committing the offence. On appeal, it restricts its submissions to someone who “agrees” with another. Consequently, it is not necessary for the purposes of this appeal to explore the differences between the two modes of committing an offence under s. 172.2(1).

[53] There is some artificiality involved in separating the act and mental element of an agreement for the purposes of s. 172.2. The two are necessarily intertwined given the nature of the offence. The section does not speak of the mere uttering of words of an agreement, or the intentional conveyance of words of an agreement. It criminalizes someone who “agrees with a person… to commit an offence.” The act of agreeing is itself a mental process – “the coming together of two minds”, as this court has said in Wheeler (No. 1) and Wheeler (No. 2). If a meeting of the minds is required, then the accused must be genuine in making the agreement; without it, there can be no agreement, merely words.

[54] A helpful comparison is found in the law of conspiracy. In R. v. O’Brien, [1954] S.C.R. 666, the Supreme Court of Canada held that to prove a conspiracy there must be a true agreement between the co-conspirators. An apparent “agreement” is not sufficient. Rand J. put it this way, at p. 670:

I agree that a conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed; mere words purporting agreement without an assenting mind to the act proposed are not sufficient.

He also held that the intentional uttering of the words “I agree”, rather than an actual intention to carry out the agreement, “is a refinement that seems to me to be out of place in a common law crime”: at pp. 670-671.

[55] This approach was followed in United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 88. Also, in R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669, Fish J. wrote, at para. 35: “It is thus well established in Canada that there must be actual agreement for a conspiracy to be formed. And actual agreement requires genuine intention.”

[56] In this case, an agreement is a consensus reached between at least two parties to engage in conduct that falls within one or more of the enumerated offences specified in s. 172.2(1)(a), (b), or (c) of the Criminal Code. A true consensus goes beyond discussion or negotiation to a point where the parties actually agree. Role-playing is not necessarily inconsistent with the existence of an agreement. Some role-players will never go beyond discussion or negotiation. For these role-players, ongoing discussions are the end goal. Other role-players may arrive at the required consensus as part of their role-playing. Those role-players have entered into an agreement as contemplated in Wheeler (No. 1) and Wheeler (No. 2). Once the agreement has crystalized, the actus reus has been proved.

[57] Whether the communications between the parties generate evidence of a true consensus is ultimately a question of fact to be determined on the entirety of the evidence. We would add that, while evidence of an actual intention to carry out the agreement and commit the offences is not necessary to prove the agreement, evidence of that state of mind would certainly have probative value on the existence of the required consensus necessary to establish the agreement.

[58] With undercover police investigations, there will never be a true consensus or a meeting of the minds. In a conspiracy case, this would be fatal to the prosecution. As Cory and Iacobucci JJ. said in Dynar, at para. 88: “Where one member of a so-called conspiracy is a police informant who never intends to carry out the common design, there can be no conspiracy involving that person.”

[59] But in the context of this offence, that situation is addressed by s. 172.2(5)(a). The provision provides that: “It is not a defence to a charge under paragraph (1)(a), (b), or (c)…that the person with whom the accused agreed or made an arrangement was a police officer or a person acting under the direction of a police officer.” [7] By providing that it is not a defence that the person who the accused made an agreement with is a police officer, Parliament has dispensed with the requirement of mutuality between the communicants, that is, a true meeting of the minds. Liability may attach absent a genuine agreement on the part of a police officer. Nonetheless, in these cases, the trier of fact must still look to whether there was a feigned expression of a genuine intention on the part of the police officer, beyond negotiation or mere discussion – one that the accused person genuinely agreed with.

[60] To summarize, an agreement for the purposes of s. 172.2 of the Criminal Code is defined to include more than the intentional uttering of certain words that signify agreement. When none of the communicants is a police officer (or acting under the direction of a police officer), there must be a “coming together of two minds”, a true consensus, as defined above. Without it, there is no agreement. When the accused is communicating with a police officer (or someone acting under the direction of a police officer), it must still be proved that the accused was genuine in purporting to agree with that person.

[61] We wish to be clear that this approach to the actus reus in s. 172.2 does not in any way detract from the clarification of the mens rea requirements in Wheeler (No. 2). Again, the mens rea is the intent to agree; it is not the intent to commit one of the listed offences in s. 172.2(2), nor must the Crown prove that the accused intended to follow through once the agreement has crystallized.

(b) Application to this Case

[62] As noted at the beginning of these reasons, the appellant and the respondent agree that the trial judge erred in finding that the respondent lacked the requisite mens rea because there was no evidence that he actually intended to follow through on the agreement and travel to Kansas City to sexually abuse the children. In other words, he erred in requiring the Crown to prove that the respondent intended to carry out the impugned arrangement or agreement. When he delivered his reasons, the trial judge did not have the benefit of this court’s decision in Wheeler. All that the Crown is required to prove is an intention to enter into an agreement to commit one of the enumerated offences.

[63] This error would normally justify setting aside the acquittal and ordering a new trial. However, the respondent submits that the trial judge was not satisfied beyond a reasonable doubt that the respondent had actually reached an agreement with SA Kline to commit sexual offences against the children. Consequently, the respondent submits that this court must uphold the acquittal in these circumstances.

[64] The Crown submits that, although the trial judge did not make an explicit finding on the actus reus, the finding is implicit in the context of his reasons for judgment when read in their entirety.

[65] We do not accept either of the respective positions of counsel. When his reasons are read as a whole, the trial judge makes no clear finding on the actus reus issue.

[66] The Crown submits that, during the submissions of counsel, the trial judge prefaced some of his questions in a manner that may have indicated that he accepted an agreement was made. By way of an example, the trial judge prefaced a question with the statement: “Let us say I find that there was an agreement”. It is clear to us that the trial judge used these conditional expressions to focus counsel on the issue that troubled him – the mens rea in s. 172.2.

[67] The Crown also relies on a sentence in the trial judge’s reasons, where he said: “it is clear that [the respondent] told Agent Kline that he was going to travel to the United States to meet her and the girls for a sexual purpose…”: at para. 39. However, the balance of the same paragraph demonstrates that the trial judge was ultimately unconvinced that this was sufficient to find an agreement had been made.

[68] The Crown further submits that, because the trial judge determined the case based on the mens rea issue, this suggests that he was satisfied that the actus reus requirement had been met. We are not prepared to rely on such a speculative basis to conclude that the trial judge was satisfied that the Crown had proved the actus reus. We also know of no authority that requires trial judges in their reasons to decide actus reus issues before mens rea issues. The manner and sequence in which a judge reasons will depend on the circumstances of each case. In this case, the trial judge may have found it more straightforward to explain the acquittals based on mens rea considerations.

[69] In contrast, the respondent submits that the trial judge’s reasons squarely point in the other direction – i.e., that there was no agreement. As noted above, in para. 47 of his reasons, the trial judge said: “I have found that the Crown has not proven that [the respondent] was engaged in anything beyond fantasy role-playing with a person who turned out to be a FBI agent. The charges against [the respondent] are therefore dismissed.” However, this statement is entangled in the trial judge’s conclusions on the mens rea of s. 172.2, where the trial judge believed that an intention to follow through on an agreement was required – not just the intention to agree.

[70] Ultimately, there was no clear finding one way or the other in the trial judge’s reasons on whether the actus reus in s. 172.2 was proven. As discussed above, it is a question of fact in each case whether the communications cross the line from discussion or negotiation to form an actual agreement.

[71] In conclusion, although we would allow the appeal, we would decline the appellant’s request to enter a conviction. It has not been established that, at a new trial, a conviction would be inevitable. Similarly, it is not obvious to us that the respondent will be acquitted if he is tried again.

E. Disposition

[72] We would allow the appeal and order a new trial on Count #1.

Released: April 18, 2024 “D.D.” “Doherty J.A.” “Gary Trotter J.A.” “I agree. Sossin J.A.”

Footnotes

[1] It bears noting that this court declared subsection 172.2(3) of no force or effect in R. v. D.N., 2023 ONCA 561, 168 O.R. (3d) 401, following the Supreme Court’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, such that an accused is no longer presumed to believe an alleged victim to be under the relevant age where a representation to that effect is made.

[2] The two young girls were completely fictitious, as was the persona the agent portrayed. In these reasons, we simply refer to them as the “girls” or “children.”

[3] The Crown abandoned its appeal on Count #2, in relation to the younger girl. The main focus of the electronic communications was on the older girl.

[4] There was a previous appeal in which this court ordered a new trial following the accused’s conviction: R. v. Wheeler, 2018 ONCA 1069 (“Wheeler (No. 1)”).

[5] There is another mens rea element in s. 172.2 – the accused person’s belief in the age of the real or fictitious child(ren) in question. This issue did not arise in either of the Wheeler appeals, nor does it arise in this case.

[6] The trial judge referred to this passage in para. 46 of his reasons.

[7] In Déry, at paras. 34-35, the Court declined to recognize the doctrine of unilateral conspiracy. In the United States, unilateral conspiracies are recognized. The American Model Penal Code (1985), at Part 1, § 5.04, allows for there to be a conspiracy where one party is an undercover officer, by setting out that “it is immaterial to the liability of a person who solicits or conspires with another to commit a crime that…the person whom he solicits or with whom he conspires is irresponsible or has an immunity to prosecution or conviction for the commission of the crime.” Section 172.2(5)(a) appears to implement a similar doctrine.