R. v. Wilson, 2019 ONSC 3893

CITATION: R. v. Wilson, 2019 ONSC 3893

COURT FILE NO.: CR-18-50000018-AP

DATE: 20190624

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

LARRY WILSON

Appellant

C. Sweeny, for the Respondent

I. McCuaig, for the Appellant

HEARD: June 17, 2019.

REASONS FOR JUDGMENT

On appeal from the convictions entered on February 16, 2018 by the Honourable Justice E.J. Kelly of the Ontario Court of Justice.

SCHRECK J.:

1In 2014, an undercover police officer in Albuquerque, New Mexico began to exchange e-mails with an individual who expressed an interest in having a sexual encounter with a mother and her teenage daughter. Upon learning that the e-mails originated in Toronto, the officer notified the Toronto police who obtained a production order to determine where the e-mails originated from. The information obtained through the production order was then used to obtain warrants to search the home and computers belonging to the appellant, Larry Wilson. When the warrants were executed, the police found child pornography and Mr. Wilson was charged accordingly and later convicted following a summary conviction trial in the Ontario Court of Justice.

2Mr. Wilson appeals his conviction on the narrow ground that the e-mail communications between him and the undercover officer did not make out reasonable and probable grounds to believe that an offence pursuant to s. 172.2 of the Criminal Code has been committed, which was the basis for the issuance of both the production order and the search warrants.¹

3I would dismiss the appeal. In my view, the e-mail communications provided ample grounds for believing that an offence pursuant to s. 172.2 of the Code had been committed.

I. FACTS

A. The January E-Mails

4On January 6, 2014, Department of Homeland Security (“DHS”) officers from the Sexual Predator and Exploitation Enforcement Detail (“SPEED”) in Albuquerque, New Mexico posted an advertisement in the classified section of a website called “motherless.com”, which is known to be used by people interested in child and other types of pornography. The advertisement invited users to visit another website where requests could be made to fulfill their fantasies.

5On January 8, 2014, DHS Special Agent Morgan Langer received an e-mail response to the advertisement from a person who identified himself as “Larry Forchels” using the e-mail address “warmvoice4u2@gmail.com”. Agent Langer and this individual exchanged a series of e-mails between January 8 and January 16 in which the individual indicated that he had a fantasy of having sexual relations with a mother and her daughter at the same time. Agent Langer told the person that “we could def satisfy the mother/daughter scenario” and asked what age the person wanted the daughter to be, to which the person replied “daughter could be 14-16”. Agent Langer advised the person that “We have a couple of white 14 yo girls who would do it with their moms.”

6Agent Langer asked the person “When would u want to do this?”. The person replied that he was “thinking late March, a weekend” and inquired as to the cost and whether “their moms are cool about all this and very open minded”. Agent Langer replied that the cost would be $800 and that the mother and daughter are “good with all basic acts”. He offered to help with travel arrangements to Albuquerque and to make hotel recommendations. The person replied, “When I finalize the date I would be glad to have your recommendations on hotel”. He inquired whether the $800 would be “for the weekend with them” and whether the mother and daughter could wear stockings. He wrote “As long as both are cute, know that this is alright with them, I will sit down and plan which weekend and go from there.”

7Agent Langer confirmed that the $800 was for the weekend and that the mother and daughter would wear stockings. He suggested the last weekend in March and again offered to help with travel arrangements. The person did not respond until several months later.

B. The July E-Mails

8On July 1, 2014, Agent Langer received an e-mail message from “warmvoice4u2@gmail.com”. The sender stated that a lot had been going on in his life and that he was “looking at September and October” to fulfill some “fantasies and wants”, the first being “a married woman and her daughter” wearing stockings. He provided a description of the physical characteristics he wished the mother to have, asked whether this was “doable” and to be provided with a price and actual description.

9A series of e-mail messages were exchanged over the next three days in which Agent Langer again asked what age the person wanted the daughter to be, to which he replied “anywhere from fourteen to sixteen”. The person described a variety of sexual acts he wanted to participate in with the mother and daughter. Agent Langer replied that “We have a white girl who’s 15” but that the mother was “a little heavy”. He indicated that the cost was “maybe $2000”. The person asked Agent Langer what he meant by “a little heavy” as he was “not into … fat women”. Agent Langer replied that “she’s not fat maybe 10 lbs. over but still pretty hot”. He stated that payment should be in cash and provided the given names of the mother and the daughter. He did not receive a reply.

C. The Investigation in Toronto

10Agent Langer was able to look up an internet protocol (“IP”) address associated with the e-mail address he had corresponded with and discovered that it belonged to an Internet Service Provider (“ISP”) in Toronto. He accordingly forwarded the results of his investigation to the Toronto Police.

11Upon receiving the information from Agent Langer, D.C. Robb of the Toronto Police ascertained that the IP address belonged to Bell Canada. He obtained a production order in order to obtain the identity and address of the subscriber and then a search warrant for that address. The warrant was executed on October 8, 2014 and a number of computers and electronic storage devices were seized. The appellant was arrested on the same day. Warrants to search the electronic storage devices were later obtained and a number of child pornography images were found.

II. ANALYSIS

A. Overview

12At trial, the appellant unsuccessfully applied to exclude the child pornography images on the basis of a s. 8 Charter violation, alleging that there were insufficient grounds to justify the issuance of the production order and search warrants. The offence being investigated that was identified in both the informations to obtain (“ITO”) the production order and warrants was the offence of agreeing or arranging a sexual offence against a child, contrary to s. 172.2 of the Criminal Code.² The e-mail messages between Agent Langer and the individual he corresponded with composed the entirety of the grounds to be believe that the offence had been committed.

13The elements of the offence are set out in s. 172.2(1) of the Code:

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.

14The appellant submits that while the e-mail messages disclose a discussion about committing sexual offences against children or even an intention on the part of the appellant to do so, they do not disclose any “agreement” or “arrangement” because the appellant discontinued the correspondence. He submits that since there is no basis for thinking that there were any other communications, it was not open to the issuing justice to conclude that there were reasonable and probable grounds to believe that the offence had been committed and the trial judge erred in concluding otherwise.

B. Two Ways to Commit the Offence

15The appellant may be correct that the e-mail messages do not make out grounds to believe that there was any “agreement” to commit an offence. Leaving aside the issue of whether the undercover officer could ever have entered into a true agreement, the Ontario Court of Appeal made it clear in R. v. Wheeler, 2018 ONCA 1069, at para. 8, that the term “agreement” in s. 172.2(1) of the Code refers to “the coming together of two minds”. The appellant arguably discontinued communication before there was any “coming together of two minds”.

16There are, however, two ways in which an offence contrary to s. 172.2 can be committed: by “agreeing” or by “making an arrangement”. Counsel for the appellant submits that the two terms mean essentially the same thing. In R. v. Olynick, 2019 SKPC 16, at para. 18, Anand J. expressed the view that there is a “strong argument” that the terms are indeed synonymous, although he finds it unnecessary to come to any firm conclusion with respect to the issue. There are other decisions which implicitly suggest that the two terms mean the same thing: R. v. Tomasik, 2016 ONSC 3719, at para. 43; R. v. Birley, 2018 ONSC 2119, at paras. 62-63. Most cases that have considered s. 172.2 have not distinguished between “agreeing” and “making an arrangement”: R. v. Parks, 2018 ONCJ 947, at paras. 9-11; R. v. Duplessis, 2018 ONCJ 910, at para. 15; R. v. Rodwell, [2016] O.J. No. 6842 (C.J.), at paras. 51-54; R. v. Cooper, 2018 ONSC 6384, at paras. 38-39.

17In my view, the two terms are not synonymous. If they were, then the words “or makes an arrangement” in s. 172.2 would be redundant, contrary to one of the basic tenets of statutory interpretation: R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, at para. 107; National Automobile Aerospace Transportation and General Workers Union of Canada (CAW - Canada) Local No. 27 v. London Machinery Inc. (2006), 2006 CanLII 8711 (ON CA), 79 O.R. (3d) 444 (C.A.), at para. 77; Re Rizzo & Rizzo Shoes Ltd., [1998] 2 S.C.R. 27, at para. 27. In this regard, I note that in Wheeler, the Court expressly noted at para. 4 that the Crown in that case had particularized the indictment to allege only agreement, not arrangement.

C. The Meaning of “Arrangement”

18But if “arrangement” does not mean “agreement”, then what does it mean? The correct approach to statutory interpretation requires the court to read “the words of an Act ... in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at para. 112; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, at para. 25; Rizzo, at para. 21.

19Section 172.2, like the internet luring offence in s. 172.1, creates an inchoate offence which is designed to capture conduct that precedes the commission of a sexual offence against a child: Tomasik, at paras. 37-42; R. v. Freeman, 2018 ONCJ 742, at para. 30; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at paras. 31-35. Its purpose is to criminalize preparatory conduct: Legare, at para. 34.

20Although not dispositive, one source of the ordinary meaning of a term is its dictionary definition: R. Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law Inc., 2016), at pp. 62. The word “arrange” has a variety of meanings. The Oxford English Dictionary (Oxford: Oxford University Press, 2017) defines “arrange” as, inter alia, “organize or make plans for (a future event)”. The online Merriam Webster Dictionary (www.merriam-webster.com) includes as a definition “to make preparations for”.

21In my view, these definitions accord with the ordinary meaning of the term and as well as the purpose of the enactment. The section is intended to prevent harm before it occurs. It does not criminalize those who merely think about or even communicate about a wish to engage in sexual activities with children. Only those who cross the line from discussion into actually communicating with another person for the purpose of planning to commit the offence are caught by the section.

22I find support for my conclusion in Rahman J.’s discussion in Freeman of the mens rea requirement in s. 172.2 (at para. 31):

An accused must have the intention to make an arrangement to sexually assault a child. The accused’s intention must be determined subjectively. The accused’s purpose in making the arrangement must be to commit one of the designated offences. The Crown need only show that he intended to make the plan and that the plan involved one of the offences designated in the provision. Provided the accused’s mens rea coincides with the making of the arrangement, the offence is made out. It does not matter whether the offence is ever actually committed, attempted, or even factually possible. The Crown is not required to prove that the accused intended to follow through with his plan.

Similarly, in Olynick, at para. 19, Anand J. stated :

[I]t is clear that many cases support the proposition that an arrangement under this provision does necessitate the communication of a plan to commit one of the secondary offences. In both R. v. Freeman, 2018 ONCJ 742 at para. 41 [Freeman] and R. v. Tomasik, 2016 ONSC 3719 at para 43 [Tomasik], the court explicitly associates an arrangement under s.172.2 with a plan to commit one of the secondary offences. Thus, I have no hesitation in ruling that an arrangement under s.172.2 requires the communication of a plan to commit one of the secondary offences as well as the professed acceptance of that plan by the communicants.

I generally agree with this formulation, except that I am not sure that there need be any “professed acceptance” of the plan by the communicants. To require this would essentially make arranging the same as agreeing which, for the reasons outlined earlier, I do not believe it is.

23Because this is an inchoate offence that captures conduct that is remote from the commission of an actual offence, it requires proof of subjective mens rea: Legare, at paras. 32-35; Tomasik, at paras. 41-43.

24Of course, at a trial of an offence under s. 172.2, it will be for the trier of fact to determine whether the accused’s conduct goes beyond mere discussion and amounts to the communication of an actual plan to commit an offence.

D. The ITOs

25In my view, the ITOs in this case amply make out reasonable and probable grounds to believe that the appellant was communicating with Agent Langer for the purpose of making a plan to commit a sexual offence against a child, that is, to “make arrangements” to commit one of the enumerated offences, having regard for the following:

• He discussed the price to be paid.

• He specified the age, clothing and physical characteristics of the individuals he wished to engage in sexual relations with.

• He specified the sexual acts he wished to engage in.

• He attempted to confirm the willingness of mother and daughter to participate in the sexual acts.

• He discussed a specific time frame when he would travel to Albuquerque.

• He advised the undercover officer that he would like his assistance in making travel arrangements.

26It follows that the trial judge did not err in concluding that it was open to the issuing justices to conclude that reasonable and probable grounds to believe that an offence had been committed were established.

III. DISPOSITION

27The appeal is dismissed.

Footnotes

1. 1At the time, s. 487.012(3) of the Criminal Code required the establishment of reasonable and probable grounds to believe that an offence “has been or is suspected to have been committed” before a production order could be issued. The Code has since been amended and s. 487.015(2) now provides that production orders of the type at issue in this case can be made on the basis of “reasonable grounds to suspect” that an offence has been committed. While the previous version referred to reasonable grounds to be believe that an offence “is suspected to have been committed”, the parties approached the issue as if a production order had the same prerequisite as a search warrant issued pursuant to s. 487.
2. 2Although the appellant was initially charged with an offence under s. 172.2, that charge was withdrawn during the trial.