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Criminal - Child Sex Arrangement. R. v. Stordy
In R. v. Stordy (Ont CA, 2024) the Court of Appeal allowed a Crown appeal of an acquittal from the CCC 172.2(1) ['Agreement or arrangement — sexual offence against child'] offence:[1] This appeal concerns the fault [SS: actus reus and mens rea] 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]
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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.] ....
(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 CanLII 2 (SCC), [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 CanLII 147 (SCC), [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 CanLII 42 (SCC), [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 CanLII 359 (SCC), [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.
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