R. v. Wheeler, 2022 ONCA 824

WHAT YOU NEED TO KNOW

- The mens rea  for section 172.2 (conspiracy to commit sexual offence against a child) requires the Crown to prove the accused intended to make an agreement to commit an enumerated sexual offence against a child.

- Much like child luring, under s. 172.1, the mens rea does not require the Crown to establish the accused intended to actually carry out the sexual offence.

- It similarly does not require the Crown to establish that the accused intended the other party to take the agreement seriously, although this may inform the court’s assessment of the accused’s intention to make an agreement.

BACKGROUND

The appellant was convicted of agreeing with a person, by means of telecommunication, to commit the offence of sexual interference, with respect to another person who the appellant believed was under the age of 16 pursuant to s. 172.2(2) of the Criminal Code.

The appellant participated in a “hangout room” on a website known for sexualized chat. He messaged another user who portrayed herself to be a single mother with three children. In fact, unbeknownst to the appellant, she was an undercover officer. The appellant had a fantasy of having sex with a mother and her daughter. He shared this fantasy with the officer. They eventually discussed meeting up to carry out this fantasy with the officer’s daughter. The appellant arrived at the agreed upon location and was arrested by the officer.

ISSUE ON APPEAL

The main issue on appeal is what the test for mens rea is for s. 172.2: does the Crown have to prove only that the appellant intended to make an agreement to commit the underlying offence, or does the Crown also have to prove that at the time the agreement was made, the appellant intended to carry out the underlying offence?

ONCA confirms that only the former is required.

Disposition - Appeal dismissed.

ESSENTIAL ELEMENTS OF S. 172.2

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

                [Emphasis added.]

In this case, it was alleged that the appellant committed this offence by reaching an agreement with the officer to commit sexual interference (s. 151).

Actus Reus

Section 172.2 captures the coming together of two minds to commit an offence enumerated in s. 172.2(1). The actus reus of “agreeing” 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 communications themselves objectively disclose an agreement to commit an enumerated offence. The subjective intention of either party is irrelevant.

Mens Rea

There is no requirement that the accused actually intend to carry out the underlying offence. There is similarly no requirement that the accused intend to carry out the agreement reached.

Section 172.2 is an “inchoate” or “incomplete” offence – it does not require the commission of the actual sexual offence. This means it was Parliament’s intention, in enacting this provision, to prevent these types of sexual offences before they actually happen. As a result, Parliament has chosen to criminalize telecommunications aimed at facilitating these offences regardless of whether or not the accused actually intends to follow through. The same can be said for the mens rea for child luring under s. 172.1 of the Code: see R. v. Legare, 2009 SCC 56.

As a result, the mens rea for s. 172.2 is limited to whether or not the accused intended to enter into an agreement to commit an enumerated offence. It does not require the Crown to also prove that the accused actually intended to carry out the enumerated offence or took the agreement seriously.

Read the full decision here.