In R. v. Wheeler, 2022 ONCA 824, November 28, 2022, the accused was charged with the offence of agreeing with a person by means of telecommunication, to commit the offence of sexual interference under section 151 of the Criminal Code with respect to a person who the accused believed was under the age of 16 years, contrary to section 172.2(1)(b) of the Criminal Code.  Section 172.2(1)(b) states:

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.

At trial, it was established that the accused engaged in conversation with an undercover police officer about having sexual contact with the officer’s fictitious young daughter.

The accused testified that he knew he was speaking to an undercover officer and that he “was playing internet chicken with the officer, seeing how far the conversation would go” (see paragraph 14).  He was convicted.

On appeal, he argued that 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’ (at paragraph 45).

The appeal was dismissed.  The Ontario Court of Appeal held that “all that is necessary for the offence to be complete is the agreement and the intent by the accused to enter into it” (at paragraph 76).

The Mens Rea:

The Court of Appeal held that section 172.1(1) only requires the Crown to prove “that the appellant intended to make an agreement to commit the offence of sexual interference”. The Crown does not have to prove “in addition, that at the time the agreement was made the appellant intended to carry out the underlying offence” (at paragraph 61).

The Actus Reus:

The Court of Appeal held that 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…[I]t 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…[T]he 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” (at paragraphs 68 and 69).