R. v. VANDER LEEUW, 2021 ABCA 61, FEBRUARY 17, 2021.
FACTS: The accused was convicted of “arranging” to commit a sexual offence against a child, contrary to section 172.2 of the Criminal Code. At his trial, the Crown led evidence of conversations the accused had with an undercover police officer (Shannon) and excerpts from his phone in which he had conversations with AS and NR concerning sexual activity with their children.
The accused testified that “he had no intention of committing an offence against a child, as he was actually investigating crimes against children on the Internet. Any agreement or arrangement he ostensibly made to commit an offence through the text messages was to detect and investigate criminal offences, not to commit them. Because his purpose was crime investigation, he did not have the necessary intention to commit the offences alleged” (see paragraph 7).
The accused appealed from conviction, arguing that the trial judge erred in considering his pre-charge silence and in interpreting section 172.2.
HELD: The appeal was dismissed.
Use of the Accused’s Silence:
In convicting the accused, the trial judge stated:
…no evidence showed that, on arrest (i.e. when he first came into contact with police), he alerted them (or anyone) to the trove of potentially useful information on his phone i.e. that might assist in investigations of (other) suspected abusers.
The Alberta Court of Appeal noted that the Crown conceded “that in this analysis ‘the trial judge went too far’. First of all, while the appellant gave a statement to the police upon arrest, it was not introduced in evidence; at a factual level, the trial judge had no basis for deciding that the appellant had not disclosed what was on his phone. Secondly, as a matter of law it is an error to draw an inference from the silence of an accused on arrest. An accused has a right to remain silent, and on arrest is to be advised of that right; drawing an adverse inference from silence turns the right into a trap” (at paragraph 16)
The Court of Appeal indicated that there “are a few exceptions to the rule that an inference cannot be drawn from the accused’s silence, such as when the defence is ‘alibi’, and where the silence has real relevance and a proper basis for its admission: R. v Turcotte, 2005 SCC 50 at paras. 47-50,  2 SCR 519. In this case, the failure of the appellant to report the results of his investigation to the police was relevant to the reality of the defence of ‘crime investigation’. Prior to his arrest, the appellant never reported to the police what he had discovered about the Shannon persona, A.S. and N.R. The “crime investigation” defence is not, however, a general exception (like alibi) to the rule that an adverse inference should not be drawn from the silence of an accused on arrest” (at paragraph 17).
The Alberta Court of Appeal concluded that “there was probative value in the appellant’s failure to report the activities of the Shannon persona, A.S. and N.R.” (at paragraphs 21 and 22):
As noted, there was probative value in the appellant’s failure to report the activities of the Shannon persona, A.S. and N.R., because that was inconsistent with the “criminal investigation” defence. Further, if potentially “ruining the lives of people I might report” precluded that reporting, there was no apparent purpose for the investigation. While the added comment about common knowledge appears to be a generalization, in the sense that it was made by the trial judge in the absence of actual evidence about the appellant’s knowledge of the law, there is no indication the trial judge’s negative credibility assessment was overly influenced by this one reason for disbelieving the appellant.
In summary, the appellant has not demonstrated any reviewable error in the trial judge’s fact findings, apart from the inference drawn from his silence on arrest. The failure of the appellant to report the activities of the Shannon persona, A.S. and N.R. to the police had probative value, because it was inconsistent with the appellant’s stated purpose of crime investigation.
The Elements of the Offence:
Section 172.2 states as follows:
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.
The Actus Reus:
The Court of Appeal held that “[o]n a proper interpretation of the section, ‘agreed’ or ‘agreeing’ should be regarded as two distinct methods of committing the actus reus of the offence. The word ‘arranging’ would be redundant if it was simply a synonym for ‘agreeing’…The Crown, therefore, had to prove one of the two branches of the offence, either that the appellant had ‘agreed to commit an offence against a child’ or ‘arranged to commit an offence against a child’…The actus reus requires an agreement to commit one of the listed sexual offences…The ordinary meaning of the word ‘agree’, requires that two people are ad idem on the agreement. In order to obtain a conviction on this branch of the offence, the Crown must prove a concluded agreement between two parties…An expression of intention to commit a crime does not become an ‘agreement’ if the recipient of the expression merely acquiesces in what has been said. The parties both agree that merely expressing a desire to commit a sexual offence against a child is not sufficient…With a general offence of conspiracy, it is necessary for both parties to genuinely enter into the agreement. A feigned agreement is not sufficient…That, however, is not required under s. 172.2, as that would defeat the point of criminalizing conduct that creates a risk of a sexual offence against a child, even if an actual offence never occurs. Section 172.2(5), which confirms that it is not a defence that the other party to the apparent agreement is a peace officer, makes it clear that for this particular offence the apparent agreement need not be genuine” (at paragraphs 33 to 35).
The Mens Rea:
The Court of Appeal held that the mens rea element “for the offence in s. 172.2 must be determined subjectively. It requires a) an intention to enter into an agreement or make an arrangement, and b) the actual making of an agreement or arrangement, (c) for the specific purpose or intent of ‘committing an offence’ against a child…The first two components of the test are essentially indistinguishable, because it is difficult to conceive of somebody ‘unintentionally’ entering into an agreement or arrangement. The Crown need not prove that the accused actually followed through on the agreement or arrangement to commit an offence…Both making an ‘agreement’ and an ‘arrangement’ contemplate the involvement of two people. To constitute an ‘agreement’ both of the participants must ‘agree’, but as previously noted a feigned agreement by one of the participants is sufficient to make out the offence. With respect to an ‘arrangement’, there need not be an actual ‘agreement’ to commit a sexual offence against the child, but there must be knowledge of the objective, and the doing or agreeing to do something for the specific purpose of facilitating the offence…From the perspective of the accused, he must intend to make an arrangement, for the specific purpose of committing an offence against a child. It is not an additional requirement that the accused ‘intended to be taken seriously’. An ‘arrangement’ does not have to be sufficiently premeditated, detailed or complex to amount to a ‘plan’, as long as the purpose of the arrangement is to facilitate the commission of an offence against the child. From the perspective of the accused, (a) the test is subjective, (b) a feigned agreement or arrangement by the other party is sufficient, and (c) an offence against the child does not actually have to occur” (at paragraphs 48 to 50).