



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wheeler, 2018 ONCA 1069

DATE: 20181221

DOCKET: C64753

Juriansz, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Wheeler

Appellant

Frank Addario and James Foy, for the appellant

Molly Flanagan, for the respondent

Heard: December 18, 2018

On appeal from the conviction entered on December 20,
    2016 by Justice Peter B. Hockin of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The
appellant appeals from his conviction under
    s. 172.2(2) of the
Criminal Code
and
    challenges the constitutionality of the mandatory minimum sentence.

[2]

The appellant engaged in a series of online
    conversations with a police officer who portrayed herself as a mother of two
    daughters, aged 12 and 5. She and the appellant exchanged sexually explicit talk,
    some of which involved the fictional 12-year old daughter. They eventually met
    at Tim Hortons where the appellant was arrested.

[3]

The appellant was charged with an offence under
    172.2(2) of the
Criminal Code
which provides:

(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 [listed in s. 151  here sexual interference with a child.]

[4]

Before trial, the Crown amended the original indictment to particularize
    the charge so that it alleged the appellant did agree to commit the offence.
    The amendment withdrew the allegation that he made an arrangement to commit
    the offence.
The issue before the court was whether the
    appellant agreed to commit sexual interference of a child. The fact of an
    agreement was therefore an essential element of the offence to be proved beyond
    a reasonable doubt.

[5]

The evidence included transcripts of graphic
    sexual talk and references to sexual activity between the appellant, the
    officer and her fictional daughter.

[6]

The appellant alleged that he did not make an
    agreement to have sex with the daughter and in any event, did not have the
    intent to go through with the matters discussed. He claimed it was all a
    fantasy and a game of internet chicken. The Crown alleged that the
    conversations disclosed both the agreement to have sex with the child and the
    intention to make the agreement.

[7]

It appears that the trial judge did not turn his
    mind to the elements of an agreement. At page 14 when discussing an agreement the
    trial judge said:

Cooperation or
    consent is the product of agree or an agreement in the section on a plain
    meaning of the words against the background of the purpose of the section, I
    interpret to mean any internet exchange, where the objective is to get
    anothers cooperation or consent to the commission of a designated offence.

[8]

An agreement is the coming together of two minds, not the
    objective by one party to get anothers cooperation.

[9]

In finding the appellant guilty, the trial judge
    did not make a finding that there was an agreement. Rather, he said page 17:

I accept that
    this [i.e. game of internet chicken] was [the] case at the beginning of his
    relationship with [the officer], but it changed quickly. On September 20, 2012,
    there were specific inquiries of [the officer] with respect to the child and
    her appearance. He understood at this point that his communicant lived in
    London. On September 25, 2012, there was explicit discussion of sexual activity
    at the communicants home, which could involve her daughter. He asked if her
    daughter was ready for sex. On September 27, 2012, there was an exchange of
    pictures.  That was a real event, not a fantasy.  He asked again if the womans
    daughter was ready for sex.  This was followed by a description of what this
    would involve.  There was a discussion of a date to meet.  And again, on
    September 28, 2012, and finally, On October 1, 2012, when it was agreed to meet
    the following day.

[10]

The Crown concedes that the trial judge did not expressly make a
    finding that there was an agreement to have sexual activity with the daughter. We
    are not persuaded by the Crowns submission that he did so implicitly. Simply
    put, there was no finding of an agreement by the appellant to commit sexual
    interference. This
was an essential element of the
actus reus
of the offence.

[11]

In
    light of this error, it is not necessary to consider the issues raised by the
    appellant with respect to
mens rea
and the sentence.

[12]

The
    appeal is allowed and a new trial is ordered.

R.G. Juriansz J.A.

M.L. Benotto J.A.

G.T. Trotter J.A.


