Her Majesty the Queen - v. -, 2019 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 16 Date: March 1, 2019 Information: 991035753 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brendan Dewayne Olynick Appearing: Lana Morelli For the Crown Brian Pfefferle For the Accused JUDGMENT S.S. ANAND , J I. INTRODUCTION [ 1 ] Brendan Olynick is charged with making an arrangement with another person to commit sexual offences against an eleven-year- old girl. Specifically, Mr. Olynick is charged with one count under s.172.2(1) (

b) of the Criminal Code . This

section prohibits, by means of telecommunication, the making of an agreement or arrangement with a person to commit an enumerated secondary offence with respect to another person who is, or who the accused believes is, under the age of 16 years. In this case, the secondary offence is invitation to sexual touching under s.152 of the Criminal Code , which proscribes inviting a person under the age of 16 to touch any person’s body for a sexual purpose.

[ 2 ] The investigation into Mr. Olynick began when he posted an online advertisement seeking a sexual encounter with a mother and daughter. A police officer, posing as a mother with an eleven-year-old daughter, responded to the advertisement. Over the course of several days, messages were exchanged between Mr. Olynick and the police officer through emails and texts. These communications culminated in a plan for the mother and daughter to meet Mr. Olynick at a hotel on a particular date to engage in sexual activity together. When Mr.

Olynick arrived at the hotel, he was arrested by police. [ 3 ] The only issue disputed by Crown and defence counsel is whether Mr. Olynick possessed the necessary mental element to be found guilty of the s.172.2(1) (

b) offence. Mr. Olynick’s position is that he engaged in these communications with the police officer in order to facilitate a sexual encounter with her, not her child, and that the arrangement concerning the child constituted fantasy role play. The Crown submits that as long as Mr. Olynick intended to make an arrangement with another person, whatever his motive in doing so, the fault requirement for the offence is met. (Of course, the arrangement itself must be characterized as one involving the commission of the secondary offence.) Thus, the Crown argues that it is irrelevant whether or not Mr.

Olynick made this arrangement to engage in fantasy role playing. The Crown maintains that Mr. Olynick’s conviction for this offence does not hinge on whether or not he intended to commit the secondary offence. Alternatively, the Crown argues that Mr. Olynick did not make this arrangement with fantasy role playing in mind, but did so in order to commit a sexual offence against an eleven-year-old child. Defence counsel contends that the mens rea of s.172.2(1) (

b) offences require not only that an offender intend to make the impugned arrangement with another person, but that the offender makes the arrangement for the specific purpose of facilitating the commission of the secondary offence. Defence counsel further submits that because Mr. Olynick’s purpose in making the arrangement with the ‘mom’ was to motivate her to engage in sex with him and to facilitate his sexual access to her while the child was asleep, the arrangement could not have the effect of grooming the child for sexual activity. Consequently, defence counsel argues that Mr.

Olynick did not possess the requisite mental element to be found guilty of the offence. [ 4 ] Although I agree with the proposition that the fault requirement mandated by s.172.2(1) (

b) requires more than the intention to communicate the words that constitute the arrangement, I do not agree that the mens rea for this offence requires that an offender have the specific purpose of facilitating the commission of the secondary offence. It is enough if the offender intends for his or her communication to be taken seriously by the recipient. For the words to be taken seriously, they must be intended to induce in the recipient the belief that the arrangement will actually be executed. Because Mr.

Olynick admitted that he intended for the police officer to take his words seriously and because I do believe him, at least to that extent, the Crown has established that the fault requirement has been made out. [ 5 ] The primary reason that I have decided to give written reasons in this matter pertains to the paucity of jurisprudence interpreting s.172.2 of the Criminal Code . There appear to be no Saskatchewan decisions that have considered the elements of the offence. All of the s.172.2 cases that were cited to me hail from Ontario.

While some of these cases define the fault element of the offence, the reasoning provided in these cases is sparse and, at times, problematic. Moreover, none of these cases define what is meant by “arrangement[.]” Thus, there exists an opportunity to clarify the ambit of the offence created by s.172.2. [ 6 ] That opportunity must be seized even though counsel take the position that, given the facts and evidence in this case, the remaining elements of the actus reus and mens rea for the offence are established.

The principle of legality requires me to attempt to articulate a clear description of the physical and mental aspects of this crime. As Professor Stuart so eloquently reminds us, Our judges have the responsibility of striving for precision within the ambits that legislatures give them. Total certainty will be elusive in the criminal law as in any other activity. We can, however, strive to achieve sensible and clear criteria.

This would seem to be applicable to all matters of substantive law[.] (Don Stuart, Canadian Criminal Law : A Treatise , 6 th ed (Scarborough: Carswell, 2011) at 27.) [ 7 ] In the reasons that follow, I first address the various aspects of the s.172.2 offence and provide an extensive rationale for my

interpretation of these elements. I then produce a more detailed recitation of the facts and evidence than would normally be the case. I proceed in this fashion because, even though I have determined that Mr. Olynick is guilty of committing the s.172.2 offence with which he is charged, and his guilt does not depend on whether or not he intended to commit sexual offences against a child, his sentence may be impacted by any findings I make in relation to whether or not he possessed such an intention. In addition, I am cognizant of the possibility that additional evidence may be tendered at Mr.

Olynick’s sentencing hearing pertaining to this subject. This subsequently provided evidence must be considered in the context of all of the rest of the evidence tendered in the case. As a result, a thorough record of facts and evidence presented thus far may facilitate the sentencing process. II. THE RELEVANT SUBSTANTIVE LAW

(1) The Possible Origins of the Problem

[8] The ambiguity surrounding the elements of the offence in s.172.2 may be attributed, at least in part, to the approach utilized bythe Supreme Court of Canada in interpreting the elements of s.172.1 and the close connection between the two provisions.

Section 172.1prohibits what is commonly referred to as Internet child luring. The section, as it is currently worded, proscribes communicating, bymeans of telecommunication, with a person who is, or who the accused believes is, under the requisite stated age, for the purpose offacilitating the commission of an enumerated secondary offence with respect to that person.

In the course of outlining the essentialelements of this offence in Legare v R, 2009 SCC 56 , [2009] 3 SCR 551 [Legare], Fish J., writing for the court, states that it is“neither necessary nor particularly helpful for trial judges to recast every element of the offence in terms of its actus reus . . . and itsmens rea[.]” (Legare at para 38.) Thus, it should perhaps come as little surprise that in interpreting s.172.1’s sister provision, s.172.2,trial judges have not clearly delineated the actus reus and mens rea of the offence. (For academic criticism of Fish J.’s reluctance to engage in a traditional actus reus and mens rea analysis of s.172.1, see Hamish Stewart, “Legare: Mens Rea Matters” (2010) 70 CR (6th)12 (WestlawNext Canada) [Stewart] and Ian Smith, “Developments in Criminal Law: Substantive Criminal Law: The 2009-2010 Term”(2010), 52 SCLR (2d) 213 (WestlawNext Canada).) [9] The legislative history pertaining to the two provisions justifies their characterization as sister provisions.

Sections 172.1 and172.2 were not introduced or passed together, as the offence contained in what is now s.172.1 was first enacted as part of the CriminalLaw Amendment Act, 2001, SC 2002, c 13, s 8 and s.172.2 was enacted as part of the Safe Streets and Communities Act, SC 2012, c 1, s23. Nevertheless, Parliamentary debates preceding the enactment of s.172.2 make clear the close connection between the two sections.

Inthese debates, various Parliamentarians indicate that s.172.2 was modeled on the existing child luring offence and that s.172.2 wasintended to fill a gap in the law caused by the fact that s.172.1 does not apply where the impugned communication does not directly involve the child victim. (See House of Commons Debates, 41st Parl, 1st Sess (27 September 2011) at 1245, 1705, 1710, 1840, and 1845, House of Commons Debates, 41st Parl, 1st Sess (21 September 2011) at 1515, House of Commons Debates, 40th Parl, 2nd Sess (27 October 2009) at 1150, and House of Commons Debates, 40th Parl, 3rd Sess (3 December 2010) at 1040.)

(2) The Actus Reus of

Section 172.2 Offences [10] A useful starting point in fleshing out the elements of the s.172.2 offence is the court’s decision in R v Cooper, 2016 ONSC 6384[Cooper].

The court held that the following elements are necessary for a finding of guilt on a s.172.2 offence: “1) an intentional use oftelecommunications; 2) with a person; 3) to agree or make an arrangement to commit one of the specified offences with respect toanother person who the accused believed to be underage.” (Cooper at para 38.) With the exception of the accused’s belief that the personwho is the subject of the specified secondary offence is underage, all of the elements of the offence articulated in Cooper can beconstrued as part of the actus reus of s.172.2. [11] The court’s articulation of these elements of s.172.2 offences, especially the first element, is not especially controversial.

Whenthe Supreme Court in Legare considered the elements of s.172.1, the court indicated that the first element of that offence was theintentional communication by computer (see Legare at para 36).

Given the slightly different wording of the originally enacted version ofs.172.1 (the provision, when first enacted, prohibited communication by means of computer system as opposed to telecommunications),compared to the current version of s.172.2, but keeping in mind that the latter offence was modelled on the former one, requiring theintentional use of telecommunications for s.172.2 offences as opposed to the reckless use of these means makes sense.

Moreover, usingtelecommunications as a means of communication is a choice and hence it must be intentional – such an activity is not easily viewedthrough the lens of the type of subjective risk analysis that must be undertaken when recklessness is considered a sufficient faultrequirement.

Consequently, the first aspect of the actus reus of the offence in s.172.2 is the use of telecommunications and the firstaspect of the mens rea of the offence could be characterized as the intention to use telecommunications. [12] Yet, there is an alternative way in which to view the requirement of intention to use telecommunications. Because the intention touse telecommunications is satisfied if the accused engages in voluntary muscular movements to communicate by this means, the mentalelement, although expressed as intention, could be considered to be part of the actus reus of the offence.

Indeed, there is academic support for precisely this type of analysis and conclusion (see Eric Colvin & Sanjeev Anand, Principles of Criminal Law, 3rd ed(Toronto: Carswell, 2007) at 168-171). [13] Other aspects of the physical elements of the s.172.2 offence are readily gleaned from the wording of the provision.

For example,that the accused must communicate with another person is seen from the section’s use of the phrase “with a person[.]” Moreover, anagreement or arrangement clearly lies at the heart of the s.172.2 offence. [14] Although the extant jurisprudence does not specifically address the term “arrangement,” relatively recently the Ontario Court ofAppeal defined the concept of agreement within the context of s.172.2. Unfortunately, the court’s ruling is problematic, especially whenone considers the wording of the provision in its entirety. The

section reads,

172.2

(1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement witha 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) or286.3(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, orwho 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.

(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishmentof imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years lessa day and to a minimum punishment of imprisonment for a term of six months.

(3) Evidence that the person referred to in paragraph (1)(a), (

b) or (

c) was represented to the accused as being under the age of 18, 16 or14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under thatage.

(4) It is not a defence to a charge under paragraph (1)(a), (

b) or (

c) that the accused believed that the person referred to in that paragraphwas at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

(5) It is not a defence to a charge under paragraph (1)(a), (

b) or (c) (

a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the directionof a peace officer; or (

b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under thedirection of a peace officer, the person referred to in paragraph (1)(a), (

b) or (

c) did not exist. In R v Wheeler, 2018 ONCA 1069 at para 8, the Ontario Court of Appeal defined an agreement as requiring “the coming together of twominds[.]” Yet the Supreme Court in Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27 at para 21 directs that,“Today there is only one principle or approach, namely the words of

an Act are to be read in their entire context, in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” When one looks at theentire context of the legislative provision in question and attempts to give the concept of agreement a meaning that sits harmoniouslywith the scheme of the rest of the provision, it is clear that an agreement within the context of s.172.2 does not necessarily denote a truecoming together of two minds.

Section 172.2(5) specifically contemplates that the person with whom the accused agreed or made anarrangement was a peace officer or a person acting under the direction of a peace officer. The subsection further stipulates that, in such ascenario, it is not a defence that a person in respect to which a secondary offence was contemplated did not exist. Thus, s.172.2, whenread in its entirety, includes the possibility of a person subject to a sting operation by undercover police being held criminally liable.

Thispossibility is so even though an undercover police officer would never truly agree or arrange with an accused to commit one of thespecified secondary offences in relation to an underage person. [15] Crown counsel has raised a number of important points pertaining to the definition of agreement within the context of s.172.2 ofthe Criminal Code. First, she correctly observes that it is not necessary for me to define the concept of agreement in s.172.2 because theCrown particularized the count alleged against Mr.

Olynick as having been brought about by way of an “arrangement.” Secondly, shesubmits that an arrangement constitutes a step further towards the completion of the secondary offence than does an agreement. Crowncounsel suggests that an agreement to commit a secondary offence can still be fairly abstract as it does not require a definite place andtime for the commission of the secondary offence to be specified or agreed upon.

In contrast, it is contended that an arrangement tocommit a secondary offence would require a specific place and time for the commission of the secondary offence to be communicated. [16] To a certain extent, some of the cases can be read as supporting the Crown’s argument about the difference between anagreement and an arrangement under s.172.2.

For instance, the trial judge in R v Wheeler, 2016 ONSC 8184 [Wheeler], who was notoverturned on this point, rejected the proposition that an agreement under s.172.2 required an expression by the accused of a plan tocommit the secondary offence coupled with a confirmation that the plan would be carried out by the other communicant. In rejecting thisproposition, the trial judge cited Legare for the principle that, in relation to s.172.1, the offender need not even intend to meet the victimwith a view to committing any of the specified secondary offences.

Similarly, in R v Birley, 2018 ONSC 2119 [Birley] at para 58, afterciting the trial judge’s decision in Wheeler, the court recognized that in the context of a s.172.2 offence committed by way of anagreement or an arrangement, “that there does not need to be a definite plan for the commission of the secondary offence.” [17] However, to require a s.172.2 offence committed by way of an agreement to be made out in the absence of a communicated planwould be to fail to recognize the differences between sections 172.1 and 172.2. The trial judges in Wheeler and Birley eschewed the

requirement of a communicated plan as part of the definition of agreement within the context of s.172.2 because no plan to commit thesecondary offences is necessary for impugned communications to come within the ambit of s.172.1. But s.172.1 criminalizes the use oftelecommunications whose purpose is to facilitate the commission of the specified secondary offences. The modern version of s.172.1(1)(

b) provides as follows: 172.1(1) Every person commits an offence who, by a means of telecommunication, communicates with . . . . (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of anoffence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to that person[.] The Supreme Court in Legare defined facilitation extremely broadly to include all communication that makes the commission of asecondary offence more likely by, for example, grooming young people to participate in the prohibited conduct (see Legare at para 28).The use of the words “purpose” and “facilitates” are absent from s.172.2. To give effect to the words actually present in s.172.2, namely“agrees” and “arrangement,” it can be argued that a plan must be the centerpiece of the impugned communication, however a chargeunder the

section is particularized, lest this inchoate offence be interpreted as requiring little other than pure thought. [18] Moreover, there certainly exists a strong argument that the concepts of agreement and arrangement are synonymous.

Indeed, inother criminal law contexts, jurists have held that the words “agrees” and “arranges” denote the same meaning (see, for example, R vGauge (1908), (MB CA), 13 CCC 428 at 449 (Man CA)). [19] However, even if an agreement and an arrangement under s.172.2 are not different in scope, and it is not necessary for me tocome to a firm conclusion on this issue, it is clear that many cases support the proposition that an arrangement under this provision doesnecessitate the communication of a plan to commit one of the secondary offences.

In both R v Freeman, 2018 ONCJ 742 at para 41[Freeman] and R v Tomasik, 2016 ONSC 3719 at para 43 [Tomasik], the court explicitly associates an arrangement under s.172.2 with aplan to commit one of the secondary offences.

Thus, I have no hesitation in ruling that an arrangement under s.172.2 requires thecommunication of a plan to commit one of the secondary offences as well as the professed acceptance of that plan by the communicants. [20] Of course, whether or not a court will find that the communication between the parties constitutes a plan to commit one of thesecondary offences or something that falls short of constituting a plan will depend on the facts of the particular case in question.

Themore specificity there is in the communication about exactly when, where, and how the secondary offence will be committed, the morelikely a court will find that a plan, and hence an arrangement, within the meaning of s.172.2 has been established. [21] This principle is illustrated by examining the facts of Tomasik. In this case, the accused was charged with various sexualoffences, including two counts of making arrangements to commit offences on a person under the age of 16 contrary to s.172.2(1)(b).

Heengaged in text and in-person communications with a sex worker over a period of three weeks during which he asked if the sex workerwould assist him to abduct and sexually assault a young girl. The communications proceeded to the point where the accused explicitlydescribed what he wanted to do with the abducted child and negotiated a fee of $500.00 for the sex worker’s assistance. There was alsosome dialogue about a date and location to meet where the sexual assault of the child would occur. This narrative formed the basis of thefirst count of s.172.2 with which the accused was charged.

The second count arose from communications he had with an undercoverofficer in an online chat room. During those communications, the accused asked about the officer’s underage daughter and discussed theidea of meeting them for sex. The accused asked the officer about her willingness to watch him penetrate her daughter and what shewanted to arrange. He suggested chatting for a while and then possibly meeting.

He also asked what she would like to do if thingsworked out. [22] Although Hennessy J. had no difficulty finding that the initial s.172.2 count was made out, it appears that she was not persuadedby the evidence that the actus reus for the second count was established. She noted that the communications between Mr. Tomasik andthe undercover officer were much less specific than the communications that Mr. Tomasik had with the sex worker. Indeed the chatswith the undercover officer ended before a specific proposal was agreed upon about meeting up.

Consequently, Hennessy J. concludedthat, “Although concluding an arrangement is an inchoate offence, focused on the preparatory conduct, I find that the evidence in thiscase was still too preliminary to meet the definition of the offence.” (Tomasik at para 94.) [23] In Birley, the accused was charged under s.172.2(1)(

b) in relation to communications he had with an undercover officer in a chatroom and in subsequent emails. During these exchanges, the undercover officer indicated that both his children, ages 8 and 14, weregirls. The accused stated that he would like to watch the officer interact sexually with the children, and the accused stated that he maywant to lick the children.

Despite the fact that there was some general conversation about the location where an encounter could takeplace between the accused, the officer, and his children, in subsequent communications the accused repeatedly indicated that while hewas keen to meet the officer, the accused did not know whether he would proceed with the encounter with the children. The accused andthe officer agreed to meet at a coffee shop without the children present and with no commitment on behalf of the accused to have a

subsequent encounter involving the children, but the accused failed to attend the scheduled meeting. [24] Defence counsel’s main argument was that the Crown failed to establish that the actus reus of the offence had been committed.As recounted by the trial judge, The fundamental argument made by counsel for the accused, Mr. Ellis[,] is that Mr. Birley had proceeded down a disturbing path but didnot cross the line into criminality.

Referencing language in the Code, counsel submits that the evidence does not establish that theaccused made a clear agreement or arrangement to commit the offence of sexual assault with a person under 16 years of age. The defence states that several emails . . . establish that the accused did not commit to meet the children or anyone other than the officer.Mr. Ellis argues that the emails present an individual who was not sure what he was going to do. Related to this, counsel submits thatMr. Birley never committed or agreed to sexual events even if he established trust with the officer after meeting in person.

The defenceargues that the emails only evidence Mr. Birley’s curiosity. This argument, the defence states, is reaffirmed at the end of the email chainwhere the accused states “Maybe this is not for me”. Mr. Ellis argues that while meeting for a shared interest is significant, it is not determinative. (Birley at paras 53-55) Interestingly, the accused’s acquittal in this case was based on his lack of mens rea rather than the absence of elements of the actus reus.

(3) The Mens Rea of

Section 172.2 Offences [25] Tomasik, the first case that considered the fault requirement for s.172.2 offences, is not without its problems. The court began itsfault analysis by citing Legare and then suggested that the mens rea for s.172.2 offences should be interpreted in no different a mannerthan the Supreme Court interpreted the fault requirement for s.172.1 offences.

Specifically, the trial judge in Tomasik held that “[t]heaccused must be shown to have engaged in the prohibited communication with the specific intent of arranging or facilitating thecommission of a specified secondary offence[.]” (Tomasik at para 41.) However, as indicated earlier, the words “facilitating” and“purpose,” albeit found in s.172.1, are conspicuously absent from s.172.2. [26] There do exist strong arguments for requiring s.172.2 offences to be construed as having a high level of mens rea.

There is apresumption of subjective mens rea for all criminal offences pursuant to the Supreme Court of Canada’s ruling in R v Sault Ste. Marie(City), (SCC), [1978] 2 SCR 1299. Moreover, this presumption was strongly affirmed by Laskin C.J. in the context ofoffences in the Criminal Code (see R v Prue, (SCC), [1979] 2 SCR 547). Furthermore, in the absence of a statutoryprovision to the contrary, mens rea is constituted by intention or recklessness with respect to the material circumstances specified in thedefinition of the offence (see R v Buzzanga (1979), (ON CA), 49 CCC (2d) 369 at 379-385 (Ont CA)).

Of these twoforms of subjective mens rea, intention and recklessness, it is important to note that the Supreme Court has never interpreted recklessness as a sufficient fault for an inchoate offence (see Kent Roach, Criminal Law, 7th ed (Toronto: Irwin Law Inc., 2018) at 143-165 [Roach],but especially Professor Roach’s analysis of R v Hamilton, 2005 SCC 47, [2005] 2 SCR 432 [Hamilton] at pages 162-163 of his treatise).In addition, given that the Parliamentary debates indicate that s.172.2 was modelled after s.172.1, there is every reason to assume that theParliamentary intent behind s.172.2 was that it has a level of fault commensurate with that in s.172.1.

From a principled perspective, ‘[i]twill be important that such statutory inchoate crimes have a high level of fault given their expansion of criminal liability.” (Roach at146.) Therefore, the mens rea associated with s.172.2 should be that of intention with respect to the material circumstances specified inthe definition of the offence. [27] The trial judge in Tomasik later did abandon her original position pertaining to the fault requirement for s.172.2 offences, whichincluded notions of purpose and facilitation, and instead adopted a mens rea standard that more closely aligns with the materialcircumstances specified in the definition of the offence.

Hennessy J. held that the mens rea of the offence is satisfied if the accusedintended to conclude an arrangement (Tomasik at para 43).

She clarified that the Crown did not have to show that the accused had anintention that the plan be put into effect nor did the Crown have to prove that the accused intended to follow through with the plan.Finally, the trial judge concluded that the burden on the Crown in ‘‘making arrangement” offences is not as high as for the counsellingoffences. [28] Although I agree with all of these latter propositions espoused by Hennessy J., the choice of words used to articulate the faultrequirement for s.172.2 offences is unfortunate.

The intention to conclude an arrangement could be construed as the intention to followthrough with the arrangement, which she said, and I agree, is too onerous a fault requirement for this offence. Later decisions such asCooper, Freeman, and Birley express the mens rea for s.172.2 offences in more preferable terms as the intent to make the agreement orarrangement (see para 39 of Cooper, para 31 of Freeman and paras 4 and 60 of Birley).

[29] The reason that it would be inappropriate to require the Crown, under s.172.2, to prove that the accused intended to followthrough with the plan to commit the secondary offence is that to do so would fail to give effect to the remedial purpose of the legislation.An accused who communicates with another person and reaches a true agreement with that other person to commit a secondary offence,whereby both individuals intend to commit the secondary offence, could be found guilty of conspiracy to commit the secondary offence.An accused who communicates with another person and solicits that other person to assist him or her in committing a secondary offenceor solicits the other person to commit the secondary offence itself even when the solicited person (i.e., an undercover police officer) hasno intention of going through with the crime, could be found guilty of counselling a crime not committed under s.464 of the CriminalCode as long as the accused intends that the counselled offence be committed. (Actually, pursuant to para 29 of Hamilton, s.464 couldoperate to impose liability even if the accused was aware of the unjustified risk that the offence was likely to be committed as a result ofthe accused’s conduct.) Thus, there are pre-existing inchoate offences other than s.172.2 that could be used to hold individuals criminallyliable for making arrangements to commit secondary offences with others by means of telecommunications if the accused have the intentthat those secondary offences be committed at the time they engage in the telecommunications. [30] Nevertheless, in some of the reported cases, trial judges are confronted with defence arguments that what the accused haveengaged in is fantasy and role playing and the judges seem to assume that this argument, if substantiated by the evidence, could allowaccused to escape liability for s.172.2 charges (see, for example, Freeman at paras 33-46).

If the only true fault requirement for s.172.2offences is the intention to make the impugned arrangement, how could the accused’s ulterior intent or motive of engaging in fantasyrole play be relevant to his or her liability for the offence? One answer is that it could not. As stated in R v Lewis, (SCC),[1979] 2 SCR 821 at 833 “Motive is no part of the crime and is legally irrelevant to criminal responsibility.” [31] However, the proposition that motive is always immaterial to criminal liability is an overstatement.

Parliament has createdcriminal offences that expressly make motive an essential element of the offence, such as the terrorism offences now contained in theCriminal Code (see s.83.01(1)(b)(i)(A)). Moreover, the Supreme Court has interpreted some offences that criminally proscribecommunicative conduct to have a fault requirement that incorporates aspects of the accused’s motive.

For example, the offence ofuttering threats contained in s.264.1 of the Criminal Code was held to have a mens rea that required, at a minimum, that the accusedintended not just to utter the words but that the words be taken seriously by the recipient (see R v Clemente, (SCC),[1994] 2 SCR 758). [32] The requirement of this additional fault requirement, the intention that the words be taken seriously by the recipient, has theeffect of ensuring that an accused’s freedom of expression guaranteed by s.2(

b) of the Charter, which protects all content of expression,is not unduly infringed by s.264.1.

Although the court did not explicitly incorporate this additional mens rea requirement into s.264.1 toensure that it better complies with constitutional imperatives, it is not unheard of for the Supreme Court to interpret criminal legislationin a manner consistent with the Constitution before deciding whether such laws pass constitutional muster (see, for example, theinterpretative process engaged in by the court in relation to s.43 of the Criminal Code in Canadian Foundation for Children, Youth, andthe Law v Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76.) [33] Although Parliament has not seen fit to expressly incorporate motive as an essential element in s.172.2, courts should construethis criminal legislation as including an aspect of motive as part of the offence’s fault element for a number of reasons.

First, such aninterpretation would ensure that s.172.2 offences have fault levels commensurate with those for s.172.1 offences, an

interpretation that isjustified, as recounted earlier, by arguments of Parliamentary intent gleaned from House of Commons debates. Secondly, such aninterpretation is justified by general principles of substantive criminal law concerning inchoate offences. These principles generallydictate that inchoate crimes, such as s.172.2, require high levels of fault given the attenuated nature of the offences’ conduct elements.Yet it would be difficult to describe the mere intention to communicate words constituting the impugned agreement or arrangement asconstituting a high level of fault.

Thirdly, the fault element for s.172.2 offences should reflect aspects of motive because such aninterpretation is as solicitous of an accused’s Charter rights as possible, while simultaneously giving effect to the remedial purpose of thelegislation.

Section 172.2 should be interpreted to require that the accused intend not just to make the impugned agreement orarrangement but that the accused also intend that the words he or she communicated to make the agreement or arrangement be takenseriously by the recipient of his or her communication. The additional fault requirement would be less onerous for the Crown to establishthan the fault requirement associated with the offences of conspiracy and counselling a crime that is not committed, thereby extendingthe reach and protection of the criminal law.

Yet, the additional fault requirement would allow a sphere of protection for communicationthat was intended to be pure fantasy role play. [34] It is important to keep in mind that this sphere of protected expression is limited. Agreements or arrangements to commitsecondary offences will not be caught within the ambit of the criminal law if they are made with the sole intention of arousing and/orsatiating sexual desire in one or more of the communicants.

Nevertheless, if the words communicated by the accused are intended to alsoinduce in the recipient the belief that the agreement or arrangement will actually be realized, the heightened fault requirement justifyinginchoate criminal liability for a s.172.2 offence will be established. The real prospect of harm that flows from these types ofcommunications when they are accompanied by this type of intention justifies the imposition of criminal liability. [35] The last mental element associated with s.172.2 pertains to the accused’s belief that the person who is the subject of the specified

secondary offence is underage. Sections 172.1 and 172.2 use the same legislative language to require that the person who is the subject of the secondary offence be underage or that the accused must believe that person to be underage. In Legare , the Supreme Court confirmed that it was an element of s.172.1 that the accused have the knowledge or belief that the person who is the subject of the secondary offence be underage.

Given the similarity in wording and purpose of ss.172.1 and 172.2 , s.172.2 should be interpreted as requiring the same element. [ 36 ] Although the Supreme Court in Legare did not expressly label this requirement an aspect of the offence’s mens rea , subsequent academic commentary has concluded that it must be so (see Stewart). I find the analyses provided in this commentary compelling. The knowledge or belief that the person in question is underage must be an element of mens rea as it is a question of the accused’s state of mind.

(4) Summary of the Elements of the

Section 172.2 Offence Charged in this Case [ 37 ] Given the preceding analyses, the constituent elements of s.172.2 are readily identifiable and the elements of the offence particularized in this case can be categorized as forming either part of the actus reus or mens rea of the offence. Specifically, the actus reus of the offence charged is comprised of the voluntary/intentional use of telecommunications with a person to make an arrangement. The arrangement itself must be characterized as one involving the commission of the secondary offence of sexual touching proscribed by s.152 of the Criminal Code .

Such an arrangement requires the communication of a plan to commit the secondary offence as well as the professed acceptance of that plan by the communicants. The more specificity there is in the communication about exactly when, where, and how the secondary offence will be committed, the more likely a court will find that a plan, and hence an arrangement within the meaning of s.172.2 , has been established. [ 38 ] The mens rea of the offence charged, like the actus reus , is made up of multiple components. First, the accused must intend to make the arrangement.

This aspect of the fault component of the offence merely requires the accused’s intention to communicate words constituting the impugned arrangement. This requirement does not mean that the Crown must necessarily prove that the accused had the intention to follow through with the arrangement and actually commit the secondary offence or even have the intent to actually meet the other communicant or the proposed victim of the secondary offence. Secondly, the fault element for the offence charged also demands that the accused intend that his communication be taken seriously by the recipient.

While this additional fault requirement would allow a sphere of protection for communication that was intended to be pure fantasy role play, if the words communicated by the accused are intended to also induce in the recipient the belief that the arrangement will actually be followed through upon, this aspect of the mens rea of the offence will be made out. Thirdly, the accused must possess the knowledge or belief that the person who is the subject of the secondary offence is underage. III.

KEY FACTS AND EVIDENCE [ 39 ] On December 4, 2017, Corporal Bonstrom-Peake, working as an undercover Royal Canadian Mounted Police (RCMP) officer with the Internet Child Exploitation (ICE) unit responded to an advertisement on Craigslist Saskatoon. Craigslist is an Internet site that is specifically known to police officers as being used to facilitate child exploitation offences. The advertisement in this case indicated that the poster, Mr.

Olynick, was interested in having a casual sexual encounter involving a mother and daughter. [ 40 ] In responding to the advertisement, Corporal Bonstrom-Peake posed as Britt, a divorced mother with two daughters. Within hours of starting this online communication, Britt reveals that the daughter that she was interested in involving in this scenario is eleven years old. Almost immediately, Mr. Olynick responds by suggesting that he and Britt meet and chat more about it. When Britt presses him on what he would like to have happen, Mr.

Olynick says that he needs to know that she is for real and not just setting him up for something. He stresses the need to be cautious. [ 41 ] Britt and Mr. Olynick continue the online conversation they began on Craigslist by exchanging personal e-mail addresses. In the e-mails exchanged on December 4, Britt expresses concern about how he would treat her daughter. Mr. Olynick replies that he is great with kids and needs to be discreet.

He suggests that they get Britt’s daughter involved by having her catch them while they are engaged in sexual activity. [ 42 ] Britt states that she likes the plan and asks him if it is as real for him as it is for her. Mr. Olynick says yes and expresses his happiness at finding someone like Britt. Britt asks him, since they are going to do this at her house, whether she should send her five- year-old daughter somewhere for the night. She also mentions that her eleven-year-old is named Steph. Later, Britt says that she needs to pick the girls up from school and that she has to get them to their dance lessons.

[ 43 ] On December 5, Mr. Olynick gives Britt a number at which she could text him. Thereafter, all of the communications between Corporal Bonstrom-Peake and Mr. Olynick, at least until his arrest, are conducted through text messaging. In one of the first texts that he sends her, he asks if she has been thinking of any more fantasies. Britt reminds him that they had talked about this not being fantasy and that it is very real for her. She then says that she thought it was more than a fantasy for him as well. He says that he also wants it to be real.

She clarifies whether or not this is simply role play for him and he states that he wants it as bad as she does and asks her when she would like to meet. Britt says that she wants to get to know him a bit better before they meet, as she remains concerned about her daughter getting hurt. [ 44 ] Mr. Olynick suggests that Britt teach her daughter how to do sexual things with guys by using him. Specifically, he mentions having Britt and Steph take turns playing with his penis. [ 45 ] On December 6, Mr. Olynick asks Britt if she has thought more about what she wants to do with him and her daughter.

She responds by saying that she wants him to take the lead. He then repeats his desire to have her and Steph both play with his penis. [ 46 ] Mr. Olynick texts Britt about meeting up and potentially hooking up if they hit it off. Britt responds that Steph’s safety is her first concern. Mr. Olynick reassures her that Steph will be safe. On December 11, he says that when he and Britt meet, they will figure out how to take it slowly with Steph, and Britt agrees. [ 47 ] Over the next few days, Mr. Olynick advises Britt that he is likely going to move out of his girlfriend’s place because they are not getting along.

He tells Britt that if he moves out, she will be able to come visit sometimes. Britt’s response is that she is not sure that Steph would be as comfortable coming over to his place. [ 48 ] On December 13, Mr. Olynick and Britt discuss meeting in person. She asks him his address and suggests that she could come over quickly for a short visit. He asks her if she is legitimate, and he reiterates that he is concerned that he is being set up for something. He then states that he has to be careful who gets his address, and he suggests that they meet somewhere other than his place.

In the course of making this suggestion, Mr. Olynick says that he has been looking for someone like Britt, with a daughter, for a long time. Britt asks him if he is still excited about their plan even though Steph is only eleven. Britt then states that she is scared of getting caught and losing her. Mr. Olynick says that he is also concerned about getting caught and going to jail. For these reasons, he suggests that they carry out the plan at Britt’s place. [ 49 ] However, Britt and Mr. Olynick agree to meet in about 10 minutes’ time at a local McDonald’s restaurant.

Corporal Bonstrom- Peake along with Corporal Jared Clarke conduct surveillance in the parking lot of the McDonald’s restaurant and they see Mr. Olynick pull up in his vehicle wearing the clothes that he told her he would be wearing. She then calls him and tells him that something came up and she is unable to meet. [ 50 ] Later that day, they discuss trying to meet up again, potentially as soon as the following week. In the course of these exchanged texts, Mr. Olynick asks Britt if she has had any more naughty thoughts about them and Steph.

Britt asks him how he became interested in mothers and daughters, and he responds that he has fantasized about such an encounter for quite some time. He says that he has always wanted an encounter with a mom and daughter together. He reiterates that the way they should approach it is by watching a movie together. He suggests that he and Britt then begin to fool around in front of Steph and see how she reacts. Eventually Mr. Olynick says they could engage her in conversation and Britt could show her how to do sexual stuff with a man using him. [ 51 ] A few days later, Mr.

Olynick asks Britt if she has been thinking about the two of them and Steph at all lately. She responds affirmatively and then asks what he has been thinking about. He says that he was thinking about how she is going to show Steph how to play with his penis and how Steph and Britt will be playing with his penis at the same time. Finally, he says that he will engage both of them sexually as well. Britt emphasizes that she wants it to be safe and enjoyable for her daughter and Mr. Olynick reassures her that it will be that kind of experience for her.

He then says that he has been looking for a legit mom and daughter for a long time. Britt responds that she might feel more comfortable planning more once they have actually met. She suggests meeting the next day for coffee. [ 52 ] The evening before the planned meeting for coffee, Mr. Olynick asks Britt to remind him of Steph’s age, and she responds that Steph is 11 and will turn 12 in February. He then asks Britt to describe Steph’s appearance and he asks her if she has a nice tight round bum.

Britt’s response is that Steph is mature for 11, that she is starting to get pubic hair and that her breasts are budding. Britt also describes Steph’s hair and eyes, and she says that Steph has a perfect round bum. Mr. Olynick confirms that they will meet, make a plan, and set a date when Britt wants him to come over to her house. He also asks Britt to describe her own physical appearance to him and she

gives him her height, weight, and hair color. [ 53 ] Britt texts Mr. Olynick on December 18 and firms up the plan they made the previous day to meet for coffee. They arrange to meet at a local coffee shop at 11:30 a.m. Constable Kimberly Donison of the Saskatoon Police Service poses as Britt for this meeting. Constable Donison is told not to initiate any conversation with respect to any of the elements of a sexual act. [ 54 ] Mr. Olynick and Constable Donison meet at the scheduled place and time. While having coffee together and engaging in general conversation with each other, Mr.

Olynick says that he gets lots of replies to his Craigslist advertisement, but the replies consist of individuals who want to engage in fantasy and role play. While he says that is okay, he also says he would actually like to engage in a sexual encounter with a daughter with the mom present. He then asks Constable Donison to text him with a time that he could come over, hang out, meet Steph and see if she is comfortable around him. He also asks Constable Donison if he could see a picture of Steph, and she says that because she just obtained a new phone, she does not have a photo available.

They leave the coffee house and agree to text each other later. [ 55 ] Later that evening, Mr. Olynick and Britt (being played again by Corporal Bonstrom-Peake) exchange a number of text messages. They both indicate that they are relieved that the other one seemed nice. Mr. Olynick says that he wanted to talk more about the two of them and Steph, but there were too many people around in the coffee shop. Britt says she felt the same way, as they don’t want to get caught. When he asks Britt if she thinks that Steph will be comfortable around him, Britt says she has a friend that looks like Mr.

Olynick and Steph gets all flirty around him. Mr. Olynick says he hopes that Steph flirts with him, and he can flirt back and see if she goes further with her flirting. Britt responds by reminding him that Steph is only 11, so Mr. Olynick will probably have to push her a little. [ 56 ] Mr. Olynick asks Britt if she has plans for the new year and she says no but perhaps they can spend it together at her place. He agrees that this sounds like a good idea. [ 57 ] The next night, Mr. Olynick and Britt are texting each other. He says that he can’t wait to cuddle with her.

Britt asks if he wants to cuddle with Steph too and he responds affirmatively. [ 58 ] Later, Mr. Olynick invites Britt to attend his sister and niece’s Christmas concert with him and his family. Britt tells him she cannot make it because of obligations she has with her extended family. [ 59 ] Mr. Olynick says he hopes that he and Britt will spend New Year’s together. Britt says it would be nice to include Steph as well and Mr. Olynick agrees. He then outlines the plan for when they get together for New Year’s, and it is the same plan that they had previously discussed. Specifically, Mr.

Olynick says that Britt should show Steph how to play with his penis and that they get things started with Steph by all watching a movie together. During the movie, he suggests that Britt and he begin to fool around and see how Steph reacts. Britt says that Steph might be a little scared and need some encouragement. Mr. Olynick says the fact that Britt is there will help and she can show Steph and encourage her that it is all okay. Mr. Olynick says that he is not pushy, so they can proceed slowly with Steph. Britt texts that she wants to make sure Steph is safe and that it will be enjoyable, and Mr.

Olynick agrees. He asks her if she has thought about how far she would like them all to go in terms of the sexual acts, and he says that they do not have to do everything the first time. Mr. Olynick emphasizes that he is willing to go as far as Britt wants him to go. [ 60 ] On December 20, Britt sends Mr. Olynick a text saying that her aunt rented a hotel room for a few nights but won’t be able to use it because she has to head back home. Consequently, the aunt has told Britt she can use the room. Britt tells Mr.

Olynick that she was thinking of taking Steph out of school tomorrow afternoon for some water sliding, and then they could have the hotel room for the night if Mr. Olynick was interested. He indicates that he is very interested. The plan is that he comes water sliding with Britt and Steph so that Steph can get to know him. There is a suggestion that they engage in a group shower after the pool, and Britt extends the invitation to share the king size bed in the hotel room with her and her daughter. Mr. Olynick says that he is excited by these prospects.

He and Britt discuss the fact that he should bring trunks and lounging clothes. Brit also suggests that he bring anything else that they will need, and he suggests bringing condoms. Britt indicates that she will text him in the morning when the room is ready. [ 61 ] The next morning, Britt texts Mr. Olynick the name and location of the hotel and asks him to text her when he is in the lobby so that she can accompany him to the room. He texts her when he arrives and asks if she is there. He also texts, “There isn’t gonna be a camera crew waiting is there ha ha?

I’m excited!” Britt tells him she is coming down to the lobby to meet him.

[ 62 ] Corporal Bonstrom-Peake identifies herself as a police officer to Mr. Olynick and arrests him for making arrangements to commit a sexual offence against a child. She seizes a blue duffle bag that he has on his person. Inside the duffle bag, the police find socks, swimming trunks, a pair of underwear, sweatpants, a t-shirt, three condoms, two bottles of lubricant, deodorant, and a cell phone charger. After being advised of his rights to counsel, Mr. Olynick indicates that he wishes to talk to legal counsel once he gets back to the police station. However, after being read his rights to counsel, Mr.

Olynick makes the following statement: “I was just meeting her mom. I wasn’t going to do anything with the child. I have nieces and nephews. I would never do anything with a child. I wasn’t going to do anything.” Mr. Olynick is then transported to the police station, and he makes a call to Legal Aid. After that he is placed in a cell in the Saskatoon Police Station. [ 63 ] Corporal Clarke, another member of the ICE unit, conducts Mr. Olynick’s interrogation at the police station. During the interrogation, Corporal Clarke continues the ruse that Mr.

Olynick has been in contact with a real mother who had an eleven-year-old daughter. Corporal Clarke also tells him that Britt has been arrested in relation to this matter. [ 64 ] During the interrogation, Mr. Olynick indicates that he was never going to do anything with the child and that he was going to the hotel for the mom. He explains that the sexual communications he engaged in involving the child were aimed at arousing the mother.

At times during the interrogation, he admits to knowing that Britt wanted to involve her daughter in their sexual liaison, but at other times he suggests that he thought perhaps she was not really into following through with what she was talking about, namely having Steph join in with the sexual activity. [ 65 ] Corporal Clarke asks Mr. Olynick about the meeting he had with Constable Donison, who Mr. Olynick thought and continued to think was Britt, at the coffee shop. Corporal Clarke asks him if they talked about Steph and Mr.

Olynick says that she brought Steph up a couple of times but that he avoided the subject. [ 66 ] When confronted with the lubricant and condoms found in his duffle bag, Mr. Olynick tells Corporal Clarke that those items were aimed to facilitate his sexual encounter with the mom. [ 67 ] Corporal Clarke asks Mr. Olynick if there was a plan in place involving sexual activity with the child. Mr. Olynick says that he doesn’t remember texting about a plan involving the child, but that if he did do so, he was simply going along with the mom because he knew that she was enthusiastic about it. [ 68 ] Mr.

Olynick is told that Britt has confessed to the police that the plan was for Mr. Olynick, Britt, and Steph to go water sliding. After the water sliding, the three of them would go up to the hotel room and watch a movie. During the movie, Mr. Olynick and Britt would begin to fool around in front of Steph and maybe show her how to engage in sexual activity and see if she wanted to join in. Mr. Olynick admits that Britt texted about this plan but that he would never have gone through with it.

He says that he was hoping to have sex with Britt after Steph went to sleep, even though they would all be in the same king size bed. [ 69 ] Mr. Olynick admits to posting the advertisement on Craigslist specifically looking for a mother-daughter sexual encounter, but he says that his fantasy involves age-appropriate mothers and daughters. When he is pressed about whether Britt told him Steph’s age, Mr. Olynick says “Yeah I, I think so, I don’t know.” He then states that he told the officer what he needs to tell him. Later, Mr. Olynick admits he was told that Steph was eleven years old. [ 70 ] Mr.

Olynick insists that all of the communication regarding Steph was fantasy and role play, at least from his perspective. When Corporal Clarke asks Mr. Olynick if he ever specifically indicated that he was engaging in fantasy role play in any of his communications with Britt, Mr. Olynick says that he mentioned fantasies to her on multiple occasions. When he is confronted with Britt’s texts that this is real and not fantasy to her, Mr. Olynick says that he just ignored her statements. When Mr. Olynick is asked by Corporal Clarke if he thought it was fantasy for Britt, Mr.

Olynick says, “I don’t think so, now I don’t, now I know it wasn’t.” [ 71 ] Corporal Clarke recounts that at one point Mr. Olynick and Britt were texting about Christmas shopping. Then, Mr. Olynick abruptly texts her about the prospect of the sexual encounter between the two of them and Steph. When Corporal Clarke suggests that he changed the subject in this way because he was keen on including Steph in the sexual encounter, Mr. Olynick says that he knew Britt was interested in it, so he brought it up for her. [ 72 ] Corporal Clarke suggests that the nature of the plan involving Britt, her daughter, and Mr.

Olynick was not indicative of role playing, nor was the fear of getting caught expressed by Britt and Mr. Olynick. Corporal Clarke also says that Mr. Olynick’s specifically

communicated fear of going to jail is not suggestive of fantasy. In response, Mr. Olynick says that he was just in it for Britt and the statements were meant to arouse sexual feelings in Britt that would facilitate his encounter with her. Mr. Olynick is confronted with the proposition that Britt never says this is a fantasy, but he says he was just playing along and figured maybe she was just playing along too. [ 73 ] Near the end of the interrogation, Corporal Clarke and Mr. Olynick have the following exchange: Clarke: . . .

I’m not going to sit here and harp on you anymore obviously you’re going to stick with the, it was fantasy for you um but there is one thing that bothers me with that line of thought okay and if this was totally just fantasy for you and you were only looking to get in Britt’s pants, why would you bring up the yeah I can’t get caught or I’ll be in jail forever? Olynick: So she knew, so she thought I was serious too, just so she thought I was into it. [ 74 ] At his trial, Mr. Olynick does not testify, nor does defence counsel call any other evidence. IV.

ANALYSIS [ 75 ] Despite the fact that defence counsel essentially concedes that all of the elements of the s.172.2 offence have been established save the fault requirement, a brief examination of these other elements are in order. Mr. Olynick clearly used telecommunications, in the guise of a posted advertisement on Craigslist as well as emails and texts, to communicate with a person, namely Corporal Bonstrome- Peake, and there is no suggestion that this communication was not volitional on his part. [ 76 ] Arrangements are made by Mr.

Olynick with Corporal Bonstrome-Peake to commit the offence of invitation to sexual touching against Steph. The offence of invitation to sexual touching is contained in the following provision: 152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years, (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days. Mr. Olynick is repeatedly told that Steph is eleven years old. Yet he and Corporal Bonstrome-Peake, posing as Britt, discuss and ostensibly agree to having Steph watch them engage in sexual activity so as to make her more amenable to touching Mr. Olynick’s penis and to having the three of them engage in sexual activity together.

The two adults communicate about staging and executing this scenario at Britt’s house on New Year’s, presumably referring to New Year’s Eve, December 31, 2017. I have no hesitation in finding that these communications constitute a plan to commit the offence of invitation to sexual touching and that there is a professed acceptance of that plan by Mr. Olynick and Corporal Bonstrome-Peake. Therefore, these communications constitute the first arrangement made by Mr. Olynick. Later, Corporal Bonstrome-Peake suggests a slightly different plan involving Britt, Steph, and Mr.

Olynick water sliding at a hotel, engaging in a group shower afterwards, and then sharing a king size bed in the hotel room on December 21, 2017, and Mr. Olynick readily agrees to this new plan. The communications involving this new plan constitute a second arrangement made by Mr. Olynick within the meaning of s.172.2 of the Criminal Code . In both sets of communications there is a great deal of specificity about how the secondary offence will be committed, as Mr. Olynick and Corporal Bonstrome-Peake discuss how they are going to make Steph amenable to participating in sexual activities with them.

Moreover, the adults detail the locations and dates where and when the secondary offences are to be committed. [ 77 ] Defence counsel does not contest two aspects of the fault element of the offence charged, and for good reason. First, given the words communicated by Mr. Olynick during the entirety of this undercover investigation, including the words he texted, emailed, and spoke in person, the only reasonable inference to draw is that he intended to communicate the words that constituted the impugned arrangements. Secondly, in none of the communications engaged in by Mr.

Olynick with Britt does he ever question the age of the child, Steph, nor does he ever allude to the possibility that he did not believe that Steph was a real eleven-year-old child during his interrogation with Corporal Clarke. Therefore, the Crown has established beyond a reasonable doubt that Mr. Olynick believed that Steph was under age. [ 78 ] Defence counsel argues that Mr. Olynick made the impugned arrangements in order to sexually arouse Britt to engage in sexual relations with him and that he never had the intention of sexually touching or being touched by Steph.

In essence, defence counsel contends that what Mr. Olynick was engaging in was fantasy role play. However, during his interrogation with Corporal Clarke, Mr.

Olynick admits that he knew, or at least he was aware of the risk, that Britt was not engaging in fantasy role play. He also tells Corporal Clarke that his intention was that she take his communications pertaining to the arrangement seriously. When I consider the evidence as a whole, including the entirety of the communications engaged in between Mr. Olynick and Britt, specifically the tone and content of the communications, the fact that Mr. Olynick attempted to physically meet Britt on two occasions, and the items found in Mr.

Olynick’s possession when he was arrested, I have no hesitation in finding that whatever else Mr. Olynick’s intentions were when he made these arrangements, he at least intended that Britt take these words seriously. So even though Mr. Olynick may have communicated the arrangement with the intention of arousing sexual desire in Britt, because he intended to also induce in her the belief that the arrangement would actually be followed through upon, he was not engaged in the type of pure fantasy role play that would allow him to escape liability under s.172.2 . V. CONCLUSION [ 79 ] I find that Mr.

Olynick made two arrangements with Corporal Bonstrom-Peake, by means of telecommunication, to commit an offence under

section 152 of the Criminal Code against a person, Steph, who he believed was under the age of sixteen, and that he intended to make these arrangements. I am convinced beyond a reasonable doubt that, at the time that he made these arrangements, Mr. Olynick intended that the arrangements be taken seriously by Corporal Bonstrom-Peake posing as Britt. Mr. Olynick intended to induce in Britt the belief that the arrangement would actually be followed through upon. Consequently, he possessed the requisite guilty mind at the same time that he engaged in the prohibited acts. I therefore find that all of the elements of the offence under s.172.2(1) (

b) of the Criminal Code have been proven beyond a reasonable doubt and I find Mr. Olynick guilty of the offence charged. ______________________________ S.S. Anand, J.