Agree or Arrange a Sexual Offence Against Child (Offence)

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Agree or Arrange Sex Offence Against Child
s. 172.2 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 90 days incarceration
Maximum 18 months incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Section 172.2 describes the offence of Agreeing or Arranging a Sexual Offence Against a Child. It comes in three forms based on the age of the victim and offence contemplated. There is agreeing or arranging to commit offences under 153(1), 155, 163.1, 170, 171, 279.011, 279.02(2), 279.03(2), 286.2(2) or 286.3(2). They are all found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 172.2 [agreeing or arranging a sexual offence against a child] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 172.2 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
When charged under s. 172.2, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

A peace officer who charges a person under s. 172.2 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 172.2 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offences under s. 172.2 are designated offences eligible for wiretap under s. 183.

Offences under s. 172.2 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

Offences under s. 172.2 are "designated" offences under s. 752 for the purpose of dangerous offender applications.

Offence Wording

Agreement or arrangement — sexual offence against child
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

(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.

Punishment
(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 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 six months.

...
2012, c. 1, s. 23; 2014, c. 25, s. 10; 2015, c. 23, s. 12.


CCC

Proof of the Offence

Proving agree or arrange a sexual offence against child under s. 172.2 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit agrees or makes arrangement with a person;
  5. the agreement or arrangement concerns the commission of an enumerated offence
    1. under s. 172.2(a):
      1. sexual exploitation (153(1));
      2. incest (155);
      3. child pornography (163.1);
      4. parent or guardian procuring sexual activity (170);
      5. householder permitting sexual activity (171);
      6. trafficking of a person under the age of eighteen years (279.011);
      7. material benefit — trafficking of person under 18 years (279.02(2));
      8. withholding or destroying documents — trafficking of person under 18 years (279.03(2));
      9. Obtaining sexual services for consideration from person under 18 years (286.1(2));
      10. Material benefit from sexual services provided by person under 18 years (286.2(2));
      11. Procuring — person under 18 years (286.3(2));
    2. under s. 172.2(b), relating to person under 16 years:
      1. sexual interference (151);
      2. invitation to sexual touching (152);
      3. Bestiality in presence of or by child (160(3));
      4. Exposure (173(2));
      5. sexual assault (271);
      6. sexual assault with a weapon or causing bodily harm (272);
      7. aggravated assault (273); or
      8. Abduction of person under sixteen (280);
    3. under s. 172.2(c), relating to person under 14 years:
      1. Abduction of person under fourteen (281).
  6. the prohibited act was done "by means of telecommunication";

Interpretation of the Offence

Presumptions

172.2
...
Presumption
(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 or 14 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 that age.
...
2012, c. 1, s. 23.


CCC

Misc Definitions

Defence

172.2
...
No defence
(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 paragraph was 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.
No defence
(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 direction of 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 the direction of a peace officer, the person referred to in paragraph (1)(a), (b) or (c) did not exist.

2012, c. 1, s. 23.


CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences

Maximums

Offence(s) Crown
Election
Maximum Penalty
s. 172.2 [agree or arrange a sexual offence against child]
From July 17, 2015
Summary Election 2 years less a day custody
s. 172.2 [agree or arrange a sexual offence against child]
From July 17, 2015
Indictable Election 14 years custody
s. 172.2 [agree or arrange a sexual offence against child]
August 9, 2012 to July 16, 2015
Summary Election 18 months custody
s. 172.2 [agree or arrange a sexual offence against child]
August 9, 2012 to July 16, 2015
Indictable Election 10 years custody

Offences under s. 172.2 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.

Minimums

Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 172.2 [agree or arrange a sexual offence against child]
From July 17, 2015
Summary Election 6 months custody Same
s. 172.2 [agree or arrange a sexual offence against child]
From August 9, 2012
Indictable Election 1 year custody Same
s. 172.2 [agree or arrange a sexual offence against child]
August 9, 2012 to July 16, 2015
Summary Election 90 days custody Same

Offences under s. 172.2 have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 6 months jail when prosecuted by summary conviction.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 172.1 any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 172.2 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Young Victim
Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Ranges

see also: Agree or Arrange a Sexual Offence Against Child (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 172.2
SOIRA Orders s. 172.2(a), (b) or (c)
  • On conviction under s. 172.2(a), (b), or (c), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 172.2
  • If convicted under s. 172.2, the judge may make discretionary 161 Order.
Forfeiture Order (s.164.2) s. 172.2
  • must be "used" or "owned" by the offender in relation to a conviction of child pornography, child luring or arrange sex offence against a child

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments

See Also

References