Agree or Arrange a Sexual Offence Against Child (Offence)

Agree or Arrange Sex Offence Against Child
	s. 172.2 of the Crim. Code
Election / Plea
Crown Election	Hybrid; summary proceedings must initiate within 12 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.
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	Two years less a day incarceration
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	1 year incarceration
Maximum	14 years incarceration
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

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)	Preliminary Inquiry
s. 172.2 [agreeing or arranging a sexual offence against a child]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(14 years max)

Offences under s. 172.2 [agreeing or arranging a sexual offence against a child] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 172.2 [agreeing or arranging a sexual offence against a child]

When charged under s. 172.2 [agreeing or arranging a sexual offence against a child], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Fingerprints and Photos

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 criminal or regulatory prosecutions, 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 [agreeing or arranging a sexual offence against a child] 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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 172.2 [agreeing or arranging a sexual offence against a child]			/ (varies on facts) (by indictment only)

Offences under s. 172.2 [agreeing or arranging a sexual offence against a child] are designated offences eligible for wiretap under s. 183.

Offences under s. 172.2 [agreeing or arranging a sexual offence against a child] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 172.2 [agreeing or arranging a sexual offence against a child] 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".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

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) [sexual exploitation], section 155 [incest], 163.1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity] or 279.011 [trafficking in persons, under 18] or subsection 279.02(2) [material benefit from trafficking, under 18], 279.03(2) [withholding or destroying docs, under 18], 286.1(2) [comm. to obtain sexual services for consideration – person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18] with respect to another person who is, or who the accused believes is, under the age of 18 years;

(b) under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16] or section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault] or 280 [abduction of a person under 16] with respect to another person who is, or who the accused believes is, under the age of 16 years; or

(c) under section 281 [abduction of a person under 14] 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) [agree or arrange sexual offence against child – forms of offence]

(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.
[annotation(s) added]

– CCC

Note up: 172.2 (1) and (2)

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
		"..., contrary to section XX of the Criminal Code.

Proof of the Offence

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

Interpretation of the Offence

Fantasy and Roleplaying vs Reality

The analysis of the veracity of messages must be taken from the perspective of an "ordinary, reasonable person".^[1] The examination should be on the "context" and the "circumstances" in which teh messages were written and sent.^[2] The judge should attempt to decifer the party's state of mind and intention from the direct and circumstantial evidence.^[3] This will also consider the evidence of the party as to what they were actually intending.^[4]

↑ R v Jeffers, 2012 ONCA 1 (CanLII), at para 26
R v Tomasik, 2016 ONSC 3719 (CanLII), per Hennessy J, at para 36
↑ Jeffers, supra, at para 26
Tomasik, supra, at para 36
↑ Jeffers, supra, at para 26
Tomasik, supra, at paras 36 to 37
↑ Tomasik, supra, at paras 36 to 37

Presumptions

172.2
...

Presumption

(3) Evidence that the person referred to in paragraph (1)(a) [agree or arrange sexual offence against child – under 18 years], (b) [agree or arrange sexual offence against child – under 16 years] or (c) [agree or arrange sexual offence against child – under 14 years] 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; 2014, c. 25, s. 10; 2015, c. 23, s. 12.
[annotation(s) added]

– CCC

Note up: 172.2 (3)

Misc Definitions

see Wiretaps#"Telecommunications"

Defence

172.2
...

No defence

(4) It is not a defence to a charge under paragraph (1)(a) [agree or arrange sexual offence against child – under 18 years], (b) [agree or arrange sexual offence against child – under 16 years] or (c) [agree or arrange sexual offence against child – under 14 years] 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) [agree or arrange sexual offence against child – under 18 years], (b) [agree or arrange sexual offence against child – under 16 years] or (c) [agree or arrange sexual offence against child – under 14 years]

(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) [agree or arrange sexual offence against child – under 18 years], (b) [agree or arrange sexual offence against child – under 16 years] or (c) [agree or arrange sexual offence against child – under 14 years] did not exist.

2012, c. 1, s. 23; 2014, c. 25, s. 10; 2015, c. 23, s. 12.
[annotation(s) added]

– CCC

Note up: 172.2 (4) and (5)

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. x [x]

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 [agreeing or arranging a sexual offence against a child] From July 17, 2015	summary election	2 years less a day incarceration
s. 172.2 [agreeing or arranging a sexual offence against a child] From July 17, 2015	indictable election	14 years incarceration
s. 172.2 [agreeing or arranging a sexual offence against a child] August 9, 2012 to July 16, 2015	summary election	18 months incarceration
s. 172.2 [agreeing or arranging a sexual offence against a child] August 9, 2012 to July 16, 2015	indictable election	10 years incarceration

Offences under s. 172.2 [agreeing or arranging a sexual offence against a child] 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 [agreeing or arranging a sexual offence against a child] From July 17, 2015	summary election	6 months incarceration	Same
s. 172.2 [agreeing or arranging a sexual offence against a child] From August 9, 2012	indictable election	1 year incarceration	Same
s. 172.2 [agreeing or arranging a sexual offence against a child] August 9, 2012 to July 16, 2015	summary election	90 days incarceration	Same

Offences under s. 172.2 [agreeing or arranging a sexual offence against a child] have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 6 months incarceration 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. 172.2 [agreeing or arranging a sexual offence against a child]	any

Offences under s. 172.2 [agreeing or arranging a sexual offence against a child] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

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	For convictions under s. 172.2, as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
SOIRA Orders	s. 172.2(a), (b) or (c)	On conviction under s. 172.2(a), (b), or (c), a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]". If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2)) 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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
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(1) 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. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 172.2(1)(a) [agreement or arrangement – listed sexual offence against child under 18], 172.2(1)(b) [agreement or arrangement – listed sexual offence against child under 16], and 172.2(1)(c) [agreement or arrangement – listed sexual offence against child under 14] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

History of Agree or Arrange a Sexual Offence Against Child