R. v. Kerster

2001BCSC0230 Citation: R. v. Kerster Date: 20010208 2001 BCSC 230 Docket: CC000227 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

REGINA AND:

GEORGE HERMAN KERSTER

REASONS FOR JUDGMENT

OF THE

HONOURABLE MADAM JUSTICE NEILSON Counsel for the Crown: W. Kerr Clark Counsel for the Accused: J. Brian Jackson Date and Place of Hearing: January 18, 2001 Vancouver, B.C.

INTRODUCTION [1] The accused is charged under s. 212(4) of the Criminal Code that: at or near the City of Vancouver, Province of British Columbia, on or about the 12th day of January, 1999, he did obtain or attempt to obtain, for consideration, the sexual services of a person who he did believe was under the age of eighteen years. [2] Both the Crown and the defence proceeded on the basis that if the facts establish that the accused is guilty of an offence, it would be the attempted offence charged, rather than the completed offence. [3] The case for the Crown was presented entirely by admissions of fact. The defence called no evidence [4] The issue is whether the accused can be convicted of an attempt to commit the offence if the person under the age of 18 referred to in the indictment was fictitious.

THE FACTS [5] The admitted facts establish that in December 1999 the accused, using a false name, exchanged a number of e-mails with Detective Constable Headridge, a member of the Vancouver Police, who was also using a false name. In this e-mail correspondence, the accused expressed a desire to obtain the sexual services of a person under the age of 18 years for money. Detective Constable Headridge posed as the husband of a woman with three young children, and said that his wife was willing to meet with the accused to make final arrangements for him to have sex with her 11 year old daughter. Detective Constable Headridge described the girl as "curious" and "undeveloped". [6] The accused asked for pictures of the children, saying he would return the pictures promptly after viewing them. This request was refused by Detective Constable Headridge. [7] The accused and Detective Constable Headridge made arrangements for the accused to meet Daryl Heatherington, who posed as Detective Constable Headridge's wife and the mother of the three children, on January 12, 1999 at a McDonald's restaurant in Vancouver. [8] Ms. Heatherington and the accused met as planned. He identified himself to her as the person who had been involved in the e-mail correspondence with her husband. He told Ms. Heatherington that he was looking for straight sex, meaning sexual intercourse, with the girl. [9] Ms.

Heatherington told the accused that her daughter's name was Leez. She asked if the accused had brought the money, and the accused said yes. He reached into his shirt pocket and showed Ms. Heatherington what appeared to be several $100 Canadian bills. [10] The accused also told Ms. Heatherington he intended to delete all of his e-mail correspondence with her husband, and cautioned her to do the same with her husband's computer so there would be no problems. [11] Following this conversation, the accused accompanied Ms. Heatherington across the street to a hotel where she said Leez would be waiting in Room 326. They went to Room 326, where Ms. Heatherington tried her card in the door and found it would not work. She called "Leez, open the door". [12] A detective of the Vancouver Police Vice Squad opened the door, and arrested the accused. [13] The 11 year old girl, Leez, did not exist.

RELEVANT LEGISLATION [14] At the time of the alleged offence, subsections 212(4) and (5) of the Criminal Code, R.S.C. 1985, c. C-46 ("Procuring") read as follows: (4) Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person who is under the age of eighteen years or who that person believes is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. (5) For the purposes of subsection (4), evidence that the person from whom the sexual services were obtained or attempted to be obtained was represented to the accused as being under the age of eighteen years is, in the absence of evidence to the contrary, proof that the accused believed, at the time the offence was alleged to have been committed, that the person was under the age of eighteen years. [15] Section 24 of the Criminal Code deals with attempts. It states: 24.(1) Attempts - Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. (2) Question of law - The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

ANALYSIS [16] The accused argues that the existence of a real person from whom sexual services may be obtained is an essential element of the offence created by s. 212(4). If that person does not exist, he cannot be convicted of the offence itself, nor of an attempt to commit the offence. [17] Section 212(4) incorporates both an attempt and a completed offence in its wording. The argument proceeded on the basis that the elements of an attempted offence set out in s. 24 apply to this specific attempt, and I accept that. [18] The elements of a criminal attempt were set out by McIntyre J. in Regina v. Ancio (1984), 10 C.C.C. (3d) 385 (S.C.C.) at p. 401: ...in common law and under the criminal law of Canada criminal attempt is itself an offence separate and distinct from the crime alleged to be attempted. As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea. [19] In Regina v. Loewen, [1996] M.J. No. 506 (Q.L.) (Man.Q.B.), Hamilton J., after citing Regina v. Ancio, made the following observation at para 32: The law of attempt is a separate offence which by its nature may be completed without all elements of the completed offence. Intention is

the focus of the offence. And, of course, some elements of the completed offence are required beyond mere preparation. The trial judgment was overturned on an unrelated ground, (1997) 122 C.C.C. (3d) 198 (Man.C.A.). [20] The Crown says that here the accused clearly had the intent to commit the offence and, during argument, the accused conceded that he took steps beyond mere preparation. That is the end of the matter. The accused is guilty even though it was not possible to complete the offence because the girl, Leez, did not exist. The Crown need not establish all of the elements of the offence to obtain a conviction for an attempted offence. [21] The Crown says that the accused is trying to recast the defence of impossibility as an absence of an essential element. This cannot succeed in view of the majority decision in United States of America v. Dynar (1997), 115 C.C.C. (3d) 481 (S.C.C.). In Dynar, the accused was charged in the United States with an attempt to launder money, and the American government sought his extradition. He had been the target of an FBI sting operation. A police informer called him in Canada and asked if he would launder drug money obtained from illegal trafficking in the United States. Mr. Dynar agreed to do so. In fact, the money which the FBI planned to transfer to him was "clean" money, which had not been obtained from criminal activities. No

transfer of money actually took place and Mr. Dynar was arrested in Canada. [22] The issue was whether Mr. Dynar's conduct would also constitute a crime under Canadian law if it were carried out in Canada, thereby satisfying the requirement of double criminality for extradition. In the United States, the offence of money laundering is made out if a person acts on a representation that the money is proceeds of crime, whether or not it actually is. In Canada, the crime requires that the money actually be proceeds of crime. Mr. Dynar raised the defence of impossibility. He took the position that his actions could not be a crime in Canada because the money involved was "clean" money. It was therefore impossible to find him guilty of any completed offence under Canadian law. If he could not be guilty of the completed offence, he argued that he could not be guilty of an attempt to commit the same offence. [23] The issue framed by the court was whether an accused who attempted to do the impossible may be found guilty of an attempt. The majority answered this question affirmatively, and found that while Mr. Dynar could not have been convicted of the completed offence, he would be guilty of an attempt to launder money in Canada on the basis of s.

24. At para. 50 Iacobucci J. made the following observation: In our view, s. 24(1) is clear: the crime of attempt consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt. This proposition finds support in a long line of authority. . . . In this case, sufficient evidence was produced to show that Mr. Dynar intended to commit the money-laundering offences, and that he took steps more than merely preparatory in order to realize his intention. That is enough to establish that he attempted to launder money contrary to s. 24(1) of the Criminal Code. [24] At para. 62 he went on to consider the distinction between factual and legal impossibility and concluded it was not tenable: There is no legally relevant difference between the pickpocket who reaches into the empty pocket and the man who takes his own umbrella from a stand believing it to be some other person's umbrella. Both have the mens rea of a thief. The first intends to take a wallet that he believes is not his own. The second intends to take an umbrella that he believes is not his own. Each takes some steps in the direction of consummating his design. And each is thwarted by a defect in the attendant circumstances, by an objective reality over which he has no control: the first by the absence of a wallet, the second by the accident of owning

the thing that he seeks to steal. [25] He did, however, find a valid distinction between a failed attempt to do something that is a crime and an imaginary crime, stating at paras. 65 - 67: It is one thing to attempt to steal a wallet, believing such thievery to be a crime, and quite another thing to bring sugar into Canada, believing the importation of sugar to be a crime. In the former case, the would-be thief has the mens rea associated with thievery. In the latter case, the would-be smuggler has no mens rea known to law. Because s. 24(1) clearly provides that it is an element of the offence of attempt to have "an intent to commit an offence", the latter sort of attempt is not a crime. Nor should it be. A major purpose of the law of attempt is to discourage the commission of subsequent offences. . . . But one who attempts something that is not a crime or even one who actually does something that is not a crime, believing that what he has done or has attempted to do is a crime, has not displayed any propensity to commit crimes in the future, unless perhaps he has betrayed a vague willingness to break the law. Probably all he has shown is that he might be inclined to do the same sort of thing in the future; and from a societal point of view, that is not a very worrisome prospect, because by hypothesis what he attempted to do is perfectly legal. Therefore, we conclude that s.

24(1) draws no distinction between attempts to do the possible but by inadequate means, attempts to do the physically impossible and attempts to do something that turns out to be impossible "following completion". All are varieties of attempts to do the "factually impossible" and all are crimes. Only attempts to commit imaginary crimes fall outside the scope of the provision. Because what Mr. Dynar attempted to do falls squarely into the category of the factually impossible -- he attempted to commit crimes known to law and was thwarted only by chance -- it was a criminal attempt within the meaning of s. 24(1). [26] At paras. 71 and 73, the majority used the example of attempted murder to support their conclusion that an attempt is by its nature an incomplete offence, and the actus reus will always be deficient: In this, the money-laundering offences are no different from other offences. Murder is the intentional killing of a person. Because a person cannot be killed who is not alive, and because a killing, if it is to be murder, must be intentional, it follows that a successful murderer must believe that his victim is alive. An insane man who kills another believing that the one he kills is a manikin does not have the mens rea needed for murder. Thus, the successful commission of the offence of murder presupposes both a belief that the victim is alive just before the deadly act

occurs and the actual vitality of the victim at that moment. Both truth and belief are required. Therefore, knowledge is required. But this does not mean that the vitality of the victim is part of the mens rea of the offence of murder. Instead, it is an attendant circumstance that makes possible the completion of the actus reus, which is the killing of a person... The absence of an attendant circumstance is irrelevant from the point of view of the law of attempt. An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission. Because an attempt is in its very nature an incomplete substantive offence, it will always be the case that the actus reus of the completed offence will be deficient, and sometimes this will be because an attendant circumstance is lacking. [27] At para. 74 the majority concluded that the law of attempt is engaged only when the mens rea of the completed offence is present entirely, and the actus reus is present in an incomplete but more-than-merely-preparatory way. Accordingly, Mr. Dynar could be found guilty of attempting to launder the proceeds of crime in Canada, even though the money in question was not the proceeds of crime and it was therefore not possible to complete the offence in Canada. Impossibility of completion was not a defence. [28] The Crown says the present case is exactly

analogous to Dynar. While the actus reus of s. 212(4) could not be completed as a girl under 18 did not exist to provide the sexual services, the accused is nevertheless guilty of an attempt to commit the offence. He had the mens rea of the completed offence, and concedes that he took steps that went beyond mere preparation in carrying out his intention to commit the crime. The situation is identical to Mr. Dynar's conviction for attempted money laundering with clean money, or to the pickpocket's conviction for attempted theft when he reached into an empty pocket and recovered nothing. Although these offenders could not complete the offences because of a deficiency in the actus reus, they were nevertheless guilty of criminal attempts. Here, the absence of an 11 year old girl in the hotel room is a deficiency in the actus reus, making completion of the offence impossible, but the accused must still be convicted for attempting to obtain, for consideration, the sexual services of a person represented to him as being under 18. [29] The Crown has cited other cases as well in which the absence of an essential element of the actus reus precluded the commission of the completed offence, but the accused was nevertheless convicted of an attempt. For example, in Regina v. Dalaney and Budge (1982), 69 C.C.C. (2d) 276 (Alta. Q.B.), money taken in a bank robbery had been hidden in a bag in a

garbage can. The police recovered the bag, replaced the money with paper, and put the bag back in the can. The accused removed the bag and were apprehended. They were charged with attempting to have in their possession cash belonging to the bank and therefore stolen. They argued the offence was impossible as at the time of their possession the cash had already been recovered by the police and was no longer stolen. They were nevertheless found guilty of attempted possession of stolen property under s. 24 on the basis that they had the requisite intent, and had taken action to carry out that intent. [30] The Crown argues that in each of these cases, an element of the actus reus was missing. The courts nevertheless convicted the accused of an attempted offence based on his intent and acts taken in furtherance of that intent. The Crown urges the same result here. [31] The accused responds that he is not basing his defence on the concepts of legal or factual impossibility, or imaginary crime, which are dealt with in Dynar and the other cases cited by the Crown. His point is more fundamental: there are some essential elements in any crime which, if absent, must preclude a conviction for attempting that crime. For example, the accused says that a person could not be convicted of attempted sexual assault against an imaginary victim. By analogy, he argues that he cannot be convicted of

attempting to obtain sexual services for consideration from the fictitious child here. [32] He says that the cases put forward by the Crown are all distinguishable as they involve factual scenarios where the person or object which is the subject of the indictment exists in some form, and the argument is with respect to the nature or characteristics of the person or thing; for example, clean money versus laundered money, paper versus money, or a dead person versus a live person. [33] The accused says that this case would be analogous to those if an undercover police officer had posed as a person under 18 from whom he might obtain sexual services. The requirement of an actual person as an element of the offence would then be satisfied, and he could not argue that the Crown had failed to establish this essential element. He argues that this case is not about mistaken characteristics. Here, there is a complete void with respect to a fundamental aspect of the offence. The putative victim does not exist, and it is not possible to convict him of attempting to obtain sexual services from a fictitious person. [34] He cites Regina v. Davie (1980), 54 C.C.C. (2d) 216 (B.C.C.A.), and Regina v. Sullivan (1988), 43 C.C.C. (3d) 65 (B.C.C.A.); (1991), 63 C.C.C. (3d) 97 (S.C.C.) as cases which support his view that the word "person" in s. 212(4) must be given its natural meaning, and must refer

to a real person. He also relies on Regina v. Cole (1982), 37 O.R. (2d) 144 (Ont. D.C.), Regina v. Hall (1984), 12 C.C.C. (3d) 93 (Ont. C.A.), and Regina v. Northrup (1982), 1 C.C.C. (3d) 210 (N.B.C.A.), cases in which the accused were acquitted of impersonation because the people they impersonated were fictitious. [35] I do not find these cases dealing with the definition of "person" persuasive on the issue I must decide. First, it is evident that the term "person" in the Code does not always refer to a real person, and its meaning may vary with its context: Regina v. Sharpe, 2001 SCC 2 at paras. 37 and 38. Second, the cases dealing with fraudulent impersonation are of little assistance as the offence refers specifically to impersonating "any person, living or dead", making it clear that a fictitious person cannot be part of the actus reus. Third, these cases all dealt with charges of completed offences, not attempts. As a result, they are of little assistance in rebutting the Crown argument based on Dynar and the absence of an element of the actus reus in an attempted offence. [36] In my view, in arguing that a real person is an essential element to a conviction for attempting this offence, the accused is really putting forward the view of the minority in Dynar. That judgment, authored by Major J., concluded that there must be an underlying offence capable of being committed

before one can consider the elements of the attempted offence. If there is no underlying offence, there can be no attempt, as one cannot be a party to a non-existent offence. The minority expressed a concern that if a defence of impossibility does not lie, an accused may be convicted based on his mistaken belief in an untrue set of facts. [37] With respect to Mr. Dynar's specific circumstances, Major J. states at para 167: ... it does not logically, on the plain meaning of the word, make sense to say the respondent attempted to launder the proceeds of crime. The respondent only attempted to launder what the F.B.I. provided. It presumably made no difference to him whether the money to be laundered was from crime or legal activity. In fact, what he attempted to do was launder money that was not tainted. There was no offence that could be committed. The laundering of legal proceeds is an imaginary crime. [38] In my view, this is the approach which the accused is advocating here. He says he only attempted to obtain sexual services from a fictitious person created by the police. There was no offence that could be committed, and it is an imaginary crime. [39] The majority judgment in Dynar clearly rejects this approach, and I am bound to follow it. The absence of a little girl here, like the absence of the laundered money in Dynar, may make it impossible to commit the completed

offence, but I find that does not preclude a conviction for attempting to commit the offence. [40] The accused's argument that a conviction for attempted sexual assault requires a real victim, and thus a conviction for an attempt to obtain sexual services under s. 212(4) must have the same requirement, is superficially attractive. However, in my view the appropriate place to consider that analogy is in the analysis of the actus reus required by s. 24, and the question of whether the accused has taken steps beyond mere preparation in carrying out his intention to commit the crime. I deal with this issue later in these reasons. [41] Having found that a real person is not an essential element of an attempt to commit the crime set out in s. 212(4), I must still determine whether the Crown has established the elements of criminal attempt required by s. 24 beyond a reasonable doubt. First, did the accused have the necessary intent to commit the offence? Second, did he take steps beyond mere preparation for the purpose of carrying out that intent? [42] Dealing first with the mental element, the admitted facts leave me with no doubt that the accused had the necessary criminal intent. He expressed his desire to obtain the sexual services of a young child for money to Detective Constable Headridge in their e-mail correspondence. The child was represented to him as 11 years old, curious,

and undeveloped. He arranged a meeting with the supposed mother of the child, and told her he wanted to have intercourse with the girl. He showed her that he had brought a significant amount of money with him for that purpose. He told her he would be erasing the e-mail correspondence from his computer and urged her to do the same. He then went to the hotel room where the girl was supposed to be waiting. [43] I have no doubt in finding on these facts that the accused intended to obtain, for consideration, the sexual services of a person whom he believed to be under the age of 18 years. The fact that this person did not exist is irrelevant to his state of mind. He believed that she did, and all of his actions bespeak his intent to pay to have sexual intercourse with her. As Iacobucci J. stated at para. 63 of Dynar, "...intention is one thing and truth is another. Intention has to do with how one sees the world and not necessarily with the reality of the world." [44] With respect to the actus reus, the Crown must prove that the accused took steps beyond mere preparation in furtherance of his criminal objective. The accused conceded during argument that he did so. The Crown says that this concession, together with the finding on mens rea, are sufficient to result in a conviction for criminal attempt. [45] However, under s. 24(2) the question of whether an act or omission is mere

preparation to commit the offence is a question of law. I must therefore consider whether the admission made by the accused in this regard is appropriate on the facts of this case. [46] Meehan & Currie, The Law of Criminal Attempt, 2nd ed. (Carswell,2000) at pp. 191 - 193 comment on the lack of clear guidelines to this element of section 24. They acknowledge that such imprecision is perhaps necessary given the disparity of offences and facts, but formulate a suggested guideline based on a test of proximity which I find of assistance: The actus reus of attempt requires an act done with intent to commit an offence, the act being a step towards the commission of the offence, which is immediately and not merely remotely connected with the commission of the offence, the doing of which, together with all the admissible facts, circumstances, and statements, cannot beyond a reasonable doubt be regarded as having any other purpose than the commission of the offence ... [47] The accused has argued that a real person is an essential element of the offence of attempted sexual assault, and he could not be convicted of that offence if the victim were fictitious. He says that by analogy, a real person must be an essential element of a criminal attempt to obtain sexual services for consideration of a person believed to be under 18. In my view, this argument does not withstand close analysis.

It ignores a fundamental distinction between the actus reus of each of these offences, and the related issue of what constitutes acts beyond mere preparation in an attempt to commit each. [48] The actus reus of sexual assault involves forced sexual activity against a person without his or her consent. I find it impossible to conceive of actions that could go beyond mere preparation to commit that crime which would not require the presence of an actual victim as their target. The presence and state of mind of the victim are essential to the steps to carry out the intent. Thus the Crown would be unable to establish the actus reus of attempted sexual assault without the presence of a real person. [49] On the other hand, the actus reus of an attempt to commit the offence with which the accused is charged is to my mind the obtaining of sexual services for consideration from a person represented to be under 18, in the sense of procuring the services. The state of mind of the young person and the actual performance of the sexual services are not critical to the actus reus of the attempt. Thus an accused can take steps beyond mere preparation, such as negotiating and paying for the services, without the presence of an actual person to perform them. [50] I pause to note that the Crown is of the view that the presence of a real person would be required to complete the offence under s.

212(4). I question whether that is so, but as this case has proceeded solely on the basis of an attempted offence, I need not comment further on this. [51] I am satisfied beyond a reasonable doubt that the accused performed steps beyond mere preparation to carry out his intent here. He embarked on negotiations to pay for the sexual services of a person under 18 in his e-mail correspondence. He specified the services he wished her to perform, and produced money to pay for these. He then accompanied the "mother" of the girl to meet her. In my view, it matters not whether the hotel room contained an 11 year old girl, an adult police officer posing as a young girl, or no girl at all. His actions were unambiguous and constituted legally sufficient steps going beyond mere preparation to commit the offence set out in s. 212(4). [52] I find the Crown has therefore established the necessary mens rea and actus reus, and the accused is accordingly guilty of attempting to obtain, for consideration, the sexual services of a person who he believed to be under the age of 18 years. "K.E. Neilson, J." The Honourable Madam Justice K.E. Neilson