Court of Appeal for Ontario
Hourigan, Miller and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Akash Ghotra
Appellant
Alan D. Gold and Laura J. Metcalfe, for the appellant
Katie Doherty, for the respondent
Heard: February 18, 2020
On appeal from the conviction entered on May 3, 2016 by Justice Bruce Durno of the Superior Court of Justice, sitting without a jury, with reasons reported at [2016] O.J. No. 7161, and from the dismissal of an application for a stay of conviction on September 13, 2016, with reasons reported at 2016 ONSC 5675, 342 C.C.C. (3d) 128.
1The appellant, a 26-year-old medical student, started a conversation in an internet chat room with “mia_aqt98” in November 2012. He asked for her age, sex, and location. “Mia” answered that she was a 14-year-old girl. Within minutes, the appellant turned the conversation explicitly sexual. They chatted on and off over four days, culminating in his proposal they meet up for sex. In reality, “Mia” was an online persona created by a Peel Regional Police officer as part of an investigation by the Internet Child Exploitation Unit (ICE) into online child luring. When the appellant attended at an agreed meeting place, he was arrested. He gave a police statement shortly after speaking with duty counsel.
2The appellant was convicted of internet child luring, contrary to s. 172.1(1)(b) of the Criminal Code. He received a six-month custodial sentence. At the close of the trial, the appellant brought an application for a stay on the basis of entrapment. The application was denied: 2016 ONSC 5675, 342 C.C.C. (3d) 128 (“Entrapment Ruling”). He appeals against conviction on the bases of entrapment and a violation of his right to counsel under s. 10(b) of the Charter of Rights and Freedoms.
3For the reasons that follow, I would dismiss the appeal.
A. Background
4Police Constable Hutchinson worked in the ICE Unit of Peel Regional Police. Her responsibilities included investigating the exploitation of children on the internet. Her method of investigation was to adopt the persona of a child and engage in chats with unknown persons online.
5PC Hutchinson created a Yahoo Messenger account with the username “mia_aqt98”. She testified that she chose “Mia” to indicate that she was female, that the abbreviation “aqt” meant “a cutie”, and that “98” suggested a year of birth of 1998, which at the time of the offence would have indicated an age of 14 years. The public profile she created, which was visible to other users, displayed her name as Mia Andrews, age 19, with date of birth November 10, 1993. One of Yahoo’s conditions of use was that participants attest to being 18 years of age or older.
6On November 27, 2012, when PC Hutchinson logged into a chat room called “Toronto Global Chat 1”, the appellant was already logged in. Like any other user logged in at that time, he received an automatic notification that mia_aqt98 had logged in and was now present in the chat room.
7The appellant initiated a private conversation, outside the chat room, with “hi” and “asl?”, meaning age, sex, and location. Mia_aqt98 answered, “14”, “f” and “brampton”, meaning 14 years old, female, and living in Brampton.
8The appellant asked if Mia wanted to go to a movie, and Mia declined, saying “i dont even kno u” and “i nvr chilled wit an older boy b4”. The appellant volunteered that he was a medical student, with his own car, and living on his own. Mia asked the appellant if he saw that she was 14. He replied “yeah yeah. thats cool” and “we can be friends”.
9The appellant then asked Mia why she didn’t have a boyfriend, whether she liked anyone from school. He then turned the conversation explicitly sexual, asking about her sexual experience, whether she masturbated. Over the next few days, he returned to the themes of masturbation and pornography, offered to coach her on how to masturbate, and described what he would like to do with her sexually. He sent her a link to a pornographic video of a couple engaged in intercourse, assured Mia that the woman in the video was “loving it”, and that in any event they would not start off with intercourse right away. When she expressed reticence because of her young age, he was reassuring: “u want for ur first time sex to be with someone older than u/ who knows what he is doing”. When he asked if she had told anyone about him, she said no. When she asked if the appellant had told anyone about her, he replied “not yet.. they will be all lik u r dating such a yound girl”.
10On November 29, 2012, the appellant asked to meet Mia, and she agreed to skip school and meet him at her apartment the next day. On November 30, 2012, the two had further text communications. Mia asked the appellant to meet at her apartment. He told her he would meet her in the lobby. When he texted from the lobby, police officers arrested him.
11After speaking with duty counsel, the appellant gave a police statement in which he discussed his chat conversations with Mia. In a pre-trial voir dire, the trial judge found the police statement to be admissible under s. 24(2) of the Charter, dismissing almost all of the appellant’s arguments that the statement was involuntary or proffered in breach of his rights under Charter ss. 10(a) and (b): [2015] O.J. No. 7328 (S.C.) (“Statement Ruling”).
12At trial, the appellant acknowledged his participation in the chats, but claimed that he believed he was communicating with an adult engaged in role-playing. He testified that he had no intention of engaging in sexual activity with someone underage.
13The trial judge rejected the appellant’s evidence. He was satisfied beyond a reasonable doubt that the appellant believed he was communicating with an underage person, and that the communication was for the purpose of committing sexual touching.
B. The Entrapment Application
14Upon conviction, the appellant brought an entrapment application to stay proceedings. He argued that PC Hutchinson lacked the requisite grounds to “offer an opportunity” to commit an offence by posing as a 14-year-old girl. The trial judge dismissed the application on the basis that (1) PC Hutchinson did not “offer an opportunity” for the appellant to commit the offence, and (2) if there was an opportunity offered, it was made in the course of a bona fide investigation.
15For the reasons given below, I would dismiss the appeal on the basis that the trial judge did not err in concluding that the officer did not provide an opportunity to commit an offence. It is therefore unnecessary to address the issue of whether there was a bona fide investigation.
16The defence of entrapment flows from the doctrine of abuse of process. It is not a substantive defence to allegations of criminal wrongdoing, but instead allows for a conviction to be stayed where the investigative conduct of the police was exploitative or corrupting. As the Supreme Court explained in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, “[i]n certain cases the police conduct will be offensive because it exploits human characteristics that as a society we feel should be respected”: at p. 963. The court provided the following example of police conduct that would constitute entrapment, at p. 963:
[I]f the law enforcement officer or agent appeals to a person’s instincts of compassion, sympathy and friendship and uses these qualities of a person to effect the commission of a crime, we may say this is not permissible conduct because it violates individual privacy and the dignity of interpersonal relationships, and condemns behaviour that we want to encourage.
17This court recently summarized the branches of the entrapment doctrine in R. v. Ahmad, 2018 ONCA 534, 141 O.R. (3d) 241, at para. 32, rev’d in part but not on this point, 2020 SCC 11:
In Mack, at pp. 964-65, the Supreme Court set out the two principal categories of entrapment. The defence is available when either:
“the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry”; or
“although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.”
18At para. 31 of Ahmad, this court explained the onus on the accused in an entrapment application:
[G]iven the serious nature of an entrapment allegation and the substantial leeway given to the state to develop techniques to fight crime, a finding of entrapment and a stay of proceedings should be granted only in the “clearest of cases”: Mack, at pp. 975-76. The accused must establish the defence on a balance of probabilities: Mack, at p. 975.
19In R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449,the Supreme Court affirmed the “basic rule” articulated in Mack, that “the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity”: at p. 463. It also affirmed an exception to this rule where police are undertaking “a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring”: at p. 463. Where police neither have reasonable suspicion of an individual already engaged in crime, nor are investigating a location that is reasonably suspected of being a hub of criminal activity, presenting an opportunity to commit a particular crime amounts to random virtue testing, and is not permitted. The Supreme Court most recently affirmed these principles in Ahmad, in which a majority of the court held that the entrapment framework from Mack has “stood the test of time” and applies with full force to contexts such as child luring: at para. 23.
20In this appeal, there was no allegation that the police acted in a way to induce the appellant to commit an offence. The application turned solely on the first branch: whether the police provided the appellant with an opportunity to commit an offence, and if so, whether the police were undertaking a bona fide investigation in an area where they had a reasonable suspicion that crime was occurring. It is common ground that the police had no individualized reasonable suspicion that the appellant himself was engaged in criminal activity when PC Hutchinson responded to his question “asl?”.
21Much of the entrapment case law focuses on the distinction between presenting an individual with an opportunity to commit an offence, and merely taking a step in investigating criminal activity. The former is entrapment unless the police first have reasonable suspicion. The latter is permissible police conduct.
22The case law has struggled to articulate the basis for the distinction, preferring to make concrete factual findings about what has constituted an opportunity and what has not. This court recognized that the distinction will “sometimes be difficult to draw”: R. v. Bayat, 2011 ONCA 778, 108 O.R. (3d) 420, at para. 19. One source of the difficulty is that, conceptually, providing an individual with an opportunity to commit an offence is, in a literal sense, a step in investigating criminal activity. If such a broad conception of “providing an opportunity” were to be adopted, the distinction would collapse. As one commentator has pointed out, “the mere presence of a plainclothes officer creates an opportunity, loosely defined, for someone to offer them illegal drugs and thereby commit an offence”: Brent Kettles, “The Entrapment Defence in Internet Child Luring Cases” (2011) 16 Can. Crim. L. Rev. 89, at p. 91.
23The case law, however, has specified a narrow conception of “providing an opportunity,” with the analysis often focusing on whether the police or the accused took the initiative in the interaction and when: Bayat; R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131; R. v. Swan, 2009 BCCA 142, 244 C.C.C. (3d) 198. The narrow conception of “providing an opportunity” excludes investigative techniques where the originating criminal spark comes from the accused.
24The trial judge held that the police did not provide an opportunity to commit the offence. At paras. 51-55 of the Entrapment Ruling, he pointed to several facts in support of this conclusion, including:
(1) it was the appellant who initiated the conversation with Mia;
(2) it was the appellant who asked Mia’s age; and
(3) it was the appellant who, being repeatedly told Mia was 14, turned the conversation to sexual inquiries.
25The trial judge drew support from Bayat for the proposition that where it is the accused who takes the lead in conversation and turns it toward the commission of an offence, the police have not provided the accused with an opportunity to commit the offence: Entrapment Ruling, at para. 54; Bayat, at para. 21.
26The appellant argues that the trial judge used an inappropriately narrow conception of providing an opportunity. The appellant argues that the conception of an opportunity to commit an offence from Mack is the mere chance to commit an offence, such that the moment the appellant was confronted with a 14-year-old girl in a place where he had no reason to expect to meet a 14-year-old girl, he was provided with an opportunity to commit an offence. But for the presence of a 14-year-old girl in an adult chat room, he argues, he would not have had an opportunity to commit the offence of luring a 14-year-old girl.
27In support of the argument for this broad conception of providing an opportunity, the appellant argues that on the narrower conception, the category of taking an investigative step would expand and the category of providing an opportunity would effectively disappear. The entrapment doctrine would collapse into inducing the offence, which is always prohibited, and taking an investigative step, which is generally permitted even without reasonable suspicion.
28The broad conception of “providing an opportunity” advanced by the appellant is a lonely one, unsupported by the case law and conflicting with binding authority. On this basis alone, the appeal must fail.
29Providing an opportunity is not established by but-for causation – that but for the presence of the investigating officer posing as a 14-year-old girl, the appellant would not have had the opportunity to commit the offence. In Ahmad, this court cautioned against “an overly technical approach to the entrapment doctrine” that detaches the doctrine from its purpose of preventing police investigations that offend against decency and fair play: at para. 39.
30In Ahmad, the Supreme Court held that in order to allow the police flexibility to investigate crime, an officer’s actions must be “sufficiently proximate to conduct that would satisfy the elements of the offence” in order to constitute an opportunity: at para. 64. In this case, the offence was not in talking with a 14-year-old girl. The offence was communicating with a child for the purposes of committing an offence, such as sexual touching. The appellant’s argument could only succeed, it seems to me, in a world where any 14-year-old girl who agrees to chat on-line with an adult male in a general interest chat room thereby communicates that she is potentially receptive to a sexual encounter. That is not our world.
31Accordingly, I do not agree that the trial judge committed any error. Where, as here, the police conduct is nothing other than placing a potential victim in an accused’s line of vision, and where the accused is given no reason to believe that the victim would be a willing participant in the offence committed, the police have not provided an opportunity to commit an offence. It was the appellant who initiated contact with the undercover officer masquerading as a 14-year-old girl. It was the appellant who sought to ascertain her age. Having learned that she was underage, it was the appellant who ventured into sexual topics and suggested an in-person meeting. Throughout these interactions, the undercover officer repeatedly raised the issue of the fictional victim’s youth, but the appellant persisted.
32I would dismiss this ground of appeal.
C. Section 10(b) Right to Counsel
33Section 10(b) of the Charter provides a detained person with the right “to retain and instruct counsel without delay and to be informed of that right”. In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, the Supreme Court specified that this right imposes the following requirements: (1) informational: to advise the detainee of the right to retain and instruct a lawyer without delay, and of the existence and availability of legal aid and duty counsel; (2) implementational: where the detainee indicates a desire to exercise the right, to provide a reasonable opportunity; and (3) forbearance: to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to exercise the right.
34The purpose of the s. 10(b) right is to guard against the risk of involuntary self-incrimination and ensure that a choice to speak to police is free and informed: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21.
35The appellant argues that the trial judge erred in finding that the police did not infringe the appellant’s s. 10(b) rights. The arresting officer initially provided the appellant with an abbreviated instruction on his s. 10(b) rights because the appellant was in a highly emotional state and the officer was concerned that he would not be able to track the standard caution. The officer advised the appellant that if he did not have his own lawyer (which he did not), the police would call duty counsel for him. Minutes later, another officer read the standard caution to the appellant, which informed the appellant that he could speak with any lawyer of his choosing. The appellant then spoke with duty counsel.
36Subsequently, in an interview with police, the appellant returned to the issue of consulting counsel. He relayed information he received from duty counsel that if he wanted to, he was entitled to look in a directory and choose his own lawyer. He asked if he was entitled to make more than one call, which set up the following exchange:
Cst. Ullock: You’re, you’re entitled to speak to a lawyer okay, if there is a specific lawyer that you want to talk to…
Appellant: I have, I don’t have any.
Cst. Ullock: Yeah like if you say here is the name of a lawyer I want to talk to him.
Appellant: Okay.
Cst. Ullock: … then you can you know.
37On a voir dire, the trial judge agreed that the initial advice that the appellant received was incorrect, in that it omitted that in addition to accessing duty counsel, he also had the option to search for a lawyer of his own choosing: Statement Ruling, at para. 76. He found, however, that the advice the appellant received minutes later from another officer remedied the defect and properly conveyed to the appellant that he could contact any lawyer: at paras. 83-84.
38The appellant argues that the trial judge erred in finding that the police had satisfied the informational component of the s. 10(b) right. He argues that he ought to have been told that he had the option of looking up a lawyer for himself, and the police ought to have facilitated the exercise of this right by providing him with a directory. He only discovered he had the right to choose his own lawyer when so advised by duty counsel, but was then rebuffed by Cst. Ullock when he tried to make this request.
39The trial judge was satisfied that when the totality of the circumstances were considered – including the appellant’s initial emotional state, the fact that the information he received was initially incomplete, and that he was subsequently provided with a standard caution and spoke to duty counsel – the appellant had not misunderstood his rights.
40This finding by the trial judge, that the appellant had not misunderstood his rights and chose to speak with duty counsel, was open to him. The onus was on the appellant to establish that he misunderstood his rights such that s. 10(b) was infringed. He did not testify on the voir dire. The trial judge found that he did not, in his conversations with Cst. Ullock, convey dissatisfaction with the advice he had received from duty counsel or confusion about his right to counsel: [2015] O.J. No. 7328, at paras. 82, 95.
41The appellant did not request access to a directory or phone book in which to search for counsel. In the circumstances, as he had already spoken to duty counsel and understood that he was free to find a lawyer of his choosing, I am not persuaded that the police breached the appellant’s rights in not offering him a directory.
42I would not give effect to this ground of appeal.
D. Disposition
43I would dismiss the appeal.
“B.W. Miller J.A.”
“I agree. C.W. Hourigan J.A.”
Nordheimer J.A. (dissenting)
44I have reviewed my colleague’s reasons. I agree with his analysis and conclusion regarding the s. 10(b) issue. However, I disagree with his conclusion on the entrapment issue. Consequently, I would allow the appeal, set aside the conviction, and enter a stay of proceedings.
45My colleague has set out the background facts, so I do not need to repeat them.
46There is agreement on which of the branches of entrapment laid out in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903,is at issue in this case. It is the first branch, which Lamer J. stated in the following terms, at p. 964:
the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry[.]
Opportunity to commit an offence
47The first question then is whether the officer provided the appellant with an opportunity to commit an offence. As this court recognized in R. v. Bayat, 2011 ONCA 778, 108 O.R. (3d) 420, at para. 19:
The issue is a difficult one and the line between simple investigation and offering an opportunity to commit an offence will sometimes be difficult to draw.
48My colleague concludes that that line was not crossed. I disagree. In my view, the officer did provide an opportunity to commit an offence. After all, that was the raison d’être for her presence in the chat room. The officer was looking for people who might approach her, knowing that she was underage. In considering this issue, my colleague does not address, nor did the trial judge, the fact of the persona that the officer created and presented to others in the chat room. In particular, the officer gave evidence that she adopted the user name “mia_aqt98” for the purpose of communicating to others in the chat room that she was female, that she was “a cutie”, and that she was 14 years old.
49In my view, the adoption of this username, for the reasons that the officer did, was an invitation or enticement to improper conduct. It was the digital equivalent of an undercover officer standing on a street corner with a sign saying “drug user”. In that situation, the undercover officer would be advertising to any drug dealer that she was a potential customer. It would clearly be offering an opportunity for a drug dealer to approach her for the purpose of selling her drugs. Whether one characterizes it as an invitation to commit an offence or an opportunity to commit an offence, the result is the same. It is that fact that distinguishes this case from some others, such as Bayat and R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, aff’d 2010 SCC 50, [2010] 3 S.C.R. 62.
50The officer did not simply go into the chat room as an adult, in the normal course of her duties, with no intention to investigate or create a specific offence. In other words, the officer was not simply “walking her beat” in the chat room. If that had been the case, there would be no offering of an opportunity just as there would be no opportunity offered if a plain clothes officer was simply standing on a sidewalk and a person approached and offered to sell her drugs.
51The officer’s own evidence reinforces my view of her actions. Her whole purpose in going into the chat room was to try and find potential offenders. She did not suggest otherwise. She was clearly trying to entice some contact of the very type that the appellant provided. To conclude that the officer was not providing an opportunity to commit an offence is inconsistent with her presence in the chat room and the adoption of the persona that she did, which she then advertised to the other participants in the chat room. Keep in mind, on this point, that this was not a chat room for teenagers, nor was it the type of chat room that teenagers would be expected to frequent. It was an adult-only chat room. It was also not a chat room devoted to sexual interests or sexual activities.
52In my view, the officer in this case created a situation that is no different in kind than the example of offering a wallet, used by Lamer J. in Mack, at p. 957. In this case, the officer was the wallet. She acted as a lure. She wanted to see if someone would take the bait and the appellant did. She provided the opportunity. Any other conclusion does not align with the reality of the situation.
Bona fide inquiry
53Having concluded that the opportunity to commit an offence was provided, it then becomes necessary to determine if the officer had a reasonable suspicion that the appellant was already engaged in criminal activity, or that she was acting pursuant to a bona fide investigation. No one suggests that the officer had any suspicion about the appellant. It is the bona fide investigation aspect that is relied upon.
54However, as the Supreme Court of Canada has made clear recently in R. v. Ahmad, 2020 SCC 11, the bona fide investigation aspect of the entrapment doctrine still requires the police to have a reasonable suspicion. If the police do not have a reasonable suspicion about the individual, then they must have a reasonable suspicion about the location. As Karakatsanis, Brown and Martin JJ. said, at para. 20:
A bona fide investigation is not a separate and freestanding way for police to entrap an individual, but a means of expressing the threshold of reasonable suspicion in a location.
55For the police to be engaged in a bona fide investigation that is directed towards a location, as opposed to an individual, the police must have a reasonable suspicion that the location is a source of criminal activity. Lamer C.J. stated the requirement this way in R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449, at p. 463:
The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring.
56The trial judge’s approach to this requirement was to conclude, in essence, that any chat room on the Internet is a place where criminal activity is likely occurring. He said, specifically, that “[t]he internet chat room was a place where internet luring was likely occurring”: 2016 ONSC 5675, 342 C.C.C. (3d) 128, at para. 58. The trial judge does not refer to any evidence in support of this conclusion and none is to be found in the record. Contrary to the submissions of Crown counsel at trial, the fact is that the officer did not offer any evidence that this chat room was a location suspected of child luring. It appears that the officer essentially chose this particular chat room at random, the only criteria being that it had to be a chat room where the participants were likely to be within her geographic jurisdiction.
57The trial judge relied on the decision in R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, to support his conclusion on this point. I am unable to see how that decision assists on this issue. As noted by the trial judge, Levigne addresses the reasons behind the enactment of the child luring provision in the Criminal Code, R.S.C., 1985, c. C-46. While the decision does say that the provision was put in place to facilitate the investigation of such offences, it does not say why the officer was in the particular chat room in that case nor does it say, or suggest, that the entire Internet is so rife with criminal activity of this type that it provides reasonable suspicion for an investigation in every contour of its existence.
58On this point, there is a clear distinction between an Internet chat room of the type involved here, and sites such as Craigslist, which have featured in other decisions involving this issue (see, for example, R. v. Argent, 2016 ONCA 129). The sexual nature of activities on certain portions of Craigslist is well-known. The police often get complaints about them. Such information can provide the reasonable suspicion necessary for a bona fide investigation. But those situations are different in kind than what was involved in this case.
59The police were required to have a reasonable suspicion that child luring would be occurring within this chat room, in order to establish that any investigation was a bona fide one. This requirement is confirmed in Ahmad, where Karakatsanis, Brown and Martin JJ. said, at para. 24:
This standard requires the police to disclose the basis for their belief and to show that they had legitimate reasons related to criminality for targeting an individual or the people associated with a location. [Citations omitted.]
60The fact is that the police did not offer that evidence. Indeed, the Crown on appeal does not even suggest that the police had any such evidence.
61Rather, the Crown proposes, and the trial judge appears to have accepted, that Internet chat rooms generally are locations where a reasonable suspicion exists with respect to the prospect of child luring. That broad-based approach to reasonable suspicion was rejected in Barnes and rejected again in Ahmad. Indeed, the application of the reasonable suspicion standard to virtual spaces was directly addressed in Ahmad, where Karakatsanis, Brown and Martin JJ. said, at para. 41:
We emphasize that the virtual space in question must be defined with sufficient precision in order to ground reasonable suspicion. Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows.
And further, at para. 43:
In our view, entire websites or social media platforms will rarely, if ever, be sufficiently particularized to support reasonable suspicion.
62It is clear, in my view, that the officer in this case was engaged in random virtue testing, as that concept is properly understood. It is akin to the situation referred to inBarnes, where Lamer C.J. said, at p. 462:
I note that in many cases, the size of the area itself may indicate that the investigation is not bona fide. This will be so particularly when there are grounds for believing that the criminal activity being investigated is concentrated in part of a larger area targeted by the police.
63While the situation in Barnesdealt with a geographic area in the City of Vancouver, it serves up the same problem if one considers the Internet as a geographic area. Just because criminal activity may occur in one part of the Internet does not justify the police entering any area to conduct an investigation, just as the fact that drug activity took place in the Granville Mall area of Vancouver would not have justified an investigation outside of that specific area. The police must have evidence specific to the area that they are going to investigate.
64As I have already pointed out, there are parts of the Internet that are reasonably suspected of being misused for criminal purposes. Craigslist is the example to which I referred, but there are others. The police did not offer any evidence that it is problematic to separately deal with the component parts of the Internet for investigative purposes. Yet their approach in this case relies on a blanket of suspicion over the entire Internet.
65It is not the role of the police to randomly offer members of the public the chance to commit an offence and then see who does. The problem with random virtue testing, as identified in Mack, presents itself in this very case. It was described by Lamer J., at p. 965:
The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis.
66One has to wonder whether there is any reason to believe that the appellant would have become involved in this crime, but for the officer’s actions in this case. It is this reality that provides the reason why the police are prohibited from engaging in random virtue testing “because it ‘prey[s] on the weakness of human nature’ to entice individuals into offending”: Ahmad, at para. 28.
67In that regard, one must not lose sight of the fact that the Internet now provides a place for social exchange and interaction that might previously have been provided only by bars, social clubs, or other physical events and locations. As McLachlin C.J. observed in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 28:
The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. The phrase “chat room” to describe an Internet site through which people communicate is not merely a metaphor.
68As this observation makes clear, the actions of the police in a chat room engage privacy concerns. People who participate in private conversations on the Internet are entitled to expect that the police will not be surveilling their conversations, including instigating or participating in them for investigative purposes not based on a reasonable suspicion of criminal activity. This point was also made in Ahmad where Karakatsanis, Brown and Martin JJ. said, at para. 38:
Section 8 jurisprudence recognizes that at the “heart of liberty in a modern state” is the need to “set a premium” on the ability of its citizens to carve out spaces in their lives, sanctuaries where they may interact freely, unhindered by the possibility of encounters with the state. [Citations omitted.]
69Finally, one must guard against allowing the nature of the offence to distort the application of the entrapment doctrine. Its application does not depend on the nature of the offence, or its seriousness, or the fact that the offence may be difficult to investigate. The fact that the appellant engaged in the conduct at issue cannot impact the conclusion regarding the application of the entrapment doctrine. As Lamer J. made clear in Mack, at p. 951, culpability is not the basis for the application of the doctrine. In considering entrapment, we look at the actions of the police, not of the accused.
Conclusion
70I would allow the appeal, set aside the conviction, and enter a stay of proceedings.
Released: “CWH” JUN 12 2020
“I.V.B. Nordheimer J.A.”
