R. v. R.R., 2023 ONCA 292

R. v. R.R., 2023 ONCA 292

Publication Ban Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 2023-04-26 Docket: C69466

Before: Feldman, Roberts and Coroza JJ.A.

Between: His Majesty the King, Respondent And: R.R., Appellant

Counsel: Mark C. Halfyard, for the appellant Katie Doherty, for the Crown

Heard and released orally: March 29, 2023

On appeal from the convictions entered on November 13, 2020, and the sentence imposed on June 3, 2021, by Justice Russell S. Silverstein of the Ontario Court of Justice.

Reasons for Decision

1The appellant was convicted of ten offences involving child pornography and counselling to commit sexual interference.

2On October 15, 2017, a police officer, Detective Constable Mailer (“D.C. Mailer”), an investigator with the Toronto Police Service Sexual Assault Squad came across a concerning ad that the appellant had posted in the Casual Encounters subsection of the Personal Ads section of Craigslist.

3D.C. Mailer suspected from the wording of the ad that the appellant had sexually abused his own daughter and would commit a further offence. He decided to investigate by responding to the ad and engaging the appellant in conversation posing as a single mother named Sara with two daughters.

4In the initial conversations, the officer made it clear that she was not looking for role playing. In subsequent conversations that followed, the appellant responded to the officer’s offer with respect to her children. He offered to coach the undercover officer on how to engage “her” putative children in sexual acts, arranged to engage in sexual acts with the officer and “her” children, and graphically described various sexual acts involving the children and sent pictures to the officer that the trial judge found amounted to child pornography.

5The trial was held in a blended fashion where the evidence called by the Crown was applied to both the trial of the offences and the appellant’s entrapment application. At trial, the appellant argued that he was entrapped by D.C. Mailer’s investigation.

6The trial judge rejected this argument and convicted the appellant.

7There is no dispute regarding the law of entrapment. The cases of R. v. Mack, [1988] 2 S.C.R. 903, at pp. 959, R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 15, and R. v. Ramelson, 2022 SCC 44, at para. 29, set out the test that must be met.

[8] There is entrapment when: (a) 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; and (b) 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.

9The appellant appeals from the trial judge’s finding and seeks a stay of proceedings.

10The appellant makes two primary submissions on his conviction appeal.

11First, he argues that the trial judge erred in his evaluation of reasonable suspicion. He submits, applying a correctness standard, that the finding that D.C. Mailer had a reasonable suspicion based on the Craigslist ad cannot stand.

12Second, he submits that the trial judge failed to address the evidence of D.C. Kidd and assess whether the lack of investigative steps taken to ascertain the alleged child abuse post-arrest cast doubt on D.C. Mailer’s assertion that he subjectively believed that the appellant was committing a sexual offence against his daughter.

13We do not accept either submission.

14Turning to the first argument, the trial judge specifically found, at para. 72, that the appellant’s reference in the Craigslist ad to being “a REAL Daddy of a real daughter” who “know[s] what little girls actually love and want and need” amply supported a reasonable possibility that he had sexually assaulted his real daughter and would commit a further offence. In our view, that finding is firmly anchored in the record and we agree with it. This statement, on its own, was sufficient to ground a reasonable suspicion.

15The officer subjectively suspected that the appellant had molested his own daughter and would commit a further offence. We agree with the trial judge that his suspicion was objectively reasonable. As the trial judge noted, it must be borne in mind that the appellant’s words must be viewed in the context of the entire ad. The trial judge found that the ad seeks someone to share the appellant’s fantasy about having sex with an underaged girl and that the comment about his real daughter must be evaluated in that context.

16With respect to the second argument, in our view, the trial judge did address the argument made by the appellant that had D.C. Mailer indeed harboured a reasonable suspicion, he would have instructed D.C. Kidd to take other investigative steps. The trial judge grappled with this issue at paras. 74 and 75. He found that D.C. Mailer’s decision not to take additional steps did not mean that he did not honestly harbour the suspicion that the appellant had molested his own child. We see no error in that finding.

17In light of our conclusion with respect to the first argument, we need not deal with the issue as to whether D.C. Mailer was acting pursuant to a bona fide inquiry when he responded to the applicant’s Craigslist ad.

18For these reasons, the conviction appeal is dismissed.

19In his Notice of Appeal, the appellant also sought leave to appeal his sentence. However, the appellant stated in his factum that it is his intention to abandon his sentence appeal. In light of that submission, the appeal from sentence is dismissed as abandoned.