Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 20210517 Docket: C64987

Before: Juriansz, Tulloch and Paciocco JJ.A.

BETWEEN: Her Majesty the Queen, Respondent and Muhammad Abbas Jaffer, Appellant

Counsel: Breana Vandebeek, for the appellant Tracy Kozlowski, Katie Doherty and Lisa Fineberg, for the respondent

Heard: January 12-13, 2021 by videoconference

On appeal from: the conviction entered by Justice Anne Mullins of the Superior Court of Justice, sitting with a jury, on October 25, 2016, and the entrapment ruling dated October 16, 2017, and the sentence imposed on February 23, 2018.

Juriansz J.A.:

[1] This appeal was argued together with two other defence appeals, R. v. Haniffa and R. v. Dare, and a Crown appeal, R. v. Ramelson. All of the appeals arose out of arrests and prosecutions pursuant to Project Raphael of the York Regional Police (“YRP”). Project Raphael was an undercover YRP investigation that began in 2014 with the objective of reducing the demand for sexual services from juveniles in the region by targeting the “buyer side”.

[2] As part of the investigation, the police posted fake advertisements in the “escorts” section of the online classified advertising website Backpage. When persons responded to the ads, an undercover officer posing as the escort would disclose in the ensuing text chat that “she” was underage. Individuals who continued the chat and arranged sexual services and a price were directed to a hotel room to complete the transaction and were arrested and charged on their arrival.

[3] The common issue in the four appeals is whether the individuals who were arrested and prosecuted pursuant to Project Raphael were entrapped by the police. The appellant also appeals his sentence.

[4] For the reasons that follow, I would dismiss the appeal from the dismissal of the entrapment application. I would also dismiss the appellant’s appeal of his sentence.

A. The facts in this case

[5] In this case, the ad placed in the escort section of Backpage purported to have been placed by “Kathy”. Kathy described herself as a “Tight Brand New Girl”. The ad included photographs of a female police officer, whose face was not shown, posing as Kathy. The ad indicated Kathy was 18 years old, the minimum age allowed by Backpage.

[6] On October 24, 2014, the appellant texted Kathy and asked her rates. Truong responded and, after exchanging several preliminary messages, texted, “well im not quite 18 yet r u ok with that”. The appellant responded, “Yea I’m ok…but how much younger are u? 17?” Truong responded, “im turning 16 on sunday but I look 18”. The conversation continued and the appellant texted, “Ok can I ask why you’re escorting if it’s okay with u? Usually people your age don’t know about this industry”. Truong responded saying that Kathy’s friend got her into it because she needed the money. The appellant eventually proceeded to the hotel.

[7] When the appellant arrived at the room, he was arrested and charged with telecommunicating with a person he believed to be under the age of 18 contrary to s. 172.1(2) (child luring under 18), and communicating to obtain for consideration the sexual services of a person under 18 contrary to s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a minor) of the Criminal Code, R.S.C., 1985, c. C-46. While the information references s. 172.1(2), this count relates to the offence under s. 172.1(1)(a). Section 172.1(2) sets out the punishment for this offence. The appellant was also charged with two counts under s. 172.2(2) and a further count under s. 172.1(2) but was not tried on these charges.

[8] At trial, the appellant testified that his initial purpose for responding to Kathy’s ad was to engage in a sexual relationship, but his intentions changed when he learned that Kathy was underage. He said he thought it was strange for Kathy to reveal her age and thought it was a cry for help – the only reason that an escort would reveal they were underage was out of fear of their pimp. As a result, he testified that he continued the interaction intending to assist Kathy and did not intend to engage in sex with her once he learned her age. In support of this testimony, the appellant gave evidence that he had arranged to meet an adult escort later the same evening and only had enough cash on his person to pay for a single escort.

[9] When he was being arrested, the appellant told police that he intended to contact the police to help Kathy. The appellant claimed he had previously assisted the police in investigating the pimp of an escort he had met on Backpage and this was corroborated by police testimony at trial.

[10] The jury disbelieved the appellant’s evidence and found him guilty of both counts. The sentencing judge stayed the conviction on s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a minor) based on Kienapple v. R., [1975] 1 S.C.R. 729.

[11] The appellant applied for a stay of proceedings on the basis he had been entrapped. The application was denied and the appellant was sentenced to six months incarceration, less credit for time on house arrest, resulting in an effective sentence of four months, two weeks and three days.

B. Arguments on appeal

[12] The appellant submits the trial judge made three errors:

1. by concluding Project Raphael was a bona fide inquiry and failing to find that he was entrapped;
2. by failing to find the appellant had been induced into committing the offence; and
3. by imposing an unfit sentence by refusing to impose a conditional sentence, failing to give sufficient reasons for the sentence imposed, and failing to assign appropriate weight to the aggravating and mitigating factors.

C. Analysis

(1) Opportunity-based entrapment

[13] Appellant’s counsel adopted the submissions made in Haniffa on the issue of opportunity-based entrapment adding her own emphasis and references to the record in this case. As he had in Haniffa, Truong testified in this case that underage persons advertised on Backpage do not reveal their true age in their communications with unknown callers. He added, that if they did disclose their age, they would do so only when they met the customer face to face and felt comfortable. He said what “typically” happens is that the customer shows up expecting an 18-year-old and the person turns out to be a child. Only when the customer takes the initiative to question their age, might their age come out.

[14] Counsel submits this testimony shows the police had no real information as to the scale of the problem – how many underage persons were being sold on Backpage and how many customers knowingly purchased underage persons. She submits the information was so paltry that it cannot be said the police had reasonable suspicion.

[15] I dealt with this argument in the comprehensive reasons of Ramelson. I explain that Truong’s testimony, based on his extensive experience, gave the trial judge an evidentiary basis for concluding the police had reasonable suspicion persons were going onto Backpage and engaging underage persons thus committing the s. 286.1(2) (obtaining sexual services from a minor) offence. Truong gave the same testimony in this case.

[16] For the reasons set out in Ramelson, I reject this argument.

(2) Inducement-based entrapment

[17] While Ramelson dealt comprehensively with the arguments related to opportunity-based entrapment, Mr. Jaffer raised the issue of inducement-based entrapment as well.

[18] This branch of entrapment applies when the police, even though they may have a reasonable suspicion or are acting in the course of a bona fide inquiry, go beyond providing an opportunity and induce the commission of an offence: R. v. Mack, [1988] 2 S.C.R. 903, at pp. 964-965; R. v. Barnes, [1991] 1 S.C.R. 449, at p. 460. Mack is an example of this second branch. A police agent persisted in attempting to persuade Mack, who had dated drug convictions, to participate in a large drug deal despite his refusals. Mack finally participated in the drug transaction because of the police agent’s persistence, his use of threats, and the offer of a large amount of money. Mack’s conviction was upheld by the British Columbia Court of Appeal. In allowing his appeal, the Supreme Court ruled he had been entrapped. Though the police had reasonable suspicion that Mack was involved in criminal conduct, they went too far in their efforts to attract him into committing the offence.

[19] The Supreme Court in Mack set out a number of factors to consider to determine “whether the police have employed means which go further than providing an opportunity” at p. 966:

• the type of crime being investigated and the availability of other techniques for the police detection of its commission;
• whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
• the persistence and number of attempts made by the police before the accused agreed to committing the offence;
• the type of inducement used by the police including: deceit, fraud, trickery or reward;
• the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
• whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
• whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
• the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
• the existence of any threats, implied or express, made to the accused by the police or their agents;
• whether the police conduct is directed at undermining other constitutional values.

[20] Counsel argued that the appellant’s factual circumstances strongly suggest that he is a person who succumbed to random virtue testing. He was 22 years old and went on Backpage seeking an 18-year-old escort. He had maintained an A average throughout university and graduated with a bachelor’s degree in science. He was of prior good character, from a close family that supported him, and active with his church. Counsel submitted his testimony showed he was “an odd and strange person” who was lacking in social relationships and could not form relationships with women. He testified he began seeing prostitutes because he could not get a girlfriend. He testified that his first encounter on Backpage, with a prostitute who was 40 years of age, was the first time he had held hands with a woman. The expert report of a clinical and forensic psychologist, which was subsequently obtained for sentencing, diagnosed the appellant as falling within the autistic spectrum of neurological disorders and with depression and anxiety. His chat history and phone records introduced at trial showed that he was not looking for someone underage. The day he was arrested he had talked with escorts ranging in age from 18 to 40.

[21] Counsel submits that the purpose of the law of entrapment is to promote society’s respect for the administration of justice and not to lure people like the appellant into committing offences.

[22] The trial judge observed that drawing the line between providing an opportunity and inducing the commission of an offence is not always easy but rejected the argument the appellant had been induced. She concluded that the evidence showed clearly that the appellant “was determined to purchase sexual services and gave specific consideration to the information as to the age of the purveyor before he acted on his choices.” The appellant’s messages in the text chat provided a basis for the trial judge’s conclusion.

[23] I would not give effect to this ground of appeal.

(3) The sentence appeal

[24] The appellant was sentenced on his conviction for the s. 172.1 offence. As mentioned, the conviction under s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a minor) was stayed. At the time he committed the offence the maximum punishment for the s. 172.1 offence was imprisonment for 10 years.

[25] At sentencing, the appellant argued that a conditional sentence was appropriate given his youth, pro-social lifestyle, and personal background. He had been diagnosed as falling within the autistic spectrum of neurological disorders and suffered from severe depression and anxiety. The psychological testing also established that the appellant was not a pedophile and did not have a sexual preference for minors.

[26] The trial judge found that the evidence at trial coincided with the assessment of the psychologist “that he has not had opportunity for an appropriate, socially meaningful, expression of the sexual desires to be expected of a young adult.” She found there was no evidence that the appellant was seeking sexual services from an underage person when he responded to the ad posted by the police, that he was unlikely to reoffend, and that he did not require rehabilitation. She concluded a lengthy custodial sentence would not serve the principles of sentencing, and as noted, imposed an effective sentence of four and one-half months incarceration.

[27] The appellant submits that the trial judge's reasons are insufficient to explain why she refused to impose a conditional sentence, and do not permit meaningful appellate review of that refusal. Therefore, this court should sentence the appellant anew. In addition, the appellant submits that the COVID-19 pandemic is a collateral consequence that impacts the fitness of the sentence imposed. He requests that the court impose a sentence of house arrest to address the collateral consequence of the COVID-19 pandemic.

[28] I am not persuaded the trial judge’s reasons are insufficient. While she does not specifically itemize the mitigating factors that she took into account, her detailed description of the appellant’s circumstances includes all those facts that the appellant submits are mitigating. And while she did not discuss the appellant's request for a conditional sentence, she did observe the crime was a grave one with a maximum punishment of 10 years imprisonment and did state that any lesser sentence would be inconsistent with the principles of denunciation and deterrence.

[29] I would dismiss the appeal against sentence.

D. Conclusion

[30] For these reasons, I would dismiss both the conviction and sentence appeal.

Released: May 17, 2021 “RGJ” “R.G. Juriansz J.A.” “I agree. M. Tulloch J.A.” “I agree. David M. Paciocco J.A.”