COURT OF APPEAL FOR ONTARIO DATE: 20210517 DOCKET: C66356

Juriansz, Tulloch and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Temitope Dare Appellant

Counsel: Lance Beechener, for the appellant Tracy Kozlowski, Katie Doherty and Lisa Fineberg, for the respondent

Heard: January 12-13, 2021 by videoconference

On appeal from the convictions entered by Justice Laura A. Bird of the Superior Court of Justice on February 9, 2018, sitting with a jury, and the ruling on entrapment dated June 22, 2018.

Juriansz J.A.:

[1] This appeal was argued together with two other defence appeals, R. v. Jaffer and R. v. Haniffa, and a Crown appeal, R. v. Ramelson. All 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 convictions on the ground that the trial judge erred in her instructions to the jury.

[4] For the reasons that follow, I would dismiss the appeal from conviction and the appeal of the dismissal of the entrapment application.

A. The FACTS IN THIS CASE

[5] In this case, the ad the police placed on the escorts section of Backpage purported to have been placed by “Kathy”. Kathy described herself as a “Tight Brand New girl” who is “sexy and young” and has a “YOUNG FRIEND”. The ad included three photographs of a female police officer, whose face was not shown, posing as Kathy. In one of the photographs, she was wearing a t-shirt with the name of a local high school printed on it. The ad indicated Kathy was 18 years old, the minimum age allowed by Backpage.

[6] On March 25, 2016, the appellant testified he was under the influence of alcohol after a party at his house and decided to look for an escort on Backpage. At 3:14 a.m. he responded to the ad posted by Kathy and began communicating with Detective Sergeant Hogan who was posing as Kathy. At 3:26 a.m. the undercover officer asked, “You cool with young?”, to which the appellant replied “Yes. Am also young”. The undercover officer then wrote “Ok cool. I’m 15 but look bit older”. Then, before the appellant replied, the officer sent another text saying, “How old are you if you don’t mind me asking?” The appellant responded, “Ok am 22”.

[7] The appellant continued the text chat discussing whether Kathy’s friend would be included, the sexual services, the price and where to meet. When the appellant had not arrived when he said he would, the undercover officer texted at 5:05 a.m., “Thought u were playing games and trying to take advantage of me because I’m 15. Didn’t mean to be rude.” The appellant responded, “It fine no problem”.

[8] 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), telecommunicating with a person he believed to be under the age of 16 contrary to s. 172.1(2) (child luring under 16), and communicating to obtain for consideration the sexual services of a person under 18 contrary to 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) these charges relate to the offences under ss. 172.1(1)(a) and 172.1(1)(b). Section 172.1(2) sets out the punishment for these offences.

[9] The appellant’s defence at trial was that he believed he was communicating with a person who was over the age of 18. He testified that he did not notice the reference to Kathy being 15 in the 3:26 a.m. text and that in his next text he was responding only to the question about his age. He testified he was in a taxi on the way to the hotel when he received the 5:05 a.m. text and so read only the last part of it, again missing Kathy saying she was 15.

[10] The jury found the appellant guilty on all three counts. The trial judge stayed the convictions under ss. 172.1(1)(b) (child luring under 16) and 286.1(2) (communicating to obtain sexual services from a minor) pursuant to 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 trial judge dismissed the application and sentenced the appellant to 90 days imprisonment to be served intermittently.

B. ARGUMENTS ON APPEAL

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

1. by erring in instructing the jury they could convict the appellant if they determined he had read one of the text messages saying “Kathy” was 15; and
2. by concluding Project Raphael was a bona fide inquiry and failing to find that the appellant was entrapped.

C. ANALYSIS

(1) Jury instruction

[13] The appellant appeals his conviction submitting the trial judge erred in instructing the jury they could convict if they determined he had read one of the text messages saying Kathy was 15. He relies on the Supreme Court’s decision, R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, which was released after the appellant was convicted, to argue that the trial judge’s instructions were wrong in law.

[14] In Morrison the Supreme Court declared s. 172.1(3) of the Criminal Code to be of no force or effect. Section 172.1(3) created a presumption, absent evidence to the contrary, that an accused believed any representation made that the person with whom they communicated was underage. In Morrison, the Supreme Court ruled that presumption violated an accused’s right to be presumed innocent under s. 11(d) of the Charter of Rights and Freedoms. Moldaver J. writing for the majority said that the Crown could not meet its burden by proving an accused was negligent or reckless about the person’s age. He stated that the only pathway to conviction was to “prove beyond a reasonable doubt that the accused believed the other person was underage”: at para. 96. Later in his reasons, he did allow that “wilful blindness can stand in for belief as well”: at para. 99.

[15] The appellant submits the trial judge erred by linking the reasonable doubt standard to whether the appellant had read at least one of the text messages that indicated Kathy was 15 years old. He says this would have left the jurors with the impression that, if they found the appellant read the text messages, the essential element of belief had been proved. The reasoning would be legally incorrect because, as Pardu J.A. had said in the Court of Appeal decision in Morrison, 2017 ONCA 582, 136 O.R. (3d) 545, at para. 60:

There is simply no expectation that representations made during Internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes, including age. Indeed, the expectation is quite the opposite, as true personal identities are often concealed in the course of online communication about sexual matters.

This passage was quoted with approval by Moldaver J. in Morrison, at para. 58.

[16] Thus, the appellant submits, permitting the jury to find that he simply read the texts falls short of proving he believed the person with whom he was communicating was under the age of 16. A finding that he simply read the text messages would establish only recklessness, which Morrison makes clear is insufficient to ground a conviction: at para. 83.

[17] I would not give effect to this ground of appeal. Upon considering the trial judge’s instructions as a whole in the context of the trial and the addresses of counsel I am satisfied the jury was not misled on the essential element of belief.

[18] In her instructions on count 1 the trial judge correctly instructed the jury that the critical issue was whether the appellant believed Kathy was 15 years old. Then, in her instructions on count 2, the trial judge again told the jury that they must find that the appellant believed the person he was communicating with was under the age of 16. However, she added “this comes down to the same question of whether the Crown has proven beyond a reasonable doubt that Mr. Dare read the two text messages that made reference to [K]athy being 15 years old.” She added “if you have a reasonable doubt about whether Mr. Dare believed that Detective Sergeant Hogan was under the age of 16 years, you must find him not guilty of this offence.”

[19] The trial judge told the jury that the instructions she had given earlier “on the issue of Mr. Dare’s belief about the age of the person he was communicating with” applied to count 3.

[20] After the trial judge completed her jury charge, the Crown objected that the trial judge had told the jury that the Crown had to prove beyond a reasonable doubt “that he read the two text messages”, but it would be sufficient if he had read one or the other of them.

[21] The trial judge called the jury back and provided the following clarifying instruction:

There is one clarification I wish to make, Members of the Jury. … [I]t applies to all three counts of the indictment, and it’s in relation to the Crown being required to prove beyond a reasonable doubt that Mr. Dare read the text messages, specifically in relation to [K]athy being 15, I had said, “read both of them.” It should have read, “read one or both of them.”

So the Crown must prove beyond a reasonable doubt, in relation to all three counts, that Mr. Dare read one or both of the text messages where Detective Sergeant Hogan made reference to the age of 15.

[22] The appellant’s defence at trial was that he had not paid close attention to the messages in the text chat and simply had not seen either of the two references to Kathy’s age. In his testimony in-chief, he was emphatic that if he had read those references he would not have continued the chat. Under cross-examination, he steadfastly denied that he had read the 15-year-old references.

[23] In her charge, the trial judge set out the defence position that the appellant had missed the references to Kathy being 15, and if he had, he would have stopped texting with her because he had no interest in having sex with a child. After summarizing the references in the text chats and the appellant’s specific denials of reading each, the trial judge instructed the jury that “if you have a reasonable doubt about whether Mr. Dare believed that Detective Sergeant Hogan was under the age of 18 years, you must find him not guilty of this offence.”

[24] Except for the impugned passages, the trial judge, throughout her charge, instructed the jury that they had to find the appellant believed the person with whom he was communicating was underage. Moreover, the Crown’s closing address told the jurors clearly they had to be satisfied beyond a reasonable doubt that the appellant had both read at least one of the 15-year-old references and believed Kathy to be 15 before the appellant could be found guilty.

[25] At trial the defence drew no distinction between the appellant reading the 15-year-old references in the text chat and his believing that Kathy was underage. The defence conducted the trial on the basis that if the appellant had read the 15-year-old text messages he would have known that Kathy was 15 and discontinued the text chat. For that reason, it is understandable that defence counsel did not object to the passages that are now criticized on appeal.

[26] Considering the trial judge’s instructions as a whole, and in the context of the defence position at trial, I am satisfied the jury understood that the critical question was whether the appellant believed the person with whom he was texting was underage.

[27] I would reject this ground of appeal.

(2) Entrapment

[28] Appellant’s counsel adopted the submissions made on the issue of entrapment in Haniffa. Those submissions were considered in Ramelson. Comprehensive reasons in Ramelson included the analysis and rejection of the second ground of appeal advanced in this case. For the reasons set out in Ramelson, I would reject this appellant’s argument that he was entrapped.

D. Conclusion

[29] For these reasons, I would dismiss the appeal.

Released: May 17, 2021 “RGJ”

“R.G. Juriansz J.A.”

“I agree. M. Tulloch J.A.”

“I agree. David M. Paciocco J.A.”