COURT OF APPEAL FOR ONTARIO DATE: 20210517 DOCKET: C68767

Juriansz, Tulloch and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Corey Daniel Ramelson Respondent

Counsel: Katie Doherty, Tracy Kozlowski and Lisa Fineberg for the appellant Richard Litkowski, for the respondent

Heard: January 12-13, 2021 by videoconference

On appeal from the stay imposed by Justice Chris de Sa of the Superior Court of Justice on October 8, 2020, with reasons reported at 2020 ONSC 5030.

Juriansz J.A.:

[1] This Crown appeal was argued together with three defence appeals: R. v. Jaffer, R. v. Dare, and R. v. Haniffa. 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. The escorts section of Backpage expressly advertised sexual services. The police ads indicated the age of the escort was 18, the minimum age Backpage allowed. However, the police intended to suggest a certain level of inexperience and youth by featuring words such as “young”, “tight”, “shy”, and “brand new”. The police included in the ads photos of female officers posing as escorts. Individuals would respond to the ads by text message and in the ensuing negotiation of sexual services, the police officer posing as the escort would tell them that “she” was younger than 16. 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 were entrapped by the police. In the three defence appeals, the appellants’ applications to stay the proceedings because of entrapment were dismissed and they have appealed.

[4] In this Crown appeal, the trial judge, in reasons released November 28, 2019, first dismissed the respondent’s entrapment application. The respondent was still before the trial court in May 2020 when the Supreme Court of Canada’s decision in R. v. Ahmad, 2020 SCC 11, 445 D.L.R. (4th) 1, was released. The trial judge invited the parties to make further entrapment submissions about the impact of the Ahmad decision. In a second decision, released October 8, 2020, the trial judge concluded the respondent had been entrapped and stayed the proceedings.

[5] The three defence appellants and this respondent presented a united front on the entrapment issues. The respondent in this appeal expressly adopted the submissions made by counsel for Haniffa. The reasons in this appeal deal comprehensively with the united argument presented, and separate reasons in the other appeals are released at the same time.

[6] Project Raphael is the first of this type of investigation carried out in Ontario. Police in British Columbia carried out a similar investigation by posting analogous ads on Craigslist. In R. v. Chiang, 2012 BCCA 85, 286 C.C.C. (3d) 564, the court concluded Mr. Chiang had not been entrapped on a charge of communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years, contrary to s. 212(4) (now s. 286.1(2)) of the Criminal Code, R.S.C. 1985, c. C-46.

[7] For the reasons that follow, I would allow the Crown’s appeal in this case, set aside the stay of proceedings, and remit the matter to the trial judge for sentencing.

[8] At trial the Crown sought a s. 486.4(1)(a)(i) publication ban and the trial judge was obliged to make the order as provided by s. 486.4(2)(b). In this court the Crown took the position the order should not be maintained as all the witnesses who testified in the Crown’s case were police witnesses and there is no public interest prohibiting disclosure of their identity. This court set aside the non-publication order, and the respondent’s name is not initialized in these reasons.

A. Background

[9] The advertisement, in this case, was posted on Monday, March 27, 2017 in the Toronto escorts section of Backpage. It purported to have been placed by “Michelle”, whose stated age was 18. Michelle described herself as a “Tight Brand NEW girl” who is “sexy and YOUNG” and who has a “YOUNG FRIEND” (emphasis in original). The advertisement included three photographs of a female police officer, whose face was not shown, posing as Michelle. In one of the photographs, she was wearing a t-shirt with the name of a local high school printed on it.

[10] At around 4:00 p.m. on the same day, the respondent texted Michelle and began chatting with her. About 27 minutes into the chat, just after the respondent indicated he wanted to see both Michelle and her friend, Michelle texted back, “Just so you know we under 18. Some guys freak out and I don’t want problems. We are small and it’s obvious.” The respondent replied a minute later, “I’m cool with it. I’ll be gentle as long as you’re sexy and willing.” Two minutes later, Michelle texted “We are both willing. We’re 14 but will both be turning 15 this year. That cool? We are buddies and very flexable??”. The respondent replied, “Should be lots of fun”. Later in the chat, in response to the respondent’s text “Can you girls dress up for me”, Michelle texted “I’m 14 I got regular clothed and my bra and underwear.” The chat continued intermittently for more than two hours and ended when the respondent arrived at the hotel and Michelle told him to come up to her room. The entire text chat is appended to these reasons.

[11] On his arrival at the room, the respondent was arrested and charged with:

1. telecommunicating with a person he believed was under the age of 16 years for the purpose of facilitating the commission of an offence under s. 152 (invitation to sexual touching) contrary to s. 172.1(2) (child luring under 16);

2. communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years, contrary to s. 286.1(2) (communicating to obtain sexual services from a minor); and

3. telecommunicating to make an arrangement with a person to commit an offence under s. 152 (invitation to sexual touching) contrary to s. 172.2 (2) (arrangement to commit sexual offences against a person under 16).

[12] At his trial, the respondent testified that he believed Michelle was at least 18 and that she was engaged in role-play as somebody younger. He testified that if he had found, on his arrival, that Michelle was actually 14 years old, he would have been disgusted, would have complained to the front desk, and would have even called the police.

[13] The trial judge found the respondent guilty on all three counts. The respondent applied for a stay of proceedings on the basis he had been entrapped. In the decision under appeal, the trial judge applied Ahmad and found that the respondent had been entrapped and entered a stay of proceedings.

[14] Whether the trial judge interpreted and applied Ahmad correctly is the central issue in this appeal. In the Jaffer, Haniffa, and Dare appeals, the entrapment applications were decided before Ahmad was released. They rely on Ahmad in submitting their cases were wrongly decided. All the appeals turn on the proper understanding of the law of entrapment and its application to the simple facts in each of these appeals.

[15] It is apt to begin with setting out the law of entrapment as I understand it.

B. The Law of Entrapment

(1) Pre-Ahmad articulation of the entrapment doctrine

[16] In deciding the respondent’s first application, the trial judge applied the law of entrapment as articulated in the foundational cases of R. v. Mack, [1988] 2 S.C.R. 903, and R. v. Barnes, [1991] 1 S.C.R. 449.

[17] Both decisions were authored by Lamer J. (Lamer C.J. when Barnes was written). In Mack, he explained that “the court’s sense of justice is offended by the spectacle of an accused’s being convicted of an offence which is the work of the state”: at p. 942. In Barnes, at p. 459, he stated the following rationale for the “defence” of entrapment:

The defence of entrapment is based on the notion that limits should be imposed on the ability of the police to participate in the commission of an offence. As a general rule, it is expected in our society that the police will direct their attention towards uncovering criminal activity that occurs without their involvement.

[18] Entrapment is not a true defence, as the accused has committed the crime and is properly found guilty. The remedy for entrapment is a stay of proceedings. Entrapment is a type of abuse of process. As Lamer J. explained in Mack, at p. 942:

The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court's disapproval of the state's conduct.

[19] Entrapment seeks to balance two competing interests: the individual has an interest in being left alone free from state intrusion, and the state has an interest in protecting society from crime.

[20] The traditional statement of the circumstances in which the defence is available is set out in Mack, at pp. 964-965, and in Barnes, at p. 460. The defence is available 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; or

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.

[21] There are two branches of the entrapment defence. The first, sub-paragraph (a) above, is opportunity-based entrapment and the second, sub-paragraph (b), is inducement-based entrapment. All four of the appeals before us raise opportunity-based entrapment claims. As only Jaffer raises inducement-based entrapment, I leave a discussion of inducement-based entrapment to the reasons in his appeal.

[22] As can be seen, opportunity-based entrapment provides two exceptions to the general rule that police cannot offer people the opportunity to commit a criminal offence. The first exception arises when the police have reasonable suspicion that the suspect is already engaged in the criminal activity before extending the offer. The Crown does not take the position the police had reasonable suspicion that the individual in any of the four appeals was already engaged in the criminal activity. The application of the first exception is not an issue in the appeals.

[23] The second exception arises when the police are acting pursuant to a bona fide inquiry when they extend offers to people to commit an offence. Barnes is the archetypical example of this exception. In Barnes the police offered people at the Granville Mall in Vancouver the opportunity to sell them drugs. Lamer C.J. explained, at p. 463, that:

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. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry. [Emphasis in original.]

[24] Lamer C.J. summarized, at p. 463, that:

Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:

(a) the person is already engaged in the particular criminal activity, or

(b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. [Emphasis in original.]

[25] In Barnes the police had limited the investigation to a six-block area, which the court considered reasonable in the circumstances. There was no suggestion the police were not acting in good faith. The court concluded the police were acting in the course of a bona fide inquiry. Therefore, though the police did not have reasonable suspicion that Barnes, himself, was engaged in drug trafficking, they had not engaged in random virtue testing.

(2) The Ahmad decision

(i) The facts and result of Ahmad

[26] Ahmad involved two separate appeals, one from Ahmad and another from Williams, from convictions for drug-related offences. In each case, the police had received tips that a named person associated with a phone number was dealing drugs. The police called each of the numbers, presented the person who answered the call with the opportunity to sell them drugs, arranged a meeting to buy the drugs, and arrested them when they turned up at the meeting. After Ahmad and Williams were convicted, they both claimed the proceedings against them should be stayed because they had been entrapped.

[27] The Supreme Court by a majority of five-four concluded that Ahmad had not been entrapped but that Williams had been entrapped. Because the tips the police had acted upon were anonymous and unsubstantiated, the police did not have reasonable suspicion that the phone numbers and named persons associated with those numbers were trafficking in drugs. Hence, the police could not claim they were carrying out bona fide inquiries of the phone numbers. Absent a bona fide inquiry, the police had to have reasonable suspicion that the individuals to whom they were speaking were involved in trafficking before they could present them the opportunity to sell drugs.

[28] When Ahmad answered the call from the police, he confirmed the name provided by the unsubstantiated tip and used language particular to the drug subculture by asking “What do you need?”. His use of this drug culture language corroborated the tip and gave the police reasonable suspicion he was involved in the drug trade. Once they had acquired reasonable suspicion, the police could offer him the opportunity to sell drugs. Therefore, Ahmad was not entrapped.

[29] Williams, however, was entrapped. Before the police offered him the opportunity to sell drugs, Williams had said nothing in the conversation that gave the police a reasonable suspicion the phone number was being used to sell drugs.

(ii) Entrapment applies in virtual spaces

[30] The Ahmad decision is significant because the court confirmed that the doctrine of entrapment applies to police investigations carried out in virtual spaces. Ahmad is especially pertinent to these appeals because Project Raphael was an investigation of a virtual space.

[31] As Ahmad was the first case involving virtual spaces, the court took full advantage of the opportunity to stress how virtual spaces differ from physical areas and what those differences mean for courts’ oversight of police investigations in virtual spaces.

[32] The court begins by observing that “a person reasonably expects privacy in most digital communications” and that “conversations over text message, social media messaging, or email, are not analogous to a ‘public post’”: at para. 36. The court notes the “increasing prominence of technology as a means by which individuals conduct their personal lives” and emphasizes that police investigations of such virtual spaces raise “unique concerns for the intrusion of the state into individuals’ private lives”: at para. 36. The court expresses concern that the breadth of some virtual spaces such as social media websites enables the police, using technology, to remotely access a potentially large number of targets with ease.

[33] The court states “that state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space”: at para. 37. The court continues on to note that technology and remote communication significantly increase the number of people to whom the police can provide opportunities, which heightens the risk that innocent people will be targeted: at para. 37. Obviously contemplating sting operations such as Project Raphael, the court observes “online anonymity allows police to increasingly fabricate identities and ‘pose’ as others to a degree that would not be possible in a public space like the Granville Mall”: at para. 37. Police can pose as fabricated identities “anytime and anywhere, since cell phones are a 24/7 gateway into a person’s private life”: at para. 37. The court cautions that “individuals must be able to enjoy that privacy free from state intrusion subject only to the police meeting an objective and reviewable standard allowing them to intrude”: at para. 37.

[34] In Ahmad the court provides guidance as to how the law of entrapment should be applied to police investigations in virtual spaces. The court did not, however, change the law of entrapment. The majority in Ahmad makes that point repeatedly. They describe the law as set out in Mack and Barnes as “settled doctrine”: at para. 3. They say there is no reason to alter the carefully calibrated balance between the need to protect private interests and personal freedom from state overreach and the state's legitimate interest in prosecuting crime that was struck in Mack and affirmed in Barnes: at paras. 3, 22-23. They observe “the entrapment framework has proved workable for decades in a variety of contexts” and “has stood the test of time, furnishing a principled, stable and generally applicable doctrine”: at para. 23. They add that “[n]o principled reason supports departing from it”: at para. 23.

[35] The majority specifically recites and adopts the traditional statement of entrapment from Mack and Barnes. Those decisions, as set out earlier in these reasons, state that the opportunity-based entrapment defence is established when the police provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the person is already engaged in the criminal activity or pursuant to a bona fide inquiry. It is not an issue in these four appeals whether the police had a reasonable suspicion that the individuals to whom they made offers were already engaged in the criminal activity. The Crown accepts the police did not have such reasonable suspicion. That leaves, as the central issue in these appeals, the question of whether the police were acting pursuant to a bona fide inquiry when they offered the individuals the opportunity to arrange the sexual services of an underage person.

[36] In Ahmad the court elaborates on what is necessary to constitute a bona fide police inquiry in virtual spaces. As I will show, Ahmad makes apparent that judicial assessment of whether a police investigation is a bona fide inquiry is multi-faceted. A bona fide inquiry requires that the police have the genuine purpose of investigating and repressing crime, that the police have objectively verifiable reasonable suspicion that people are engaged in the criminal activity within the space, that the space being investigated is sufficiently precise and narrow, and finally, that consideration of an open-ended list of factors enables the court to conclude that random virtue testing was avoided.

(iii) Reasonable suspicion

[37] Reasonable suspicion that the criminal activity is occurring in the space being investigated is an absolute requirement. In Barnes, Lamer C.J. said at p. 463:

Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:

(a) the person is already engaged in the particular criminal activity, or

(b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. [Emphasis in original.]

[38] In Ahmad, the court made this more explicit at para. 19: “police may present an opportunity to commit a crime only upon forming reasonable suspicion that either: (1) a specific person is engaged in criminal activity; or (2) people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry.”

[39] The court in Ahmad described at length the essential role of reasonable suspicion in a bona fide inquiry. The court pointed out that, “The reasons in Mack make clear that a bona fide inquiry into a location is premised upon and tethered to reasonable suspicion”: para. 20. At para. 27, the court said, “The opportunity-based branch of the Mack test therefore establishes that police cannot subject anyone to random virtue testing — virtuous or non-virtuous, predisposed or non-predisposed — without reasonable suspicion” (emphasis in original).

[40] Reasonable suspicion must be supported by objective factors: para. 42. At para. 45, the court stated “[r]easonable suspicion is, by definition, an objective standard that protects individuals’ interests and preserves the rule of law by ensuring courts can meaningfully review police conduct” (emphasis in original). However, quoting Mack, the court added that reasonable suspicion is not “unduly onerous”: at para. 45. It is “a lower standard than reasonable grounds,” which “allows police additional flexibility in enforcing the law and preventing crime”: at para. 45. Reasonable suspicion “requires only the possibility, rather than probability, of criminal activity”: at para. 46. But it is “subject to ‘rigorous,’ ‘independent’ and ‘exacting’ judicial scrutiny” because it “provides police officers with justification to engage in otherwise impermissible, intrusive conduct”: at para. 46. Police suspicion “must be focused, precise, reasonable, and based in ‘objective facts that stand up to independent scrutiny’”: at para. 46. Highlighting judicial oversight over police conduct, the court said that “[u]ltimately, the evidence said to satisfy reasonable suspicion must be carefully examined” and “the facts must indicate the possibility of criminal behaviour” (emphasis in original): at paras. 46-47.

[41] At para. 48 of their reasons, the majority describes reasonable suspicion as “individualized”. This is the only place in the majority’s reasons that the word “individualized” appears. In the paragraph, the majority is providing their answer to the concern of Moldaver J. in his dissenting reasons. Moldaver J. expressed the view that subsequent to the court’s decision in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, “reasonable suspicion” had to be “individualized” and this resulted in “dissonance between the entrapment framework set out in Mack and Barnes and the reasonable suspicion standard required by Chehil”: at paras. 48 and 138. In responding to this concern, the majority said “reasonable suspicion is also individualized, in the sense that it picks an individual target – whether a person, an intersection or a phone number – out of a group of persons or places” (emphasis in original): at para. 48. It is apparent that in the majority’s view “reasonable suspicion” can be sufficiently “individualized” when it focuses, as the court said it may in para. 20, on a place defined with sufficient precision. To the same effect, the court said in para. 20, “An investigation is ‘bona fide’ where the police have a reasonable suspicion over a location or area, as well as a genuine purpose of investigating and repressing crime.”

[42] While Moldaver J. would have revisited the court’s decision in Barnes because of Chehil’s requirement of individualized suspicion, the majority affirmed the principles of Barnes saying, at para. 22:

This framework balances and reconciles important public interests. The rule of law, and the need to protect privacy interests and personal freedom from state overreach are balanced against the state’s legitimate interest in investigating and prosecuting crime by permitting but also constraining entrapment techniques. [Emphasis in original.]

(iv) Precisely defined virtual space and narrow scope of investigation defined

[43] In Ahmad the court could not make clearer that reasonable suspicion cannot attach to a place unless it is “precisely and narrowly defined”. In Barnes, Lamer C.J. had indicated that “the size of the area itself may indicate that the investigation is not bona fide”: at p. 462. Ahmad makes this more exacting. The court stated, “[t]he offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or a combination of both” (emphasis added): at para. 19. In para. 35 the court warned that “some virtual spaces may be too broad to support a sufficiently particularized reasonable suspicion.” The issue of breadth of the virtual space did not arise in Ahmad because an individual phone number, the virtual space at issue in Ahmad, was “sufficiently precise and narrow to qualify as a place for the purposes of the first branch of the entrapment doctrine”: at para. 42.

[44] The breadth of the virtual space is related to how the police have designed their investigation. I draw this from para. 41 of Ahmad. There the court said, “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.”

[45] Where reasonable suspicion relates to a wide area, the courts must consider whether the police could have focused their investigation on a narrower area.

[46] Where the evidence establishes the police have narrowed their investigation as much as the evidence allows, it may be acceptable that reasonable suspicion relates to a wider area.

(v) The factors

[47] In determining whether the virtual space has been defined with sufficient precision to ground reasonable suspicion and to ensure random virtue testing is avoided, the court in Ahmad, at para. 41, suggested consideration of the following factors “may be helpful”:

1. the seriousness of the crime in question;

2. the time of day and the number of activities and persons who might be affected;

3. whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location;

4. the level of privacy expected in the area or space;

5. the importance of the virtual space to freedom of expression;

6. and the availability of other, less intrusive investigative techniques.

[48] The court indicated that this was not a closed list and other factors could be relevant in other cases. The court must consider all the circumstances of a particular case “to ensure that random virtue testing is avoided”: at para. 41.

(vi) Reasonable suspicion can be obtained in the course of the investigation

[49] In Ahmad, the tips the police had received about the dial-a-dope operations were of unknown reliability. The court had no trouble concluding the police, at the time they placed the call to the telephone number in the tip, did not have reasonable suspicion that the person who answered the phone was involved in drug trafficking. Hence, without reasonable suspicion the police could not offer the person the chance to sell them drugs. However, as the court said, at para. 54, “it is also possible for the police to form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime.”

[50] This explains the different results in the two appeals before the court in Ahmad. In the police conversation, Ahmad used drug culture jargon by responding “what do you need?”. This response gave rise to a reasonable suspicion he was engaged in drug trafficking and the police could then offer to buy drugs from him. He was not entrapped. On the other hand, Mr. Williams’ only responses before the police offered to buy drugs from him were “yeah”, “who is this?”, and “Vinnie who?”. These responses did not give rise to a reasonable suspicion he was engaged in drug trafficking. Therefore, he was entrapped.

[51] This, then, is the legal framework for the determination of these appeals.

C. Decisions Below

(1) The trial judge’s first entrapment decision

[52] The trial judge’s first entrapment decision is pertinent only for the background and the facts he found that were incorporated, or presumed to be incorporated, by his second decision.

[53] In his first decision, the trial judge extensively reviewed the evidence, including the background of Project Raphael, the posted advertisement, and the text chat between Michelle and the respondent. Detective Constable Cook, who had the text chat with the respondent under the persona of Michelle, testified at trial and Detective Sergeant Truong (later promoted to Inspector, herein “Truong”), the architect of Project Raphael, testified at the entrapment hearing. The materials filed at the entrapment hearing included Truong’s evidence at the respondent’s preliminary inquiry, Truong’s evidence at the entrapment hearing in R. v. Haniffa, 2017 ONCJ 780, and the trial decision in R. v. Dare, (June 22, 2018), Newmarket, CR-16-00002298 (S.C.). [1]

[54] The trial judge found that “Backpage was well known for underage prostitution” and that it was “clear that individuals were actively purchasing sex from underage females through the website.” He concluded that the “police had a reasonable basis to believe that individuals were routinely involved in the purchase of sexual services from juvenile prostitutes on Backpage.com” and that “[t]hey engaged in an investigation to target this type of criminal activity.” He observed that the evidence tendered by the Crown “indicates that the demand for juvenile prostitutes was driven not only by those who were specifically looking for underage girls, but also by those who were open and willing to obtain sexual services from juvenile prostitutes.” He stated that Project Raphael targeted both of these groups.

[55] The trial judge concluded Project Raphael “was a bona fide investigation, and in this context, the police were entitled to randomly offer individuals the opportunity to commit crimes of the sort known to be occurring on the website, Backpage.com (the opportunity to purchase sexual services from underage girls).”

[56] The trial judge also rejected the respondent’s argument that the police had improperly induced the respondent to commit the offence.

(2) The trial judge’s second entrapment decision

[57] In his second entrapment decision, the one under appeal, the trial judge reviewed the Ahmad decision in detail. He observed the Supreme Court had taken the opportunity “to clarify the requisite standard to be applied in assessing a claim of entrapment under the first branch of the doctrine (opportunity-based entrapment).” He quoted with emphasis, from para. 42 of Ahmad:

The question will always be the same: are there objective factors supporting a reasonable suspicion of drug trafficking by the individual answering the cell phone when police provide the opportunity to commit such a crime? Those factors may relate in part to reasonable suspicion of the individual, or of the phone number itself, or to both. [Emphasis in original.]

[58] The trial judge stated the principle that “the standard of reasonable suspicion calls for an objective assessment of the information the police actually had before offering an individual an opportunity to commit a crime” (emphasis in original). Drawing on passages from the reasons in Ahmad, he explained why the requirement of reasonable suspicion was important:

Providing individuals with the opportunity to commit offences without the foundation of a reasonable suspicion unacceptably increases the likelihood that people will commit crimes when they otherwise would not have. Random virtue testing unduly increases the risk that individuals who would not otherwise commit offences will become enticed into criminal activity.

[59] The trial judge noted that while the Supreme Court stated virtual locations “can qualify as places over which the police can have reasonable suspicion” the court indicated a key requirement is that “the virtual space in question must be defined with sufficient precision”. The court said, “[i]t is therefore important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime”: at para. 39. The trial judge paraphrased the Supreme Court’s explanation that, as he put it,

[V]irtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives, because of the breadth of some virtual places (for example, social media websites), the ease of remote access to a potentially large number of targets that technology provides law enforcement, and the increasing prominence of technology as a means by which individuals conduct their personal lives. [Emphasis in original.]

[60] The trial judge reiterated the findings of his previous decision that “the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com”, and that “the police were justified in conducting an investigation into ongoing juvenile prostitution on Backpage.com given the information available to them.”

[61] Next, the trial judge expressed his concern about the large number of persons who were looking for an adult when they responded to the police ad. He observed Backpage “was not a website or ‘place’ dedicated to underage prostitution”. He noted that the evidence indicated that in the escorts section of Backpage “the overwhelming majority of ads and traffic did not relate to men seeking sexual services from underage girls”. He said the evidence was that most men did not continue the text chat once they were told Michelle was underage.

[62] The trial judge further observed, “given the breadth of the potential pool…the undercover officer should have done more to satisfy himself that [the respondent] was looking for an underage girl before inviting [the respondent] to commit the offence.” The trial judge observed that the undercover officer revealed that Michelle was 14 years old some 27 minutes into the conversation, after the respondent had already made arrangements about the sexual services to be provided and their cost. This “bait and switch” approach, he held, was “problematic and raises clear entrapment concerns”. He suggested the undercover officer could have disclosed Michelle’s age at the outset of the conversation.

[63] The trial judge noted that the Supreme Court explained in Ahmad the conversation itself can be used to support a reasonable suspicion. He remarked that the respondent said nothing in his initial text messages to indicate he was looking for an underage girl. Then, evidently having in mind reasonable suspicion over the individual, the trial judge concluded, “In the absence of reasonable suspicion, it was improper for the police to invite [the respondent] to commit the offence.”

[64] The trial judge recognized that the respondent was “clearly willing to participate in the criminal activity under investigation” but noted that “the question here is not on whether the [respondent] was willing or perhaps predisposed to commit the offence” as “the focus is on the police conduct and the investigative approach”.

[65] The trial judge concluded the police had entrapped the respondent and ordered a stay of proceedings.

D. Issues on Appeal

(1) The Crown’s position

[66] The Crown submits that the trial judge misapplied the law of entrapment to the facts before him. The Crown says he proceeded on the misunderstanding that Ahmad changed the law to require the police to have reasonable suspicion of the individual in all cases. After finding “the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com” and that “the decision to investigate Backpage.com for individuals seeking underage prostitutes was a legitimate police initiative”, the trial judge erred by going on to consider whether the police had reasonable suspicion that the respondent was seeking an underage person before they could offer him the opportunity to commit the crime. The Crown submits the trial judge found Project Raphael was a bona fide police inquiry and that finding allowed the police to virtue test any person who responded to their ads posted on the escorts section of Backpage.

(2) The respondent’s position

[67] The respondent submits that the trial judge properly found that the Supreme Court in Ahmad provides clarification and guidance as to how to apply the entrapment framework to virtual spaces. He submits the trial judge stated the law correctly and made no reversible legal error in reassessing his reasons in light of Ahmad and concluding the police entrapped the respondent.

[68] The respondent also adopts the submissions made by the appellant Haniffa. Haniffa’s primary argument is that the evidence was insufficient to give the police a reasonable suspicion that persons were going onto Backpage seeking to engage the sexual services of underage persons. In the alternative, he submits that if the police had a reasonable suspicion, it related only to the s. 286.1(2) offence (communicating to obtain sexual services from a minor), and so the police conduct constituted entrapment on the s. 172.1 (child luring) offence. Finally, he argues that the police virtue tested far too many innocent people to meet the Ahmad requirement of an investigation into a precisely and narrowly defined space.

(3) Issues to be decided

[69] The positions taken by the parties can be conveniently arranged and dealt with under the following four questions:

1. Did the police have reasonable suspicion that the criminal activity under investigation was taking place on Backpage?

2. Did the trial judge misapply Ahmad by holding that reasonable suspicion of the individual was required under the bona fide inquiry prong of the entrapment framework?

3. Did the trial judge err by concluding the respondent was entrapped because the majority of persons tested by the police declined to engage an underage prostitute?

4. Applying Ahmad, what is the proper analysis in this case to determine whether the space in which the police virtue tested persons randomly, was sufficiently precisely and narrowly defined to avoid a finding of entrapment?

E. Analysis

(1) The police had reasonable suspicion that the criminal activity under investigation was taking place on the escort section of Backpage

[70] I begin with an analysis of Haniffa’s argument, adopted by this respondent, that the police lacked reasonable suspicion that persons were engaged in the targeted criminal activity on Backpage.

(i) The police had reasonable suspicion with respect to offences under s. 286.1(2) (obtaining sexual services from a minor)

[71] Counsel accepts, as the evidence clearly established, that juvenile persons were being advertised on Backpage and that some men were purchasing the sexual services of juvenile persons on Backpage. In the first entrapment decision, the trial judge found that in the York Region, “[v]irtually all of the online investigations involving juveniles had been linked to Backpage.”

[72] While counsel accepts the evidence gave the police a reasonable suspicion that juveniles were being sold on Backpage, he contends that it does not logically follow that the police reasonably suspected that customers were seeking or attempting to purchase juvenile persons on Backpage. He submits the proper question is not whether the police had a reasonable suspicion the sexual services of juveniles were being sold on Backpage, but whether they had a reasonable suspicion that customers were going onto Backpage to buy sexual services from juveniles.

[73] I accept the premise of the argument. The reasonable suspicion of the police had to relate to what the customers seeking sexual services had in mind. That is because, in cases where sexual services have been obtained for consideration, the accused’s knowledge or belief that the person from whom they have obtained those services is under 18 is an essential element of the offence under s. 286.1(2) of the Criminal Code (obtaining sexual services from a minor). It would not be enough if police had reasonable suspicion only that underage persons were being sold on Backpage to unwitting customers. The selling of sexual services, even by juveniles, is not a crime. In order to fall within the bona fide inquiry exception to the opportunity-based entrapment defence the police had to have a reasonable suspicion that s. 286.1(2) was being breached. That means the police had to have reasonable suspicion that customers were going onto Backpage and communicating to obtain sexual services for consideration from persons they knew or believed to be under the age of 18.

[74] Truong’s testimony, counsel submits, shows it would be futile for a customer to go onto Backpage with the intention of engaging an underage person. That is because, as officer Truong confirmed, underage persons would never be advertised indicating their actual ages or with their actual photographs. Truong testified that underage persons and those who arrange their bookings would not disclose their real age to unknown customers. Underage persons advertised on Backpage are sometimes given or have in their possession false identification showing an older age. Underage persons know revealing their real age would increase the probability that the police will get involved. Truong also agreed there was no coded language used on Backpage to signal that the person advertised was underage because the pimps who traffic underage persons realize the police would soon learn the codes. Customers could hope to learn the age of an escort they have engaged only upon meeting them. Truong said even that is unlikely, as underage persons asked for their age will typically lie and claim to be an adult. In fact, he said in the majority of sexual interactions between adults and a juvenile, the adults are never told the age of the juvenile.

[75] Counsel submits that since police know all this, they could not reasonably suspect that persons who want to have sex with underage persons would go onto Backpage to seek them.

[76] Counsel stresses that Truong could point to no basis, other than his own “anecdotal” experience, that persons go on Backpage to seek the sexual services of underage persons. He contends that in Project Raphael the police used their reasonable suspicion that underage persons were being sold on Backpage to randomly virtue test persons who went onto Backpage seeking to purchase the sexual services of an adult not an underage person.

[77] The argument fails to appreciate Truong’s ample and extensive experience. While Truong, in cross-examination, readily conceded he had no statistics and data to support his testimony in-chief that persons were going onto Backpage seeking to engage the services of underage escorts, he did not retreat from that testimony. I disagree with counsel’s characterization of Truong’s testimony based on his experience as “anecdotal”. His experience forms the foundation for a specialized knowledge on the subject. His experience included dealing with prostitutes, pimps, and purchasers of sex on an almost daily basis for eight years. He conservatively estimated that he had interviewed hundreds of “girls” involved in the sex trade, both juveniles and adults. Truong acquired his knowledge not only from his dealings with juveniles but also from his dealings with adult escorts who were recruited into the sex trade when they were children. He testified that he had “interacted, communicated, interviewed girls involved in the sex trade, juveniles and adults, in York Region, Toronto, in the GTA, in Québec, in the United States in Las Vegas, in Miami, in Los Angeles”. Truong had attended conferences in the United States and Canada with respect to juvenile prostitution at which case studies involving underage children being advertised on Backpage were presented and he met with “survivor based organizations”.

[78] Truong did introduce some data. In York Region in the years from 2011 to 2016 the YPR identified 427 persons working in the sex industry, of whom 85 were underage. Where the police were able to lay charges of pimping or human trafficking based on victim cooperation, the victim was classified as a “rescue”. 49 of the 85 juveniles mentioned above were classified as “rescues” because they, by cooperating, enabled the police to lay charges. Truong testified that in one prior investigation aimed at identifying and rescuing underage persons, the police made contact with 31 escorts, nine of whom were underage, and he learned that the average age at which their sexual services were first sold was 14.8 years.

[79] Truong testified that “there were men actively looking for prostituted children on backpage and were looking to purchase children.” He said this information was acquired “from speaking with child prostitutes, former child prostitutes, speaking with many NGOs and organizations, victims in court, during interviews.”

[80] I do not accept that Truong’s testimony is undermined by counsel’s claim it would be futile for a person to go onto Backpage to engage an underage person. An individual user may have little prospect of engaging an underage person on Backpage upon visiting the site on a single occasion. But a determined individual using Backpage persistently could succeed in engaging underage persons. Truong said that customers who meet underage persons on Backpage may then engage them directly without going through Backpage. Keeping this testimony in mind, some Backpage users may engage persons who, even if they claimed to be 18, would be apparently underage, except to those wilfully blind.

[81] As Truong’s testimony was not undermined, the trial judge was entitled to rely on it to find as he did, on a higher standard than required, “that the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com.” Put in terms of the Criminal Code, the police had a reasonable suspicion that some users of Backpage were obtaining for consideration the sexual services of persons under the age of 18 contrary to s. 286.1(2).

(ii) The s. 172.1(1)(b) (child luring under 16) offence is rationally connected and proportionate to the s. 286.1(2) (obtaining sexual services from a minor) offence

[82] Counsel advances an alternative argument. Even if the police had a sufficient basis to provide an opportunity to commit the s. 286.1(2) offence, the police lacked reasonable suspicion to provide a person who responded to the ad the opportunity to commit the more serious offence of luring someone under the age of 16 under s. 172.1(1)(b). Given that the ads stated the escort was 18 years of age, and given that underage persons on Backpage were unlikely to reveal their true age to a customer, the police could not reasonably suspect users of Backpage were telecommunicating to facilitate a sex crime with persons they believed were under 16. An essential element of the s.172.1(1)(b) offence is that the accused know or believe at the time of the communication that the person with whom they are communicating is under the age of 16: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551.

[83] I accept the police lacked reasonable suspicion that the customers responding to ads on Backpage were committing or intending to commit the child luring offence under s. 172.1(1)(b).

[84] In the next step of his argument, counsel contends the doctrine of entrapment requires that the reasonable suspicion relate to the same criminal conduct under investigation and the police can only present persons in the space with the opportunity to commit that particular offence. It follows, he submits, that since the police did not have reasonable suspicion persons were committing the child luring offence under s. 172.1(1)(b), they could not offer customers the opportunity to commit that offence. The police offered customers the opportunity to commit the child luring offence by disclosing “she” was under 16 and giving the customer the opportunity to continue the conversation.

[85] Lamer J. in Mack made clear that the police can provide a person with the opportunity to commit a different offence that is rationally connected and proportional to the offence for which there is reasonable suspicion. At p. 958 of Mack, Lamer J. explained:

Obviously, there must be some rational connection and proportionality between the crime for which police have this reasonable suspicion and the crime for which the police provide the accused with the opportunity to commit. For example, if an individual is suspected of being involved in the drug trade, this fact alone will not justify the police providing the person with an opportunity to commit a totally unrelated offence. In addition, the sole fact that a person is suspected of being frequently in possession of marijuana does not alone justify the police providing him or her with the opportunity to commit a much more serious offence, such as importing narcotics, although other facts may justify their doing so. [Emphasis added.]

[86] In the context of Project Raphael, the child luring offence under s. 172.1(1) of the Criminal Code is rationally connected to the investigation of the commodification of sex offence under s. 286.1(2) of the Criminal Code. In offering the opportunity to commit the s. 286.1(2) offence for which the police did have reasonable suspicion, they could not avoid offering the opportunity to commit an offence under s. 172.1. That is because in this investigation the offer to commit the s. 286.1(2) offence was necessarily conveyed using telecommunication. Once the police presented the offer to commit the s. 286.1(2) offence, the customer, by any response other than terminating the chat, would commit an offence under s. 172.1(1).

[87] I do not attach much significance to the fact that in each of these cases the police disclosed the girl in question was under 16, with the result that the customers, by continuing to negotiate to obtain sexual services, committed the offence under s. 172.1(1(b)) of the Criminal Code (child luring under 16) rather than s.172.1(1)(a) (child luring under 18). As noted above, the police had an evidentiary basis to believe the average age at which underage persons first had their sexual services sold was 14.8 years. I regard the s. 172.1(1)(b) of the Criminal Code (child luring under 16) offence to be rationally connected and not disproportionate to the s. 286.1(2) of the Criminal Code (obtaining sexual services from a minor) offence.

[88] Furthermore, the s. 172.1(1)(b) offence and the s. 286.1(2) offence as charged share essential elements. As no sexual services were actually obtained in these appeals, the offence charged under s. 286.1(2) related to communicating for the purpose of obtaining sexual services from a person under 18. Both offences require communication for the purpose of facilitating sexual contact with a person who is underage.

[89] The s. 172.1(1)(b) offence is a more serious offence that is subject to a longer period of incarceration. However, in my view, the child luring under 16 offence is not a “much more serious” and “totally unrelated” offence to the commodification offence.

[90] I would not give effect to the argument that the police did not have reasonable suspicion of the criminal conduct under investigation. The remaining question is whether the virtual space under investigation was defined with sufficient precision to ground the reasonable suspicion that the police had. I consider that question later in these reasons after rejecting the Crown’s reading of the trial judge’s decision and identifying the trial judge’s errors.

(2) The trial judge did not hold that the police required reasonable suspicion about the respondent even though they were acting pursuant to a bona fide inquiry

[91] As the Crown reads the trial judge’s decision, the trial judge found the police investigation of Backpage was a bona fide inquiry. Then, because he misinterpreted Ahmad to require that the police have “individualized” reasonable suspicion in all cases, he found the respondent was entrapped because the police did not have reasonable suspicion that the respondent was seeking to engage an underage person.

[92] I read the trial judge’s decision differently. The trial judge did find, on a higher standard than necessary, that “the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com.” He did not, however, go on to conclude the police investigation was a bona fide inquiry. Instead, he turned to consider the number of persons affected by the police investigation. He found that “within the Escort section, the overwhelming majority of ads and traffic did not relate to men seeking sexual services from underage girls” and that “most males contacting the ad were looking for a female who was not underage” (emphasis in original). I understand the trial judge to have concluded the scope of the virtual space being investigated was too broad to allow the investigation to qualify as a bona fide inquiry. This reading of his decision is supported by his colloquy with Crown counsel during argument.

[93] Since he did not accept that Project Raphael was a bona fide inquiry, the trial judge proceeded with the analysis on the basis that the police required reasonable suspicion about the respondent before they could offer him the opportunity to engage an underage person. That is why he turned to consider the content of the text chat between the respondent and the undercover officer. He found that the respondent had said nothing to suggest he was looking for an underage person before the police had invited him to commit the offence. Consequently, he found the police had entrapped the respondent.

(3) The trial judge erred by unduly focusing on the number of persons affected by the investigation and failing to consider other relevant factors

[94] It bears repeating that in Ahmad the court recognized that “virtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives because of the breadth of some virtual places”, that “state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space”, and that “online anonymity allows police to increasingly fabricate identities and ‘pose’ as others to a degree that would not be possible in a public space like the Granville Mall”: at paras. 36-37. These risks make it “important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime”: at para. 39.

[95] The trial judge rightly understood that Ahmad requires trial courts, in entrapment cases involving virtual spaces, to exercise heightened vigilance in striking the balance between individuals’ privacy in virtual spaces secure from state intrusion and society’s general interest in the repression of harmful criminal activity. It was proper and necessary for the trial judge to consider the number of innocent people in the virtual space being investigated who would have their virtue tested by the police. In Ahmad, both the majority and the minority indicated the number of people potentially affected should be expressly considered: at paras. 41 and 161.

[96] The trial judge’s error was in failing to consider other relevant factors. The number of people affected is but one of the factors the court suggests, at para. 41, would be helpful in ensuring random virtue testing is avoided. As noted, the court indicated that list was not closed. A court must consider all the relevant circumstances in each case.

[97] In this case, the number and nature of activities affected, the nature and level of the privacy interest affected, and the importance of the virtual space to freedom of expression are important factors that the trial judge erred by not considering.

[98] Below I discuss all the factors of this case I consider important in determining whether unacceptable random virtue testing was avoided. I conclude that the respondent was not entrapped.

(4) The proper and complete analysis leads to the conclusion that the respondent was not entrapped

[99] The starting point of the analysis is the trial judge’s finding that the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from underage persons on Backpage and the investigation of Backpage was a legitimate police initiative. The next step is to consider whether the virtual space being investigated was defined with sufficient precision to ground that reasonable suspicion and whether the police had narrowed the scope of their investigation so that the purview of their inquiry is no broader than the evidence allowed.

(i) The seriousness of the target criminal activity

[100] The police investigation, Project Raphael, was aimed at reducing the demand for sexual services from juveniles in the York Region. The trial judge noted that attempting to purchase sexual services from someone underage is a serious crime. Quoting from R. v. Mills, 2019 SCC 22, [2019] S.C.R. 320, at para. 23, he recognized that children are especially vulnerable to sexual crimes, that the internet allows for greater opportunities to sexually exploit children, and that enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society.

[101] Truong testified that the juveniles being sold on Backpage were “a very vulnerable population in the community”. Truong stated that a lot of the juveniles come from broken homes and are susceptible to recruitment, manipulation, and exploitation. They were being assaulted, exploited, and threatened, and both pimps and customers were committing crimes against them. Truong had never come across a juvenile selling sexual services who was not being exploited. Truong explained that the children had nowhere to go. Even the older ones, i.e. those over the age of 16, were extremely vulnerable. Finding safe accommodation for “rescued” juveniles over the age of 16 was made difficult because they could not be placed with child and family services agencies.

[102] Obtaining the sexual services of a juvenile for consideration is an extremely grave crime. Parliament’s view of its gravity is evident from the punishment it has enacted: a person found guilty of an offence under s. 286.1(2) of the Criminal Code (obtaining sexual services from a minor) is liable to imprisonment for up to 10 years.

(ii) Child prostitution is difficult to investigate, and less intrusive investigative techniques were not available

[103] I am not persuaded by counsel for Haniffa that the difficulty of investigating consensual crimes, such as the one in this case, should be considered in assessing only inducement-based entrapment. He points out the factor was discussed in Mack in the context of inducement. That is understandable because Mack involved a case of inducement. Mack’s description of the factor, at p. 966 – “the availability of other techniques for the police detection of its commission” – is simply a different articulation of the factor described in Ahmad, at para. 41, as “the availability of other, less intrusive investigative techniques”. The Ahmad factors are discussed in the context of the first branch of entrapment. Even before Ahmad it was recognized the factor is relevant to both branches of entrapment. In Chiang the British Columbia Court of Appeal referred to Mack to conclude that ordinary methods of detection might not work when investigating consensual crimes under the first branch: at paras. 19-20.

[104] In his second decision, the trial judge simply stated that the police must be given considerable latitude in investigating criminal activity, especially where the crimes are serious and difficult to investigate. In his first decision, he had reviewed the evidence fulsomely. He said the challenge with investigating juveniles selling sexual services was that the activity was taking place inside hotel rooms or other private spaces. The juveniles did not report offences to the police, and even when identified, many underage persons did not cooperate with the police. Truong testified that juveniles fear repercussions if they cooperate with the police, or do not believe the police can help because of prior bad experiences with police. Truong testified that police attempts to rescue juveniles by focusing on the pimps was “not doing anything to stop the demand for child sex”. The police realized that to reduce the demand they “had to focus on the men who were driving the industry”. This led to the creation of Project Raphael.

[105] The availability of less intrusive investigative techniques than those used in Project Raphael should be weighed heavily in the analysis.

[106] In his testimony, Truong described an alternative technique for dealing with juveniles being sold on Backpage. He called the technique a “vice probe”. In a vice probe the police would peruse the ads on the escorts section of Backpage, attempt to identify those advertising underage persons, arrange to meet with them by posing as purchasers, and then attempt to ascertain their age upon meeting them. As recounted earlier, underage persons tended to not cooperate with the police, but, nevertheless, the technique did enjoy some success.

[107] Truong included on his resume the number of underage persons involved in prostitution the YRP identified in each year from 2011 through 2016. In those years, a total of 85 underage persons were identified of whom 49 were classified as “rescues”. A person was classified as a “rescue” if they cooperated with the police such that charges could be laid. Police worked with other social agencies to find suitable safe situations for these underage persons.

[108] Truong testified about a specific vice probe called “Home for Christmas” that the YRP ran in December 2013. The police reviewed hundreds of ads on Backpage and arranged “to meet with 31 escorts. Of these 31, the police were able to determine that 9 were underage.

[109] The vice probe, unlike Project Raphael, focuses on actual young people being sold on Backpage. Finding juveniles being sold and ensuring they are placed in safe situations is a positive feature of the vice probe technique. However, Truong explained that the police, in consultation with other social agencies, concluded vice probes did nothing to reduce the demand for sexual services from juveniles in the region. That is why Project Raphael was created to target the “buyer side” of the activity.

[110] Despite the advantageous aspects of the vice probe, in the entrapment analysis the vice probe cannot be considered a less intrusive investigative technique to Project Raphael. That is because it is concerned with different criminal conduct. Project Raphael investigated persons who were obtaining for consideration the sexual services of underage persons contrary to s. 286.1(2) of the Criminal Code. My impression is that the primary purpose of the vice probe technique was to rescue juveniles being sold on Backpage. The vice probe could investigate the offence of procuring an underage person to provide sexual services contrary to s. 286.3(2) of the Criminal Code. To do so successfully the vice probe would require the cooperation of the underage persons who have been identified.

[111] I conclude that the vice probe is not an alternative investigative technique to Project Raphael. Rather, it is a technique that does not investigate the same offences. It has a different purpose altogether.

[112] The trial judge suggested several things the police might have done differently. They all amount to the police using the text chat itself to support obtaining reasonable suspicion the caller was seeking an underage prostitute before extending the offer. This is understandable since the trial judge concluded there was no bona fide inquiry. Such suggestions are not relevant if the police are conducting a bona fide inquiry. The techniques by which the police might be able to obtain reasonable suspicion over a specific caller are best left to be considered, if necessary, after the determination of whether the investigation is a bona fide one.

[113] This factor is deserving of weight. In Ahmad, at para. 35, the court observes that “technology aids in the commission of crime” and so “in order to investigate and detect those crimes, police must also make use of technology.” In Mack the Supreme Court had said that “the state must be given substantial leeway” when investigating drug trafficking because the traditional devices of police investigation are not effective: at p. 978. Investigating trafficking requires the police or their agents to get involved and gain the trust and confidence of the people trafficking or supplying the drugs: Mack, at p. 978. The Supreme Court further noted that trafficking is “a crime of enormous social consequence which causes a great deal of harm in society generally”: at p. 978.

(iii) The definition of the virtual space and the scope of the police investigation

[114] I find it convenient to discuss the definition of the virtual space and the scope of the police investigation together. Both play a role in determining whether the reasonable suspicion is sufficiently grounded to ensure random virtue testing is avoided.

[115] In Ahmad, at para. 41, the majority stated that “[r]eviewing 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.” This means that though the police have reasonable suspicion of criminal activity in an area, they must narrow the scope of the investigation as much as the evidence allows.

[116] Lamer C.J. scrutinized the evidence this way in Barnes and considered whether the police could have restricted their investigation to a smaller area despite their reasonable suspicion of drug trafficking at the Granville Mall. He concluded, at p. 461, they could not do so and so the police could extend offers to people throughout the mall:

The police department in this case focused its investigation on an area of Vancouver, a section of Granville Street covering approximately six city blocks, where it was reasonably suspected that drug-related crimes were occurring. In my opinion, they would not have been able to deal with the problem effectively had they restricted the investigation to a smaller area. Although there were particular areas within the Granville Mall where drug trafficking was especially serious, it is true that trafficking occurred at locations scattered generally throughout the Mall. It is also true that traffickers did not operate in a single place. It would be unrealistic for the police to focus their investigation on one specific part of the Mall given the tendency of traffickers to modify their techniques in response to police investigations.

[117] In this appeal, the police had reasonable suspicion persons were going on the escort section of Backpage to seek the sexual services of underage persons. The escort section of Backpage is the virtual space to which reasonable suspicion attaches. The escort section of Backpage is a precisely defined virtual space. Whether the police have acted within or outside that virtual space can be determined easily and definitely.

[118] The trial judge quite rightly pointed out that “the overwhelming majority of ads and traffic” on the escort section did not relate to men seeking sexual services from underage girls. That, however, is not the end of the matter. The next step is to “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”.

[119] The police narrowed the scope of the investigation to only the users who responded to their ads, which offered escorts’ sexual services in the York Region, and which emphasized the escorts’ youthfulness by stating their age to be 18 and describing them in terms that the police intended “to hint at the fact that the purchaser could be purchasing a young girl or child”. The British Columbia Court of Appeal expressed the view that such techniques narrowed the scope of the investigation: “The reach of the investigation was carefully limited through the nature of the investigative tool employed, specifically an ad on Craigslist that spoke of ‘young bodies’”: Chiang, at para. 21.

[120] That “the overwhelming majority” of ads and traffic on the escorts section of Backpage did not relate to the sexual services of underage persons must be considered together with the narrowed scope of the investigation. The police did not offer the services of underage persons to users of the escorts section of Backpage in general. The people who clicked on the police ads to see the ad’s full content and then responded to the ads were the only persons who could be offered an opportunity to engage the sexual services of someone underage.

[121] The trial judge did suggest, if I understand correctly, that the police investigation should have been conducted to engage in a prolonged text chat with a smaller pool of persons. He said, “Given the breadth of the potential pool, in my view, the undercover officer should have done more to satisfy himself that the Applicant was looking for an underage girl before inviting the Applicant to commit the offence.” He criticized the undercover officer in this case for not revealing that Michelle was 14 years old until 27 minutes into the text chat. He described the late disclosure as a “bait and switch” approach that was “problematic” and raised “clear entrapment concerns”. He said the officer’s initial texts “encouraged or enticed” the respondent to commit the offence before having any suspicion he was seeking someone underage. These comments are surprising as, in his first decision, he unambiguously rejected the respondent’s claim he had been induced and did not revisit that conclusion.

[122] The trial judge’s finding of delayed disclosure must be put into perspective. Truong testified that when persons responded to the ads seeking to purchase sexual services, the undercover officer would bring up the issue of age at the earliest possible stage of the conversation. The disclosure, in this case, was made in the 8th text from the officer, the first 7 were extremely brief.

[123] In any event, the question the trial judge raised is whether the scope of the investigation should have somehow been narrowed to exclude those who were not specifically looking for sex with an underage person but who would take up the opportunity when it was offered.

[124] In my view, customers who are merely indifferent that the 18-year-old they seek to engage may actually be an underage person are legitimate targets of the police investigation. Their indifference exhibited in responding to police offers would manifest itself equally in real life encounters. These indifferent persons add to the social evil of child prostitution by contributing to the market for it. I agree with the trial judge’s finding in his first entrapment decision that “the demand for juvenile prostitutes was driven not only by those who were specifically looking for underage girls, but also by those who were open and willing to obtain sexual services from juvenile prostitutes.” Truong had testified that when designing Project Raphael persons who would take the opportunity, though not seeking one, to engage in sex with a minor were seen as part of the target group. In my view, defining the scope of the investigation to include such persons was justifiable.

[125] Counsel for Haniffa also contended the police could have narrowed the scope of the investigation by seeking the cooperation of Backpage to allow the police to post an ad with a lower age. I don’t regard the suggestion as feasible. Further, I have explained why the investigation did not have to be narrowed in that way.

[126] I am satisfied the police narrowed the scope of the investigation as much as the evidence warranted.

(iv) The activities affected by the investigation

[127] The trial judge did not consider the activities that would be affected by the investigation. In Barnes, for example, the persons potentially solicited by the police were going about their lawful business, perhaps on their way to work, shopping, dining out, or seeing a movie.

[128] In this case, all the persons who possibly could be tested by the police were persons seeking to engage prostitutes. The persons who responded to the police ads, and other similar ads, were engaged in communicating to obtain for consideration the sexual services of a person, which is a criminal offence under s. 286.1 of the Criminal Code. The communication to obtain sexual services for consideration is the single activity affected by the investigation.

[129] Society has little interest in shielding the criminal activity of engaging a prostitute from state intrusion.

(v) The nature and level of privacy expected in the virtual space

[130] The nature and level of privacy expected are other relevant factors that the trial judge did not consider.

[131] The relevant interest, in this case, is the privacy that the customers responding to the ad were entitled to expect during the text chat before the undercover officer disclosed that “she” was underage. After that disclosure, customers who continued the chat could not reasonably expect privacy online with juveniles they did not know: Mills, at para. 23.

[132] As Ahmad noted, at para. 36, people reasonably expect privacy in their text messages. I reiterate once again that the court said that “virtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives” and that individuals should be able to enjoy their privacy free from state intrusion, except where that intrusion is objectively justified: at para. 36.

[133] I expect that customers would want to keep their text messages with a prospective sex worker confidential. In such text messages customers would disclose their sexual predilections, the sexual activities in which they wanted to engage, and how much they were willing to pay for them.

[134] The customers used their phone to engage in the text chats. In Ahmad the court had commented, at para. 36, that:

A phone number provides access to an intensely private virtual space. We cultivate personal, work and family relationships through our phones; they are a portal of immediate access reserved for the select few closest to us. We carefully guard access to that space by choosing to whom we disclose our phone number and with whom we converse.

[135] The police carrying out Project Raphael intruded upon an intensely personal privacy interest.

(vi) The importance of the virtual space to freedom of expression

[136] The virtual space the police intruded upon was comprised of advertisements for sexual services and text messages from would-be customers. The expression in this space was devoted to specifying sexual services and negotiating their cost and where they would be performed. Such expression does not fall into the traditional categories of expression valued in a democratic state, such as political speech, social commentary, or religious opinion.

[137] While the customers could claim a privacy interest in their text messages, it is relevant to this factor that the expression by the customers in the virtual space, i.e. communicating to obtain sexual services for consideration, would constitute a criminal offence under s. 286.1 of the Criminal Code.

[138] The escorts section of Backpage had little importance to freedom of expression.

(vii) Racial profiling, stereotyping or reliance on vulnerabilities

[139] There was no latitude in Project Raphael for undercover officers to engage in racial profiling or stereotyping, or to rely on vulnerabilities not related to the offence.

(viii) The number of persons affected

[140] The number of innocent people who would be affected by a police investigation is a significant factor in the analysis. This factor, although important, must be considered in the context of the other factors discussed above, which provide the necessary context for the proper assessment of its weight.

[141] The trial judge did not make a finding quantifying the relative number of innocent people affected. The police did not keep a record of the number of persons who responded to the ads who discontinued the text chat upon learning the escort was underage. Counsel for Haniffa, whose submissions the respondent adopted, puts forward a method of arriving at an estimate of the relative number. From material disclosed by the Crown under a production order, he advises that during an eight-day period during which Project Raphael ran during 2016, 50 customers were arrested. While the total number of persons who responded to the ad was not recorded, it is known there were 17,000 lines of text communication from all callers during that eight-day period. Counsel estimates there were 30 to 40 lines of text per call on average. Using the figure 40 he attributes a total of 2,000 lines of text to the 50 persons arrested. That leaves the remaining 15,000 lines of text to be attributed to persons who discontinued the text chats or did not show up at the hotel room. He submits this calculation demonstrates that the great majority of customers refused to engage a juvenile person.

[142] I agree that these calculations corroborate the impressions offered by the police testimony – that a considerable majority of the persons who responded to the police ads refused to engage the sexual services of a juvenile when offered the opportunity to do so. The import of this fact must be assessed in light of the entrapment jurisprudence.

[143] Earlier cases addressed the number of innocent persons affected only implicitly by circumscribing the space in which police could solicit individuals. As noted earlier, in Barnes Lamer C.J. said, at p. 462, “in many cases, the size of the area itself may indicate that the investigation is not bona fide.” However, he did not expressly consider the number of innocent persons at the Granville Mall who could have been solicited by the police. I imagine the vast majority of persons at the Granville Mall were not drug traffickers. Moldaver J., in his dissent in Ahmad, observed “Barnes enabled the police to target thousands of unknown persons and provide them with an opportunity to traffic in drugs”: at para. 117.

[144] Barnes is still good law.

[145] That a considerable majority of men who responded to the ad disengaged when the undercover officer disclosed “her” age is not determinative on its own. Ahmad, in expressly including the number of persons affected as a factor to be considered, did not assign it greater prominence than the other factors listed. In fact, Ahmad confirmed that Barnes, in which a considerable majority of persons at the Granville Mall did not traffic in drugs, was still good law. The court must consider all the circumstances of the case in determining whether the space within the scope of the investigation is sufficiently precisely and narrowly defined.

F. Conclusion

[146] All the above considerations must be taken into account in determining the balance between individuals’ right to be left alone and society’s interest in eliminating the exploitation of juveniles.

[147] The factors, the seriousness of the crime, and the difficulty of investigating it, weigh heavily in favour of finding random virtue testing was avoided. The invasion of intensely personal privacy interests and the number of innocent persons affected support the opposite conclusion. The police investigation intruded only on persons engaged in criminal activity and in a virtual space that has little or no value to freedom of expression. There is no less intrusive investigative technique available. There is no suggestion of racial profiling, stereotyping or reliance on vulnerabilities in the design or implementation of the investigation.

[148] Considering the above factors, all the circumstances and the applicable principles, I conclude that Project Raphael was a bona fide police inquiry and that the police did not require reasonable suspicion that the person responding to the ad was seeking someone underage before extending offers to commit the offence of communicating to obtain for consideration the sexual services of an underage person. In the course of the investigation the police necessarily provided persons with the opportunity to commit the rationally connected and proportionate offence of communicating with a person they believed to be underage to facilitate sexual contact with them. I would conclude the respondent was not entrapped.

[149] I would grant the appeal and set aside the trial judge’s order to stay the respondent’s convictions. I would remit the matter to the trial judge for sentencing.

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

Footnotes

[1] Although Truong provided testimony that called upon specialized knowledge, no expert evidence voir dire was conducted. This was not raised as an issue in this appeal, no doubt because it was not problematic in the circumstances of this case. When the question of Truong’s expertise arose in Haniffa, defence counsel effectively waived the need for a voir dire by advising the court that he had no problem with Truong’s evidence on the issue of entrapment, that he had been expecting it, and did not expect Truong to have to be qualified. The respondent clearly took the same position by agreeing to have this transcript, including this exchange, admitted as evidence during his entrapment voir dire, while raising no objection to Truong’s qualifications during that hearing. Moreover, Truong clearly had the specialized experience to offer the evidence he did.