Ontario Court of Justice

Date: April 3, 2018

Central East Region

Between:

HER MAJESTY THE QUEEN

— AND —

MICHAEL DUPLESSIS

Before: Justice F. Javed

Heard on: January 17, 18, March 9, 2018

Ruling on Application released on: April 3, 2018

Counsel:

• M. Newell, counsel for the Crown
• D. Guido, counsel for the defendant

Entrapment Ruling

A. Overview

[1] This is a ruling on an application by Michael Duplessis (the Applicant) to stay the proceedings against him in which he was found guilty of committing the offence of making an arrangement with a person to commit an offence under s.151 of the Criminal Code with respect to another person who was or believed to be under 16 years of age contrary to s.172.2(2) of the Criminal Code ("the child luring offence").

[2] In particular, the applicant alleges that he was entrapped by DC Lockwood of the Durham Regional Police Service, Internet Child Exploitation Unit when he responded to a Craigslist advertisement posted by the applicant. The applicant argues that DC Lockwood randomly tested his virtue when he responded to his advertisement as he did not have reasonable suspicion that he was engaged in a criminal offence. Alternatively, he argues that DC Lockwood induced him to commit the child luring offence as he took advantage of his vulnerable state.

[3] The Crown submits there is no air of reality to the entrapment argument or alternatively, the evidence doesn't bear it out.

[4] On March 9, 2018, I heard evidence and submissions on the application. Counsel filed several authorities in support of their positions and exchanged facta. I reserved to consider my ruling.

[5] These reasons explain why I have concluded that the application fails. On this record, the applicant was not entrapped and the proceedings will not be stayed.

[6] On February 5, 2018, I released written reasons explaining why I found the applicant guilty of the child luring offence.

[7] These reasons should be read in conjunction with my reasons for conviction as I made certain findings of fact which are relevant to the entrapment issue. Where necessary, I will avert to those findings. Moreover, the parties agreed to blend the evidence on the trial and entrapment application. I permitted the parties to call additional evidence, if necessary, on the entrapment application. The applicant called his ex spouse who testified that the applicant had a history of posting online advertisements seeking relationships and was lonely at the time in question. The record also contained the agreed statement of facts (ASF) filed as part of the trial and the exhibits including the online exchange between the parties and the applicant's statement to DC Lockwood.

[8] The applicant testified during the trial proceedings. I rejected his evidence, concluding that the whole of the evidence proved that he intended to arrange a sexual encounter with Sara Kristoff (posing as DC Lockwood) and her 3 year old daughter, Deanna. The conviction was premised on the core finding that there was no credible basis to believe his position that he was engaged in role play or fantasy when he committed the child luring offence. I held that the offence was complete not during the initial contact but a little later on.

B. The Positions of the Parties on the Application

[9] Ms. Guido, in her able submissions, seeks a finding of entrapment on two alternative bases. The law on entrapment is clear that should she prevail on either prong of the two part test, it would be enough to enter a stay. In other words, she need not satisfy both prongs of the test. First, she argues that DC Lockwood provided the applicant with an opportunity to commit the offence while acting without reasonable suspicion of criminality. Second, DC Lockwood was not engaged in a bona fide inquiry but even if he was, he induced the applicant to commit the offence by preying on his vulnerabilities.

[10] Mr. Newell argues that there is no evidence of entrapment on either prong of the test. First, DC Lockwood developed reasonable suspicion as the investigation unfolded, which he argues was proper and alternatively, there is ample evidence of a bona fide inquiry where the applicant (not the police) sexualized the online conversation resulting in his choice to commit the offence.

[11] In my view, the record on this application amply supports the Crown's submissions. As I will explain, the jurisprudence makes it clear that reasonable suspicion can be developed during the investigation and need not exist at the outset. In my view, the applicant freely chose to commit the child luring offence. Even if I'm wrong about the first branch of the test, the Crown's argument about the second prong is much stronger. DC Lockwood was lawfully investigating child luring on the internet and was engaged in a bona fide inquiry. I do not find that he induced the applicant to commit the offence.

C. The Law on Entrapment

[12] In the seminal cases of R. v. Mack, [1988] SCJ No. 91 and R. v. Barnes, [1991] SCJ No. 17, the Supreme Court said entrapment can arise in the following circumstances:

(i) The police provide an opportunity to persons to commit an offence without having reasonable suspicion that the person is already engaged in criminal activity or the offer is not made in the course of a bona fide inquiry, or

(ii) Having 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.

[13] The onus is on the applicant to prove that he was entrapped on a balance of probabilities. As noted in Mack, entrapment by "random virtue testing" carries the risk of attracting innocent individuals into participation in a criminal offence. The doctrine is a species of abuse of process. It reflects a judicial disapproval of unacceptable police or prosecutorial conduct in the investigation of crimes: R. v. Clothier (2011), 2011 ONCA 27, 266 C.C.C. (3d) 19 (Ont. C.A.). When proven, it results in a remedy of staying the proceedings, thus it is only in the clearest of cases that entrapment should be found: R. v. Ahluwalia, [2000] O.J. No. 4544 (C.A.).

[14] The law draws a crucial distinction between the police acting upon reasonable suspicion or in the course of a bona fide investigation and the state actually creating a crime to prosecute. The latter is entrapment: R. v. Haniffa, 2017 ONCJ 780, [2017] O.J. No. 6016 at para. 9.

[15] Counsel do not dispute the controlling principles but differ as to how those principles should be applied in this case. I have reviewed the casebooks filed by the parties and I am grateful for their assistance. I find the decision of Justice Durno in R. v. Ghotra, 2016 ONSC 5675, [2016] O.J. No. 4761 (Ont. Sup. Ct.), most persuasive because it involved, to a large extent, the same arguments raised by the defence – which Durno J. did not accept. Justice Durno also did an extensive review of the case law and reduced the application to four questions which is helpful in analyzing the two part test. I propose to take the same analytical approach but will add a fifth question involving the issue of inducement as that issue was not litigated in Ghotra.

[16] Entrapment has often been argued and sometimes successfully, in cases involving drug offences but with the proliferation of the internet, the doctrine has found its way in the digital sphere. There have been some cases that have considered the remedy in the context of online communication which are helpful in situating the applicant's position. These cases include: R. v. Gerlach, [2014] O.J. No. 5833 (Ont. Ct J.) and R. v. Argent, 2016 ONCA 129. I have kept these in mind as I approach this application.

[17] As a starting point, it is also useful to consider the entrapment doctrine in light of Parliament's purpose of the offence that is being considered. In the context of internet and/or child luring offences, the comments of the Ontario Court of Appeal in R. v. Alicandro, 2009 ONCA 133, [2009] O.J. No. 571 at paras. 36-38 are apt. The court observed that s.172.1 and s.172.2 were designed to stop predatory adults who "generally for a sexual purpose, troll the internet for vulnerable children and adolescents".

D. Analysis

[18] I begin the analysis with consideration of the first branch of the test. As observed by Laskin J.A in R. v. Imoro, 2010 ONCA 122, [2010] O.J. No. 586 (CA) at para. 13, to make out entrapment on the first scenario requires two findings: first, a finding that the police provided an opportunity to commit an offence and second, a finding that the police did so without reasonable suspicion. I will explain why I have resolved both findings in favor of the Crown's position.

(i) Did DC Lockwood have a reasonable suspicion the applicant was engaged in or had engaged in criminal activity when the advertisement was posted?

[19] Counsel agree that DC Lockwood did not have reasonable suspicion when the applicant posted the Craigslist advertisement. I propose to examine each investigative step to see if reasonable suspicion developed and if so, how.

[20] In December 2016, the applicant posted the following advertisement on the casual encounters section of Craigslist:

60 year old male seeking younger lover – m4w (Oshawa). Am 60 with a preference for younger women but as long as you're attractive and can host, age does not matter. The possibility of a relationship is good. Must host. Looking for fun or serious relationship. Send pictures with your reply. Partial to Asian and Ebony but all welcome. This is a serious request and I am not looking for games. Full-time relationship welcome. Love a lady who enjoys having her body explored but also has brains. No drugs. No verification requests. Also looking at exploring having a child. Single mom with children welcome. Spend New Years together?

[21] DC Lockwood testified that there is nothing inherently illegal about the advertisement. I agree.

(ii) Did DC Lockwood have reasonable suspicion when he first responded to the advertisement?

[22] On January 3, 2017, DC Lockwood responded to the advertisement posing as Sara Kristoff. He wrote:

Hey hun.

I saw ur ad looking for a younger lover and maybe a single mom. I have a 3 year old but Im wonderin why ur ok with that? Are you into some darker desires?

Hit me up with email … I don't know how to send a pic on here but if you have kik or something I can do that.

He testified that based on his training and experience, the advertisement had certain flags given the reference to 'single mom with children welcome'. Moreover, it was unusual that a person was seeking a long term relationship but had posted an advertisement in the casual encounters section which according to his training and experience was known to be a hub for online sexual predators. I accepted this evidence.

[23] Mr. Newell argues that the comment "are you into some darker desires" was an appropriate investigative step and did not create an opportunity to commit a criminal offence. The argument follows that he didn't need reasonable suspicion right at the outset but instead, it developed later on. Ms. Guido's position is that DC Lockwood didn't have reasonable suspicion and it never developed.

[24] I agree with the Crown's position. At the time DC Lockwood responded to the applicant, the question "are you into some darker desires" was an open-ended question framed as an investigative technique. While he didn't have credibly based probability that a criminal offence was being committed, the law permits some leeway in investigating whether the applicant was an online sexual predator or just somebody seeking a long term relationship. I do not find that this comment was offensive or illegal because it was targeted at clarifying the advertisement – which of course was created by the applicant not the police. I accepted DC Lockwood's evidence on this point that he was trying to figure out the basis of the advertisement which was both subjectively and objectively confusing based on his experience.

(iii) Did DC Lockwood create an opportunity for the applicant to commit internet luring when he told the applicant that she into incest?

[25] Ms. Guido submits that DC Lockwood went too far when he injected the topic of incest into the online conversation and probably created an opportunity to commit a criminal offence. Mr. Newell disagrees arguing that it was an extension of his earlier investigative step which was necessary in the overall context of his investigation.

[26] I agree with the Crown's position for the following reasons.

[27] First, the lead up to the incest comment is important because DC Lockwood was canvassing if the applicant was into "some darker desires" which the applicant didn't shut down. Instead, he probed the issue, even if he didn't offer any details. Importantly, DC Lockwood attempted to withdraw from the conversation by writing that he was looking for "something a little more taboo" and "have a good day". This was his means of determining if the applicant was truly into something nefarious or something less. In my view, this was an appropriate investigative step. It was still open ended and non-coercive. DC Lockwood never put words in the applicant's mouth and did not encourage or coerce him to act in a specific way. The record simply doesn't bear this out.

[28] Second, it was the applicant who continued by asking "what did you have in mind?" DC Lockwood responded with the topic of incest which is part of his investigative mandate to seek out online child predators. This was also an appropriate investigative step because as he testified, discussing incest on the internet is not illegal. He added that it was his means to assess if the applicant was disgusted by the topic or interested which may, although not necessarily, be problematic. The applicant didn't desist which he took to mean he was not disgusted and asked "How old is your daughter?" This was the next step in forming reasonable suspicion because he even asked "why" with the applicant eventually stating: "I understand what but with whom? You roleplaying as a little girl? Am good with that. Having sex in front of your child? Okay too." In my view, this was getting very close to reasonable suspicion and it all arose through the applicant's words which were not coerced.

[29] In my reasons for conviction, I rejected the evidence of the applicant that he believed to be engaging in role play and fantasy because there was no credible basis to support this position. In particular, any semblance of role play vanished when DC Lockwood responded on the same date: "no I don't do roleplay … tried it and it seemed silly". This was clear and should have left no misconception in the mind of the applicant that perhaps Sara Kristoff was into roleplaying incestuous behavior.

[30] Third, reasonable suspicion crystalized the following day on January 4 2017 when DC Lockwood asked more open ended questions to determine if the applicant was simply proceeding on the basis of his misconceived idea of role play/fantasy or was in fact serious. He asked "Well how into this r u? Ru into me or are you into the taboo stuff?" This was another opportunity to gauge the applicant's intent. The applicant responded "Okay with taboo but you too". When asked "how far will u go", the applicant responded "All the way". If there was ever any confusion in the mind of either DC Lockwood or the applicant, it was clear on January 4, 2017 when he freely and without coercion made it clear that he was into "taboo" – which of course was the earlier reference to incestuous behavior. It's hard to see how the police could be criticized for taking these additional steps. DC Lockwood was cautious in confirming the applicant's intent before he proceeded.

[31] Fourth, there is legal authority for the Crown's position that reasonable suspicion can evolve with investigative steps. In Ghotra, Justice Durno held at para. 55:

55 Fifth, it is not essential that the reasonable suspicion existed at the start of the communication. The officer can start the conversation and take legitimate investigative steps before obtaining reasonable suspicion: R. v. Benedatti 1997 ABCA 169, at para. 11 ; R. v. Williams, 2010 ONSC 1698, at para. 45-7 . While Argent had sexualized the communication with the photograph of his penis, the officer was entitled to rely on portions of the communication to support the officer's suspicion that criminal activity was underway including that he was told she was 14 and had just graduated from grade 8.

[32] Fifth, DC Lockwood was entitled to rely on his training and experience to determine if the applicant was truly an online sexual predator or something less. The introduction of incestuous behavior was a proper investigative step because it did not coerce that the applicant to act in a certain way. Rather, it was simply a means for the communication to continue in which the applicant took the lead in directing the conversation to an illegal sexualized act. In R. v. Bayat, [2011] O.J. No. 5680 (CA), the Court of Appeal said opening up a dialogue was not an opportunity to commit an offence, rather it was a step in the investigation. This case is no different except DC Lockwood had to take more than one step before he developed reasonable suspicion. This approach remains lawful as long as the investigation doesn't cross the Rubicon and offer the applicant to commit an offence. DC Lockwood did not cross the Rubicon in this case.

[33] I do not find that his additional steps probably created an opportunity for the applicant to "do taboo stuff" because DC Lockwood asked open-ended questions as part of a proper investigation. He did not put words in the applicant's mouth or even ideas in his head. The applicant had previously agreed that he was "okay with having sex in front of your child", which DC Lockwood could rely on based on his training and experience to know that something was amiss.

[34] This conclusion would be enough to dispose the application. However, counsel made alternative submissions so I will go on to consider the second prong of the test, namely whether there was a bona fide inquiry and even if so, was there an inducement to commit the offence.

(iv) Was DC Lockwood involved in a bona fide inquiry or random virtue testing when the online conversation started?

[35] Ms. Guido submits that DC Lockwood was acting randomly by responding to the advertisement. Mr. Newell responds that randomness is permitted by the law so long as there is a bona fide inquiry. In this case, DC Lockwood was monitoring a specific place used by sexual predators.

[36] I agree with the Crown's position which is also supported by the law.

[37] In Ghotra, Justice Durno held that the internet chat room was a place where internet luring is likely occurring. In doing so, he harkened back to Parliament's objective in creating s.172 and remarked that some leeway is necessary to permit law enforcement to investigate this type of activity. I agree with this observation.

[38] Moreover, the Supreme Court in Barnes at paras. 16-19 offered some guidance on how to conduct this inquiry. Some factors that are relevant include whether the officers' conduct was motivated by the genuine purpose of investigating and repressing criminal activity and whether the police directed their investigation to a suitable area where it is reasonably suspected that criminal activity is taking place.

[39] As stated above, a "particular area" has been interpreted to extend to places on the internet. In R. v. Chiang, [2012] B.C.J. No. 350 (CA), the court held that the erotic sections of the Craigslist were analogous to the geographic area referred to in Barnes. Similarly, in Argent, the trial judge held that the officer acted in the course of a bona fide inquiry as Parliament had deemed the internet to be equivalent of a bad neighborhood by enacting the luring provisions.

[40] I accept the evidence of DC Lockwood who is a police officer with the Internet Child Exploitation Unit. He was clear that he was monitoring a "specific place" using his training and experience to target specific people. In this case, he was drawn to the peculiarity of the applicant's choice of 'single mother with children welcome' and its location in the online classified portal, namely, the casual encounters section. He wasn't targeting the entire internet or even Craigslist as a whole. He was targeting the casual encounters section which he said is a hub for online sexual activity. Justice Kenkel came to the same conclusion in the context of online juvenile prostitution in Haniffa at para. 18. Some randomness will be expected as long as the inquiry is bona fide and not just a pure test of one's virtue. In this case, DC Lockwood reasonably suspected that online sexual predators manifest in the casual encounters section of Craigslist. I accept this evidence. The investigation was both focused and bona fide.

(v) Did DC Lockwood go beyond the bona fide inquiry and induce the applicant to commit the offence?

[41] Ms. Guido argues that even if the investigation was bona fide, DC Lockwood took advantage of the applicant who was a lonely man seeking a long-term relationship. She argued that DC Lockwood posing as Sara Kristoff did not respond as a middle-aged woman but instead sent the applicant a photograph of an attractive young woman so as to leave him with the impression that he had "hit the jackpot".

[42] Mr. Newell argues there is simply no evidentiary basis to ground this finding.

[43] I agree with the Crown's position.

[44] On this record, there is simply no evidence of pressure or inducement. In fact, the opposite is true. For starters, the applicant did not testify that he was induced or would not have responded if DC Lockwood engaged with him in a different way. His position was he was lonely and looking for a real long-term relationship. While this may be true, it doesn't mean that he wasn't also looking to engage in a sexual encounter with a minor when the opportunity presented itself. In support his position, the defence called his ex-spouse, Tammy Manshanden, who testified that she's known him for 23 years. At the time, he was living on her couch in the basement. She described him in unflattering terms stating he wasn't the "brightest crayon in the box". He always wanted to be a father and over time got more depressed. Moreover, the applicant frequented the internet for relationships and was very vulnerable.

[45] I accept this evidence but there's nothing in the exchange between the parties where this vulnerability manifests or ought to have been known to DC Lockwood. He never communicated to the police he was very depressed and vulnerable and I'm not prepared to find that the online exchange bears it out. As I held above, the applicant was a willing participant and most of the times, drove the exchange with graphic details.

[46] I have carefully examined the cases filed by the defence on this issue including examining the factors in Mack at p. 129. These factors simply don't apply in this case. For example, DC Lockwood didn't know and had no reason to believe he was vulnerable, the applicant was persistent in his efforts – not the police, there was no deceit, fraud or trickery, and there was no exploitation involved. Just because DC Lockwood chose to send him a picture of an exceedingly beautiful woman as opposed to something less, doesn't amount to unlawful deceit or exploitation. DC Lockwood could not have expected to know how the applicant would respond to the photo. In any event, I found that the applicant had agreed to the impugned conduct even before the photo was shared. This is not a case like R. v. El-Sheikh-Ali, [1993] OJ No. 2413 (Ont. Ct. J.) where the accused was induced into a romantic relationship under false pretences as a means to sell drugs to the undercover officer. Unlike this case, the police conceded their investigation was purely random and the court accepted the evidence of the accused that he would not have committed the offence but for the inducement. That evidence simply doesn't exist here.

[47] DC Lockwood did nothing to induce or pressure the applicant. He always asked open-ended questions as part of his investigation and gave the applicant ample opportunity as a way out: Haniffa, at para. 24. The applicant never left the conversation and persisted. There was no basis to believe that Sara Kristoff was role-playing and indeed, as my reasons for conviction bear out, the applicant took steps consistent with his belief that Deanna was real when he brought a doll for her when the parties had arranged to meet in person.

[48] I have considered the defence evidence including that of Ms. Manshanden who said he was very vulnerable. I do not doubt this but the vulnerability never manifested through the online exchange which was graphic and persisted over a number of days. Any evidence of vulnerability was not obvious either subjectively or objectively. In most of the graphic communication, the applicant took the lead about sexual activity. This was not just a quick or short online exchange in which the police took advantage of an overzealous participant. On the contrary, the applicant had several opportunities to back out and chose not to. As I held, the applicant was hoping and preparing for a sexual encounter with both Sara and her daughter Deanna and was devastated when he found out neither were real. There is simply no evidence of pressure or inducement. In any event, this not a clear case for a stay of proceedings.

E. Conclusion

[49] For the foregoing reasons, the application to stay the proceedings is dismissed.

Released: April 3, 2018

The Honourable Justice F. Javed