Court File and Parties

Court File No.: 497/13 Date: 2016-09-13 Superior Court of Justice – Ontario

Between: Her Majesty The Queen, Respondent And: Akash Ghotra, Applicant

Before: Durno, J.

Counsel: Gregory Hendry, for the Respondent Alan D. Gold and Melanie Webb, for the Applicant

Heard: July 22, 2016

Entrapment Ruling

[1] On November 17, 2012, Akash Ghotra entered an internet chatroom and started a conversation with a person who represented herself to be a 14 year old girl named Mia. In fact, the person was Constable Hilary Hutchinson of the Peel Regional Police acting in an undercover capacity. As a result of three conversations they agreed to meet at her apartment building. When he arrived, he was arrested for internet luring. After a trial, I found Mr. Ghotra guilty.

[2] He applies to stay the proceedings on the basis that he was entrapped when the officer provided an opportunity for him to commit the offence by telling him she was 14 years old. The Crown submits that he was not entrapped.

The Evidence

[3] Constable Hutchinson had been a member of the Internet Child Exploitation Unit where her primary responsibilities were to go onto the internet in search of adults who were exploiting children. To do so, she would engage in internet chats posing as a child. She had five prosecutions based on chats before this trial.

[4] Constable Hutchinson used ‘mia_aqt98’ as her username to reflect that she was a female, ‘aqt’ meaning a cutie, and ‘98’ reflecting that she was born in 1998, making her 14-years old. She admitted in cross-examination that ‘aqt’ could have been the first three letters of her last name, ‘98’ could have been the year she graduated from high school or it could have referred to her house number or anything. The officer did not know ‘respect_power’ before the first conversation, nor did she know anything about him before the chats started.

[5] The applicant, using the username ‘respect_power’, started the conversation with “hi” and “asl?” which meant age, sex and location? Mia said, “14, f and Brampton.” Shortly after, she reiterated that she was 14 years old.

The Positions of Counsel

The Applicant’s Position

[6] The applicant submits that entrapment is made out if a police officer provides an opportunity to commit a crime without a pre-existing reasonable suspicion that the person is already engaged in criminal activity or the officer is in the course of a bona fide inquiry. Here, Constable Hutchinson, posing as Mia, provided an opportunity to Mr. Ghotra to commit an offence yet had no pre-existing reasonable suspicion and was not acting in the course of a bona fide inquiry.

[7] The applicant submits that an ‘opportunity’ is “to create the chance to do something.” Opportunity is dependent on the crime that is alleged. When the police have done all they need to do then they create the opportunity. If more was required, there would be no ‘opportunity.’ Here, by telling the applicant that she was 14, Mia did all that she needed to do. She had nothing more to do to create the opportunity. All that was left was for the applicant to take advantage of the opportunity which is what he did. Were the officer to make any suggestive sexual remarks, the officer would have gone too far and invited, if not induced the offence.

[8] The applicant contends this case is the essence of random virtue testing with the officer randomly laying down bait of which the applicant took advantage. Roving chat rooms is random virtue testing. It is not police investigating in a bona fide inquiry. For a bona fide inquiry, there must be a target person or well-defined space or location. It cannot be a nebulous or ill-defined location such as an internet chat room. At its highest, there was a theoretical possibility of internet luring on the chat room. That was insufficient to create a bone fide inquiry. There was no evidence how frequently individuals engaged in internet luring aside from police investigations.

[9] By analogy, where officers conducted “cold calls” until they reached someone who would agree to sell them drugs, the officers were found to have entrapped the accused: R. v. Swan, 2009 BCCA 142.

[10] Here, Parliament created an offence which is akin to a search and seizure power which results in individuals giving into temptation. Internet luring in this context is a totally police-created crime.

[11] Mr. Gold submits that the words used are important. Here, all the applicant asked was Mia’s age, sex and location. He did not say, “I hope you are under 16” which would have created a reasonable suspicion.

[12] While the applicant initiated the conversation, it was Mia who immediately provided the age. The finding of guilt flowed from the applicant taking up the offered opportunity to communicate with responses prohibited by s. 172.1(1)(b) of the Criminal Code.

[13] This is not a case like R. v. Gerlach, [2014] O.J. No. 5833 (C.J.) where the accused created a Craigslist advertisement for a sexual encounter or R. v. Argent, 2016 ONCA 129 where the accused created a Craigslist add to which he attached photos of his genitals. In both cases, their actions provided objectively verifiable reasons to suspect they were engaged in child luring.

[14] Similarly, in R. v. Chiang, 2012 BCCA 85, the police created an advertisement of a sexual nature. Chiang responded and persisted with efforts to obtain sexual services. That course of conduct provided the police with reasonable suspicion.

The Crown’s Position

[15] While Mr. Hendry agrees that the officer had no reasonable suspicion regarding ‘respect_power” at the outset of the conversation, he disagrees that Mia saying she was 14 created an opportunity for the applicant to commit the offence. If the applicant is correct, all police undercover operations regarding internet luring involve entrapment. In any event, the Crown submits the officer was pursuing a bona fide inquiry in an area where offences were being committed. Accordingly, no reasonable suspicion regarding ‘respect_power’ was required.

[16] The Crown contends that simply giving her age as 14 does not create an opportunity. Mr. Hendry asks who would be tempted or manipulated into committing internet luring by being told the person was underage. Further, he submits that reasonable suspicion can be developed during the investigation, relying on Bayat, at para. 19. Here, that reasonable suspicion, a lower standard than reasonable and probable grounds (R. v. Chehil, 2013 SCC 49), emerged quickly as the applicant asked Mia her age and sex and within minutes turned the conversation to sexual matters, asking her if she masturbated. The Crown argues that it is only necessary to look at the chat to where a reasonable suspicion would be made out because any opportunity to commit an offence after a reasonable suspicion was created would not be entrapment. The Crown contends that that point occurred at 1:29:33 p.m. on November 27, 2012 when ‘respect_power’ asked Mia if she masturbated.

[17] The Crown submits that the police must be given latitude to detect crimes where the criminal conduct may go unobserved such as occurs on the internet. Parliament envisaged police officers acting as children when drafting the internet luring legislation as the prohibition includes communications where the accused believes the person is underage and the presumption that if the accused is told the other person is underage, he or she is presumed to have believed the person was underage in the absence of evidence to the contrary: s. 172.1(1)(a) and (3) of the Criminal Code.

[18] Finally, Mr. Hendry submits that the police are permitted to present an opportunity to commit an offence when it is directed at a person in an area where it is reasonably suspected that criminal activity is occurring, relying on R. v. Barnes, [1991] S.C.J. No. 17, at para. 24. While in Barnes the Supreme Court of Canada was referring to a geographical area, internet domains have been found to be analogous to such areas for the purposes of examining an entrapment argument: Chiang, at para. 20.

The Law of Entrapment

[19] Entrapment occurs in the following situations:

a. the police provide an opportunity to persons to commit an offence without having a reasonable suspicion or the offer is not made in the course of a bona fide inquiry, or

b. having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of the offence: Mack, at para. 115 and 126: R. v. Mack, [1988] 2 S.C.R. 903

[20] Entrapment is an aspect of the broader abuse of process doctrine. It reflects judicial disapproval of unacceptable police or prosecutorial conduct in investing crimes: R. v. Clothier (2011), 2011 ONCA 27, 266 C.C.C. (3d) 19 (Ont.C.A.)

[21] The onus is on the accused to establish on a balance of probabilities that he or she was entrapped: Mack, at para. 7. It is only in the clearest of cases that entrapment should be found: R. v. Ahluwalia, [2000] O.J. No. 4554 (C.A.)

[22] In Mack, Lamer J. referred to the ubiquitous nature of criminal activity in our society: at para. 15 The police were to be given “considerable latitude” in their efforts to enforce the criminal law’s standards of behaviour: at para. 17. It was important to always recall the context in which entrapment usually occurs. Understanding the reality of criminal activity was imperative to the workable entrapment doctrine that accommodates the interests of all in society. More leeway may be granted to the police methods directed at uncovering criminal conduct that is simply not capable of being detected through traditional law enforcement techniques: at para. 125.

[23] However, there was a line over which the police could not go. While not easy to draw, there was a crucial distinction between the police or their agents acting on reasonable suspicion or in the course of a bona fide inquiry providing the person with an opportunity to commit a crime and the state actually creating a crime for the purpose of prosecuting: at para. 18. The former is appropriate police conduct, the latter is the conduct the citizenry cannot tolerate: at para. 15.

[24] Lamer J. cited with approval the following classic example of entrapment from Sorrels v. United States, 287 U.S. 435 (1932), at 454, per Roberts J:

The conception of planning of an offence by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.

[25] It is the belief that the administration of justice must be kept free from disrepute that compels recognition of entrapment: at para. 74. The disrepute may arise from judicial condonation of unacceptable conduct by the police and prosecutors: at para. 74. What offends the court’s sense of justice is the spectacle of an accused being convicted of an offence which is the work of the state: at para. 78.

[26] This application involves only the first criteria, Mr. Ghotra does not allege that he was induced into committing the offence.

[27] Lamer J. found that the first form of entrapment would rarely occur because the police were “generally resorting to the type of investigatory technique of providing an opportunity only in relation to targeted people or locations clearly, and therefore reasonably, suspected of being involved in or associated with criminal activity, or again were already engaged in a bona fide investigation justifying the provision of the opportunity:” at para. 115.

Reasonable Suspicion

[28] With respect to reasonable suspicion, the Supreme Court of Canada addressed the issue in the sniffer-dog case, R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 as follows:

27 Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

Random Virtue Testing

[29] What is not permitted is random virtue testing. The absence of reasonable suspicion or a bona fide inquiry raises the risk that police will attract people who would not otherwise have any involvement in crime. Further, it was not a proper use of the police power to simply go out and test the virtue of people on a random basis: Mack, at para.129.

[30] Random virtue testing arises only when the police present a person with the opportunity to commit an offence without having a reasonable suspicion the person is already engaged in the criminal activity or the physical location with which the person is associated is a place where the particular criminal activity is likely occurring: R. v. Barnes, [1991] 1 S.C.R. 449, at par. 24. Being associated with the area did not require more than being present in the area. In Barnes, the Crown led evidence to support a finding that the Granville Mall in Vancouver had a high incidence of drug trafficking: at para. 18.

[31] In R. v. Le, 2016 BCCA 155, the British Columbia Court of Appeal addressed the issue in the context of an informer’s tip that a male with a heavy Asian accent was selling drugs and drove a white Honda. The officer called the number provided, a male with a heavy Asian accent answered and agreed to meet the officer to sell drugs. The seller arrived at the location in a white Honda.

[32] With respect to random virtue testing, the Court held:

94 In Mack, the Court stated the mischief of random virtue-testing is "the serious unnecessary risk of attracting innocent and otherwise law-abiding individuals into the commission of a criminal offence" (at 957). "Ultimately ... there are inherent limits on the power of the state to manipulate people and events for the purpose of ... obtaining convictions" (emphasis added) (at 941).

95 Objectively speaking, innocent and otherwise law-abiding individuals would not be "manipulated" or tempted to enter the dangerous and illicit drug trade if asked by a stranger over the phone to sell him drugs. It defies common sense to suggest that asking whether an individual is willing to sell specific types, quantities, or values of illicit drugs runs the "serious unnecessary risk" that an otherwise innocent person would then go out, procure the drugs, meet with and sell them to a stranger.

A bona fide Inquiry

[33] In R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, the Court recognized the type of undercover operation that was involved in this case as follows at para. 24-5:

24. Section 172.1 was adopted by Parliament to identify and apprehend predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents.

25 In structuring the provision as it did, Parliament recognized that the anonymity of an assumed online profile acts as both a shield for the predator and a sword for the police. As a shield, because it permits predators to mask their true identities as they pursue their nefarious intentions; as a sword (or, perhaps more accurately, as a barbed weapon of law enforcement), because it permits investigators, posing as children, to cast their lines in Internet chat rooms, where lurking predators can be expected to take the bait – and the appellant did here. [emphasis added]

[34] In Clothier, Laskin J.A. held that there was no entrapment “where the police undertake a bona fide investigation targeting an area where criminal activity is reasonably suspected. The police are entitled to provide any person in the area with the opportunity to commit the offence. If criminal activity is reasonably suspected, the investigation is bona fide:” at para. 18. Under the first branch of entrapment, the police can only act on reasonable suspicion, either of an individual’s or an area’s criminal activity: at para. 19.

Entrapment Caselaw

[35] In R. v. Imoro (2010), 2010 ONCA 122, 251 C.C.C. (3d) 131 (Ont.C.A.), leave to appeal refused, 2010 SCC 50, [2010] 3 S.C.R. 62, the police received an anonymous tip that a man was selling drugs on the twelfth floor of an apartment building. The undercover officer went to the twelfth floor with another person in the elevator with him. When they got off, Imoro approached them and said to come with him. The officer asked, “Can you hook me up?” Imoro said, “Yeah man.” Once inside Imoro’s apartment, he sold marijuana to the other man and asked what the officer wanted. He said “hard” meaning crack cocaine but Imoro said he only had “soft,” powder cocaine. He sold the officer $40 worth of powder cocaine.

[36] The trial judge found Imoro was entrapped. The Court of Appeal disagreed finding that when the officer asked if he could hook him up he had no reasonable suspicion. However, reasonable suspicion existed when the officer saw Imoro sell drugs to the other man. It is implicit in the judgment that asking if he could hook him up did not entrap Imoro and that a reasonable suspicion can be acquired after the initial contact.

[37] In Bayat, a school vice-principal told police that a 16-year-old student was involved in a sexual relationship with a 22-year-old man she met on the internet. The police investigation confirmed the sexual relationship and that the man had videotaped the sexual intercourse and shown it to others. Other than providing that information, the young woman and her friends would not cooperate with the investigation.

[38] The police obtained Bayat’s Hotmail address for MSN Messenger and the officer, posing as a 13-year-old girl, send him a message asking if she could be his friend. They chatted and Bayat, after initially saying she was too young, turned the conversation to sexual activities and arranged to meet her. The trial judge found Bayat guilty but stayed the proceedings finding entrapment as the officer never had a reasonable suspicion he was engaged in internet luring.

[39] The Court of Appeal disagreed, finding the officer had never provided Bayat with an opportunity to commit internet luring. Opening up a dialogue with Bayat did not constitute an offer of an opportunity to commit an offence. It was no more than a step in an investigation, equivalent to a knock on the door. Offering to be added as a friend could not have been construed as an opportunity to commit the offence. Bayat took the initiative in opening the communications with the undercover officer. He asked to see her picture, was shown a photograph of an underage person and took the lead in engaging in ever more explicit discussions believing the officer was a child.

[40] While there were differences between officers making themselves available in chat rooms who then enter a dialogue with one person and in Bayat the officer making himself available to chat with one person, in both scenarios it is the accused who took the lead in directing the conversation, the element of offering an opportunity to commit the offence of internet luring was not made out. There was a difference between providing an opportunity to chat and providing an opportunity to commit internet luring: at para. 21.

[41] In R. v. Argent, 2014 ONSC 4270, Parayeski J. found that an officer who responded to two advertisements on Craigslist for females over the age of 18 with whom he would smoke marijuana and have sex had a reasonable suspicion when he provided Argent with the opportunity to commit the offence. The ads included photos of Argent’s genitals. In the undercover officer’s first contact with Argent, “she” said that she was 14 and that she was not sure if the marijuana bud he was holding in the picture was larger than his bud. By doing so, Argent argued the officer had initiated the sexual connotation and provided an opportunity.

[42] The officer said that based on his experience people who advertise for partners as young as 18 are actually looking for younger partners. His Honour also found that the officer was in the course of a bona fide inquiry as Parliament had deemed the internet to be the equivalent of a bad neighborhood by enacting the internet luring provisions: at para. 18.

[43] On appeal to the Court of Appeal, 2016 ONCA 129, the Court held that the officer could rely on his training about saying 18 year olds were sought was a flag for potential child abusers: at para. 12. The Court continued at para. 13:

We do not agree that the officer manufactured the criminal activity by sexualizing the first communication. The photos had already done that. The communications from the officer made it clear from the outset that Carlee was 14, had just graduated from grade 8, was inexperienced sexually, and was under the watch of her mother. The questions posed by the officer were open-ended. It was the appellant who pursued the discussion of sexual activity. These facts support the officer's suspicion that criminal activity was underway.

[44] In R. v. Chiang (2012), 2012 BCCA 85, 286 C.C.C. (3d) 564, (B.C.C.A.) the Court found the erotic services section of Craigslist analogous to the geographic area referenced in Barnes.

[45] In Le, the Court held that there was no entrapment when the officer asked if he could hook him up with an eight ball. By that time the police had reasonable a suspicion based on the tip, the gender, ethnicity, territory of operation and aspects of the tip were confirmed when the phone was answered. In the alternative, even without reasonable suspicion, the minimal conversation could only amount to part of the investigation of the tip and not an opportunity to commit a crime.

The Context of Entrapment in Internet Luring Cases

[46] Since the issue of entrapment must be considered in context, the Court of Appeal for Ontario’s comments on the purpose of s. 172.1 in R. v. Alicandro (2009), 2009 ONCA 133, 95 O.R. (3d) 173 are informative:

36 The language of s. 172.1 leaves no doubt that it was enacted to protect children against the very specific danger posed by certain kinds of communications via computer systems. 6 The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults. One author has described the danger in these terms:

For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a vast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet's one-too-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as to the communicator's true identity. Too often, these nets ensnare, as they're designed to, the most vulnerable members of our community - children and youth.

Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are the front-runners in the use of new technologies and in the exploration of social life within virtual settings. 7

38 The appellant's interpretation of s. 172.1(1)(c) would significantly undermine the object of that statutory provision in a second way. If the appellant's interpretation is accepted, communications between an accused and a police officer who an accused believes to be a young person could not result in a conviction under s. 172.1(1)(c). A review of the case law demonstrates that police officers posing as young persons is almost the exclusive manner in which this provision is enforced. This is hardly surprising. Children cannot be expected to police the Internet. The state is charged with the responsibility of protecting its children. That responsibility requires not only that the appropriate laws be passed, but that those laws be enforced. The appellant's interpretation would render the section close to a dead letter.

[47] Finally, with respect to the applicant’s argument that trolling the internet is entrapment and acknowledging that Levigne is not an entrapment case, the opening sentence bears repeating: “This appeal concerns an internet lurer who himself took the bait.”

Analysis

[48] The application requires the following question be addressed:

1. Did the officer have a reasonable suspicion the applicant was engaged in or had engaged in criminal activity when the chat started?
2. Did the officer have a reasonable suspicion when she gave her age as 14?
3. Did the officer create an opportunity for the applicant to commit internet luring when she gave him her age as 14 years old?
4. Was the officer engaged in a bona fide inquiry or random virtue testing when the chat started?

Did the officer have a reasonable suspicion that applicant was engaged in or had engaged in criminal activity when the chat started?

[49] Constable Hutchinson did not have the requisite suspicion in relation to ‘respect_power’ when the chat discussed.

Did the officer have a reasonable suspicion that applicant was engaged in or had engaged in criminal activity when she gave her age as 14 years old?

[50] Constable Hutchinson did not have the requisite suspicion in regards to ‘respect_power’ when she gave him her age as 14 years old. The opening line from the applicant was “age, sex, location” which would not provide the requisite suspicion.

Did the officer create an opportunity for the applicant to commit internet luring when she gave him her age as 14 years old?

[51] I am not persuaded the officer created an opportunity by giving her age as 14 years old in these circumstances. First, the applicant selected Mia from those who were in the public chat room. Whether the use of Mia_aqt98 influenced his selection is unknown as he was never asked why he chose Mia. It would be apparent the he was asking a female to chat.

[52] Second, it was the applicant who asked Mia’s age. He started the conversation regarding age. It was not like an undercover officer calling and asking for drugs.

[53] Third, it was the applicant who turned the conversation to sexual issues asking if Mia had ever been with a guy, made out, kissed, sex or cuddled and if she masturbated.

[54] Fourth, in Bayat, the undercover officer targeted Bayat. He sent a message to Bayat asking to be accepted as his friend. Where the trial judge erred was in failing to consider whether simply opening up the dialogue constituted an opportunity to commit an offence. He failed to consider whether that initial contact was an offer of an opportunity to commit an offence. The Court of Appeal held that it was not. The initial contact was a step in the investigation. While Bayat did not involve a chat room, Rosenberg J.A. found the difference irrelevant. Whether the undercover officer went into a public chat room or targeted an individual, in both cases, “if it is the accused who take the lead in directing the conversation, the element of offering to commit the offence of child luring is not made out:” at para. 21. Here, it was the applicant who took the lead in directing the conversation to age and to sexual matters.

[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.

[56] I am not persuaded the officer probably created an opportunity to commit internet luring by giving her age as 14 years old. That conclusion would be sufficient to dispose of the application. However, if I am in error with regards to the opportunity, I will address the final question.

Was the officer involved in a bona fide inquiry or random virtue testing when the chat started?

[57] I find that criminal activity was reasonably suspected in the chat room. As Barnes holds, where officers have a reasonable suspicion that the physical location with which the person is associated is a place where the particular criminal activity is likely occurring, they are not engaged in random virtue testing: at para. 24. 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 permitted within the scope of a bona fide inquiry: at para. 23.

[58] The internet chat room was a place where internet luring was likely occurring. I reach that conclusion for the following reasons. First, in Levigne, the Supreme Court found that s. 172.1 was enacted to identify and apprehend predatory adults, who generally for illicit sexual purposes, troll the internet to attract and entice vulnerable children and adolescents: at para. 24. By structuring the legislation as it did, Parliament recognized the anonymity of the assumed online profile acts as a shield protecting the predator’s true identity “as they pursue their nefarious intentions” and a sword or barbed weapon of law enforcement because it permits officers, posing as children, to cast their liens in internet chat rooms, “where lurking predators can be expected to take the bait:” at para. 25. [emphasis added] The Supreme Court of Canada has provided the basis upon which the officer was engaged in a bona fide inquiry.

[59] Second, as noted earlier, the police must be permitted leeway in their investigations depending on the type of offence being investigated. The nature of the internet makes that leeway essential.

Conclusion

[60] The applicant has not persuaded me that this is one of the clearest cases where the charge should be stayed based on entrapment. What occurred either did not involve providing an opportunity or occurred in the course of a bona fide inquiry. I am not persuaded the offence was the work of the state.

[61] The application is dismissed.

DURNO, J. Released: September 13, 2016