COURT FILE NO.: CR-19-1936 DATE: 2021 03 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Vickramjeet Aujla for the Crown Respondent
- and –
RAVINDER KAINTH Deepak Paradkar for the Applicant
HEARD: October 28, 2020 by Zoom Conference
ENTRAPMENT RULING
D.E HARRIS J.
[1] Ravinder Kainth is guilty of the criminal offence of child luring contrary to Section 172.1(2)(b) of the Criminal Code R.S.C. 1985, Chap. 46. He admitted his guilt in this hearing. However, he argues that the proceedings should be stayed for abuse of process. He was entrapped by the police.
[2] I agree with the Applicant. This is a clear-cut case of the police overstepping the line and engaging in random virtue testing contrary to recent controlling authority from the Supreme Court. The application must be allowed and the prosecution stayed.
BACKGROUND
[3] On November 13, 2018, Cst. Losier from the Internet Child Exploitation unit of the Peel Regional Police conducted an online undercover investigation. Cst. Losier has extensive training in combatting internet child exploitation. The website on which she was conducting her investigation was www.locanto.com (“Locanto”). This is an online classified advertisement website which includes a section for advertising casual sexual encounters. The officer was posing as a 14-year-old girl with the username “kitykaty14.”
[4] Peel Regional Police had not received any complaints in relation to Locanto. Cst. Losier had heard through investigators (she cannot recall who she heard from or when) that Locanto was a site where there were postings for younger sexual partners. Craigslist was formerly the preferred place for this activity but it had been shut down by the police.
[5] The Applicant Ravinder Kainth posted an advertisement on Locanto with a username of “Indiandesi90” in the casual encounter section of the website on November 6, 2018. His advertisement, “Ad ID: 3099373811”, had the subject heading “Male looking for a hot girl – 32.” In it the Applicant wrote,
Hi..im looking a [sic] hot girl in brampton area for oral sex ..im available day and night. I can’t host ….. reply.
[6] Cst. Losier replied,
hi I just saw ur ad im 14.. how r u?
[7] The accused then asked whether she was in Brampton, stated that he was in Brampton and provided his phone number. In the ensuing conversation, the Applicant proved very enthusiastic about pursuing oral sex with a 14-year-old girl. The conversation continued for some time between the two.
[8] Eventually, they arranged to meet for sexual activity. The Applicant was arrested when he arrived at the meeting place. He was charged with child luring. The indictment charges three counts of luring under Section 171.1(2)(b) in three different but closely related ways.
[9] The Applicant was the first person arrested as a result of a Locanto investigation. Cst. Losier, however, had responded to ads and chatted with other individuals prior to the Applicant’s arrest.
THE LAW
[10] Entrapment is a branch of the doctrine of abuse of process. The prohibition against entrapment emanates from the necessity of protecting the system of criminal justice from falling into disrepute. Justice Frankfurter said in Sherman v. United States, 356 U.S. 369 (1958) and it was adopted by our Supreme Court in the leading entrapment case of R. v. Mack, [1988] 2 S.C.R. 903 at para. 51,
Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.
[11] The concept underlying entrapment is that the court ought not to condone law enforcement authorities manufacturing, encouraging or baiting individuals to commit criminal offences. Most recently, the Supreme Court held in R. v. Ahmad, 2020 SCC 11,
1 As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. At the same time, police require various investigative techniques to enforce the criminal law. While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.
2 … [entrapment] threatens the rule of law, undermines society's sense of decency, justice and fair play, and amounts to an abuse of the legal process of such significance that, where it is shown to have occurred, a stay of proceedings is required.
[12] In the United Kingdom, one judge has said the reason that entrapment is improper is that “the policeman is preying on the weakness of human nature to create crime … ” R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897 (H.L.), at para. 58 per Lord Hoffmann.
[13] There are two modes of entrapment: 1. Providing an opportunity to commit an offence without the police having prior reasonable suspicion of criminal intent; and 2. Law enforcement going beyond providing an opportunity and inducing commission of an offence: Ahmad at para. 15.
[14] This case involves the first type of entrapment, sometimes referred to as random virtue testing: Mack at paras. 108-109. Ahmad is now the leading case. Unfortunately, Cst. Losier did not have the benefit of Ahmad at the time of her investigation. The Ahmad case was released more than a year and a half afterwards.
[15] The two appeals considered by the Supreme Court in Ahmad involved “dial-a-dope” operations in which drug traffickers connected with their customers. In both instances, the police received a bare tip that a particular phone number was being used for drug dealing. A police officer called the number and eventually requested drugs. In the Ahmad case, it was held that the officer sufficiently corroborated the bare tip during the conversation such that the officer’s eventual request for drugs was predicated on a reasonable suspicion. In the other appeal heard and decided at the same time, Williams, the Supreme Court held that the tip was not corroborated during the conversation. The police request for drugs, not backed up by prior reasonable suspicion, therefore constituted entrapment.
[16] The Supreme Court’s established a bright line test in Ahmad, centring around whether an opportunity to commit an offence had been offered by the police officer prior to forming grounds of reasonable suspicion. The Court explained the test this way:
63 The determination of whether a police action constitutes an opportunity to commit an offence is informed both by the definition of the offence and the context in which the action occurred. Like other aspects of the entrapment doctrine, it reflects the balance struck between the state's interest in investigating crime and the law's constraint against unwarranted intrusion into individuals' personal lives. In a conversation, an opportunity will be established when an affirmative response to the question posed by the officer could satisfy the material elements of an offence …
64 The inquiry, then, is properly directed to how close the police conduct is to the commission of an offence. To allow the police sufficient flexibility to investigate crime, an officer's action -- to constitute an offer of an opportunity to commit a crime -- must therefore be sufficiently proximate to conduct that would satisfy the elements of the offence. For example, in Bayat, Rosenberg J.A. concluded that beginning an online conversation with a target was not an opportunity to commit the offence of child luring. He likened the first contact to a "knock on a door" (para. 19). In his view, that initial contact was too remote from the commission of the offence to constitute the provision of an opportunity to commit an offence (see also R. v. Vezina (A.), 2014 CMAC 3, 461 N.R. 286, at paras. 5-6; Williams (2010), at paras. 45-47). In the particular context of drug trafficking, we would adopt the conclusion reached by Trotter J. at para. 27 of the Williams stay decision: an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering "yes." In a conversation, an opportunity will be established when an affirmative response to the question posed by the officer could satisfy the material elements of an offence.
(Emphasis Added)
[17] While this delineation of the line between what the police can legitimately do and what they cannot do was developed in the context of a “dial-a-dope” investigation, it is applicable to police internet sexual investigations as well: see e.g. R. v. Ghotra, 2020 ONCA 373, [2020] O.J. No. 2650 (Ont.C.A.).
[18] Applying the test from Ahmad to the case at hand is not difficult. The offence of child luring is defined in Section 172.1(1)(b) of the Criminal Code:
Luring a child
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of [a sexual act constituting a criminal offence] ...
[19] The elements of the offence are discussed in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551 (S.C.C.) where Justice Fish said for the Court:
25 [Section] 172.1(1)(c) creates an incipient or "inchoate" offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey.
36 … s. 172.1(1)(c) comprises three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence …
[20] I conclude that the police lacked reasonable suspicion that the Applicant intended to commit the child luring offence before engaging in internet dialogue with him. The police read the Applicant’s request on a part of the Locanto site which was devoted to arranging casual sexual encounters. There were sexual photographs on the website page upon which the Applicant wrote his query. The query itself was for oral sex. The Applicant was looking for a partner for consensual sexual activity but there is nothing criminal in that. The critical question is whether there was any prior indication that he was interested in sexual activity with a person under the age of 16 years old.
[21] The Crown argued that there was reasonable suspicion in the pertinent sense based on the Applicant’s use of the term “hot girl” in his posted inquiry. Cst. Losier evidence was that she had been trained on the use of language by prospective child sexual offenders. If the ad was looking for a “woman age 18 to 25 years old”, or older, she would not answer it. If the ad sought out a “woman”, she would also not investigate further. If however it mentioned the word “girl” with no age, she would probably answer it. The author could be interested in sexual activity with a child. This is why she answered the Applicant’s ad.
[22] The Crown, pointing to this evidence, equates this case with R. v. Argent, 2016 ONCA 129, [2016] O.J. No. 3273 (Ont.C.A.). The advertisement in Argent was on Craigslist and specified that the accused was looking for a woman for sexual activity who was between “18 and 30.” The investigator testified that he learned in his training that people who seek children for sexual abuse on Craigslist mention the age of 18. Craigslist, before it was shut down, did not permit personal erotic ads to list an age any lower than 18 years old. Based on this very specific evidence, the Court of Appeal held that mentioning the age 18 in the ad constituted a “flag” that the accused was looking for a child to sexually abuse. This supplied the reasonable suspicion necessary for the officer to legitimately investigate further.
[23] In the case at hand, Cst. Losier stopped well short of saying that use of the word “girl” in the Applicant’s ad was employed in a similar way. The fact is the word “girl” is commonly used in our society for women as well as children and teenagers. This a sexist and misogynist anachronism but nonetheless it remains prevalent. Cst. Losier did not say anything different. While the word “woman” or ages 18 and higher could be eliminated from further investigation, “girl” could not be. That does not indicate that “girl” has a special meaning in the casual sexual encounter world. It did not constitute a clue or a flag that this was a surreptitious request for an underage girl the way the use of the age of 18 was in Argent. It only meant that an interest in sexual activity with an underage female could not be excluded by the investigator. This did not rise to the level of reasonable suspicion.
[24] Nor did the fact that the ad was on Locanto imbue the officer with reasonable suspicion or contribute to such a finding either. The vague unsourced and unsubstantiated information that some child abusers had moved from Craigslist to Locanto was of minimal weight.
[25] I conclude that there was no suspicion objectively viewed to investigate further derived from the Applicant’s ad itself. There being no reasonable suspicion that the Applicant was interested in sexual activity with underage females, attention must turn to the police officer’s response. The question based on Ahmad is whether an affirmative response to the police officer’s reply would satisfy the material elements of the child luring offence.
[26] The police officer indicated that she was 14 years old and her username of “kitykaty14” reinforced this. The response in the context of the ad conveyed that this 14-year-old female was interested in the sexual act proposed by the Applicant. The Applicant posted an invitation; the officer accepted the invitation as a 14-year-old female. The offence was proposed by the police and was nearly complete.
[27] In the language of the offence creating section, once Cst. Losier posted her reply, she had enabled the Applicant to communicate with a person he reasonably believed to be under 16 years of age for the purpose of facilitating a sexual offence. All that was needed to complete the offence was for the Applicant to assent to Cst Losier’s acceptance, thereby indicating his agreement to sexual abuse of a child.
[28] The bright line drawn in Ahmad was crossed. In the sexual context of the communications, the officer could not assert as she did, with no prior reasonable suspicion, that she was 14 years old. To avoid entrapment, the preferences of the Applicant and his proclivities had to be drawn out with guile and subtlety by the officer prior to offering an overt opportunity to commit the offence.
[29] Cst. Losier testified that she waits for the other party to start a sexual conversation; she does not initiate it. But in this context, the sexual context was already a given in view of the content of the Applicant’s ad. In light of that, the officer could not without more simply inject the information that she was 14 years old.
[30] The situation is much like the Williams case, the companion case to Ahmad, in which there was no reasonable suspicion before the police offered the accused the opportunity to traffic in drugs on the telephone: see Ahmad at paras. 79-84. Indeed, the case at hand has even less to recommend the police mode of investigation than the Williams case. Even applying the Ahmad minority’s proposed, somewhat relaxed new framework to the police conduct in this case, Cst. Losier overstepped the bounds.
[31] Without going through the specific details of the framework proposed by the minority, their judgment emphasizes three basic requirements for entrapment (see para. 155): a. An investigation motivated by genuine law enforcement purposes; b. A factually-grounded basis for investigation; and c. An investigation directed at a specific type of crime within a tightly circumscribed location (whether physical or virtual).
[32] With respect to the second requirement of factually-based grounds, the minority wrote at paragraph 158 that the reason for the investigation must be “beyond a mere hunch, though this need not rise to the level of reasonable suspicion as that standard is presently defined.” (para. 158). Cst. Losier had, at the most, a hunch. It was barely above a purely random attempt at enticing a member of the public. There was no individualized suspicion based on the ad itself or the context.
[33] Furthermore, the third condition in the minority reasons can also not be met. It was described this way in Ahmad,
161 Third, the location of the inquiry must be tightly circumscribed. Whether the precision of the location meets this threshold should be determined by reference to the overarching question entrapment poses, that is, whether, in all the circumstances, society would view the inquiry as abusive. This requirement is in line with Lamer C.J.'s acknowledgment that the location of a bona fide inquiry must be "defined with sufficient precision" (Barnes, at p. 463).
[34] The Locanto virtual location was far too broad to satisfy this prerequisite. This was very different that the phone number provided to the police in Ahmad and Williams. There was no convincing evidence that Locanto was being use as a hive for activity such as this, as had formerly been the case with Craigslist. The number of citizens that could be impacted on a website like Locanto may well have been extensive. If what the officer did was proper, virtually any person seeking legitimate sexual contact on the internet would be fair game for dangling the opportunity to commit sexual offences against children.
[35] The Court of Appeal’s recent judgment in Ghotra, appeal as of right on this issue to the S.C.C., highlights Officer Losier’s transgression. The Ghotra case was also an internet child luring case. The trial judge had found that,
- It was the appellant who initiated the conversation with Mia (the police officer posing as a 14-year-old);
- It was the appellant who asked Mia's age; and
- It was the appellant who, being repeatedly told Mia was 14, turned the conversation to sexual inquiries.
[36] This case contrasts with Ghotra in every material feature,
- The police officer initiated the conversation with the Applicant;
- The police officer volunteered her age;
- The Applicant posted a general sexual request but it was the officer who injected the prospect of sex with a child. It was this element which, in context, made the proposed activity a crime.
[37] Put simply, unlike in Ghotra at para. 25, it was the officer, not the Applicant, who took the lead in turning the conversation to sexual activity with a child: contrast R. v. Bayat, 2011 ONCA 778, 108 O.R. (3d) 420 (Ont. C.A.) at para. 21. These two elements--sexual activity and 14 years of age--could not be combined without approaching too close to the commission of the child luring offence.
[38] For these reasons, I conclude that the Applicant was entrapped. In light of the conduct of law enforcement, this court cannot permit its process to be used for this prosecution. It constitutes an abuse of process. Proceedings on the three-count indictment before the court are stayed.
D.E HARRIS J.
Released: March 15, 2021
