COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Argent, 2016 ONCA 129

DATE: 20160212

DOCKET: C61144

MacPherson, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryl Argent

Appellant

Daryl Argent, in person

Michael Dineen, duty counsel

Joanne Stuart, for the respondent

Heard: February 8, 2016

On appeal from the conviction entered on August 14, 2015 by Justice Dale Parayeski of the Superior Court of Justice, sitting without a jury, and from the sentence imposed on September 18, 2015.

ENDORSEMENT

[1] The appellant was convicted of luring a child to engage in sexual activity. He raises several grounds of appeal. With the assistance of duty counsel, he submits that the trial judge erred in dismissing his request for a stay of the conviction on the basis of entrapment. On his own, he raises other issues which we will address individually.

Facts of the Offence

[2] The appellant posted two advertisements on Craigslist seeking someone interested in smoking marijuana “and more”. The ads included photos of the appellant’s genitals. He was also shown holding a marijuana bud. The ad specified that he was looking for a woman between the ages of 18 and 30.

[3] Detective Brien Smith worked with the Child Pornography Unit of the Hamilton Police Service. Detective Smith learned in training that people who seek children will mention the age of 18. This is because Craigslist does not allow personal erotic ads to list ages less than 18. He spotted the appellant’s ads based on this training.

[4] Detective Smith responded to the ad under the guise of a 14-year-old girl named “Carlee”. Carlee’s first message was:

Hey..cool pix! im not sure which is bigger…the bud in your hand or your bud! lol!…smoked for first time at my gr8 grad a few weeks ago..yeah! lemme know when you r smokin again some time…luv to try again

[5] Carlee and the appellant then exchanged emails and messages which indicated that she was 14 years old, a virgin, in grade 8, and inexperienced with drugs and sex. The appellant pursued the correspondence with talk of oral sex and condoms for vaginal sex.

Conviction

[6] The trial judge rejected the appellant’s submission that he did not realize that Carlee was underage. He found that the appellant knew Carlee was 14 and specifically pursued sexual activity.

[7] The trial judge was then asked to stay the conviction on the grounds that the appellant was entrapped by the police. He denied the application for a stay of proceedings in R. v. Argent, 2014 ONSC 4270, [2014] O.J. No. 3041. The trial judge found that, although the police provided the opportunity to commit the offence, the officer had reasonable grounds to suspect that the appellant was already engaged in criminal activity and provided the opportunity pursuant to a bona fide inquiry. Finally, he was satisfied that the police did not induce the crime.

The Entrapment Ground of Appeal

[8] The Supreme Court of Canada summarized the proper approach to entrapment in R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, at pp. 964-965. Entrapment occurs 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 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.

[9] The appellant submits that the officer did not have reasonable grounds from the outset to suspect that there was criminal activity going on. The ad specified a woman of at least 18 years of age and this, on its own, does not provide a sufficient basis for suspicion. The appellant submits further that it was the officer who sexualized the communication by referring to the “bud” in the first email. This response, it is argued, manufactured the criminal activity and induced the crime.

[10] We do not agree.

[11] The police had reasonable grounds to suspect criminal activity when they viewed the ad as posted and as the conversation with the appellant unfolded.

[12] The ad included a photo of the appellant’s penis and requested a smoking partner “and more”. The police’s consideration of the use of the age 18 as a flag for potential child abusers was reasonable. This was the lowest age that could be posted.

[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.

Additional Grounds of Appeal

[14] We do not accept the appellant’s additional grounds of appeal.

[15] First, the appellant argues that the he was denied a trial by jury. There is nothing in the record to demonstrate that he requested and was denied a jury trial.

[16] Second, he submits that his name was incorrect on the search warrant and the arrest warrant. It is common ground that the name Daryl Shipland was on the warrants. This is his mother’s surname. She lived in the house associated with the IP address. We find that there could have been no confusion caused by this misnomer and that no one could have been misled. The appellant’s correct name appeared on the Information.

[17] Third, he argues that his medical condition was not taken into account. We reject this argument as the trial judge referred to his medical condition extensively in the sentencing reasons.

[18] Fourth, the appellant submits that there were errors in the methodology used in his psychological assessment. The assessment was requested by the appellant’s counsel and put into evidence by him. He cannot now complain about the methodology used.

[19] Finally, the appellant argues that Detective Smith tampered with evidence. There is no evidence to substantiate this assertion.

Disposition

[20] The appeal is dismissed. No submissions were made as to the sentence appeal. Leave to appeal sentence is dismissed.

“J.C. MacPherson J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”