Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210526 DOCKET: C66227

Watt, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Sivanesan Veerasingam Appellant

Counsel: Richard An, for the appellant Katie Doherty, for the respondent

Heard: May 18, 2021 by video conference

On appeal from the conviction entered on June 4, 2018 by Justice Christine Pirraglia of the Ontario Court of Justice.

Reasons for Decision

[1] Project Raphael is a police undercover operation designed to address the sale of sexual services of children. The police post an ad pretending to be a young girl in the section of a website called Backpage which advertises sexual services of “escorts”. The ad in this case included a photograph ostensibly of the young girl but was actually a police officer. She was scantily dressed and her face was not shown. The ad professed that the poster was 18 years old, the minimum age required by Backpage.

[2] The appellant responded to one of the ads. A series of text messages followed between the appellant and the officer. They included the following three exchanges:

Officer: are you OK if I’m not 18 yet hun? Some guys are down and some aren’t Appellant: If you OK with Officer: Im 15 hun im okay with it if u are Appellant: I’m OK Appellant: Are you new in the businesses??? Officer: Im 15 of course im new

[3] The appellant was given the hotel address and the room number. He went to the hotel and was arrested when he arrived at the room. The appellant was charged with and convicted of luring a person under 16 by means of telecommunication (s. 172.1(2) of the Criminal Code) and procuring the sexual services of a person under 18 (s. 286.1(2)).

[4] At trial, the appellant called no evidence and his counsel made no submissions regarding his guilt or innocence. The trial judge convicted the appellant.

[5] After the conviction, the appellant applied to stay the proceedings based on entrapment. During the entrapment hearing, he testified that he was confused about the girl’s age and was not convinced she was under 18. He said he tried to call her to find out her age but could not reach her because the ad said to communicate only by text. He said he went to the hotel room to “check it out” and see for himself how old she was. The trial judge dismissed the application.

[6] The appellant appeals the convictions and the entrapment decision.

Convictions

[7] To support the conviction appeal, the appellant relies on the evidence he gave at the entrapment application. He says that pursuant to the Supreme Court’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, the Crown failed to prove beyond a reasonable doubt that he believed the girl was under 18 or did not make reasonable efforts to verify her age.

[8] The appellant relies on no authority to support the use of the entrapment application evidence on the conviction appeal. Instead he draws an analogy to a fresh evidence application. He did not make a fresh evidence application. Nor did he seek to comply with the requirements of R. v. Palmer, [1980] 1 S.C.R. 759.

[9] The conviction appeal is to be considered solely on the record before the court at trial. He called no evidence and, based on the text message exchange, there was ample evidence to support the conviction. The trial judge did not err and there is no reason to overturn the conviction.

Entrapment

[10] The day before this appeal was argued, this court released four decisions in a grouped appeal dealing with Project Rafael and entrapment. [1] The court found in those cases that there had been no entrapment.

[11] The appellant argues that the basis for entrapment in his case is different. He submits that the police developed a scheme that prevented him from taking reasonable steps to verify the girl’s age. He could not call her, and he could not meet her in person to verify that she was over 18.

[12] We do not accept this submission.

[13] First, the design of the project did not deprive him of taking reasonable steps during the communication. During the communication, he made no inquiries about her age. He only inquired about her willingness to engage in a specific sex act.

[14] Second, as the application judge found, once the communication was completed, the offence was complete. For that reason, the appellant’s argument that he should have been afforded the opportunity to verify her age by visually assessing or calling her must fail. The offences in which he was charged arise from the communications. By the time he got to the hotel, the offence had already been committed: R. v. Drury, 2020 ONCA 502, at paras. 50-51.

[15] The trial judge’s finding that there was no entrapment, and in particular no inducement, was consistent with the principles on entrapment articulated in R. v. Mack, [1988] 2 S.C.R. 903, and R. v. Ahmad, 2020 SCC 11.

[16] The notice of appeal and factum raised the issue of ineffective assistance of counsel. However, this court’s protocol was not followed, and no oral submissions were made in this regard. We therefore treat this ground as abandoned.

[17] The appeal is dismissed.

“David Watt J.A.”

“M.L. Benotto J.A.”

“A. Harvison Young J.A.”

[1] R. v. Ramelson, 2021 ONCA 328, R. v. Jaffer, 2021 ONCA 325, R. v. Harrina, 2021 ONCA 326, R. v. Dare, 2021 ONCA 327.