Publication Ban Warning

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 20220524 Docket: C69545

Judges: Simmons, Harvison Young and Coroza JJ.A.

Between: Her Majesty the Queen Respondent

And

Robert Stack Appellant

Counsel: Robert Stack, in person by video conference Chris Rudnicki, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: May 2, 2022

On appeal from the convictions entered by Justice Alison R. Mackay of the Ontario Court of Justice on April 1, 2021 and from the sentence imposed on May 19, 2021.

Reasons for Decision

[1] Following a judge alone trial, on April 1, 2021, the appellant was found guilty of two counts of internet child luring, one count of breach of recognizance and one count of breach of undertaking. The second count of internet child luring was stayed pursuant to Kienapple v. R., [1975] 1 S.C.R. 729. On May 19, 2021, the appellant was sentenced to two years’ imprisonment. He appeals from conviction and seeks leave to appeal sentence.

[2] The appellant was apprehended as a result of an undercover police sting operation on a social media app known as Grindr. A police officer (the “investigating officer”) posted a profile on the app consisting of the name “Justin” and a photograph of a young male on a skateboard taken from the rear. The profile did not include an age, but the website required that users be at least 17 years old [1].

[3] After posting the profile, the investigating officer received a message from “Matthew 51” saying, “Hello if interested In older let’s talk message me back”. The investigating officer posing as Justin replied, “hi how r u? just so u know im actually 14”. Matthew 51 replied, “Oh, so are you interested?”

[4] After some chats about the possibility of sexual activity, Matthew 51 arranged to meet Justin. The appellant attended at the proposed meeting and was apprehended by the police. On conducting a search of the appellant incident to arrest, the police found a tablet containing the chats.

[5] The trial judge found that the appellant was Matthew 51. She also found that the appellant believed the investigating officer's representation that he (the appellant) was speaking to a 14-year-old boy based on the content of the chats in which the appellant made references to, for example, meeting the boy after school, the boy's exams, and whether the boy would get into trouble with his mom for feigning illness.

[6] At the time of his arrest, the appellant was awaiting sentencing for charges that involved sexual relations with an underage boy. He was ultimately sentenced to five years’ imprisonment for these offences. He also had a prior criminal record consisting of three drinking and driving convictions during the period of 1992 to 2014.

[7] The trial judge concluded that three years’ imprisonment for the child luring offence and six months’ imprisonment for the two breach offences would be a fit sentence. However, taking account of the totality principle, she reduced the sentence to two years’ imprisonment for child luring and four months imprisonment for the breaches. She then gave four months’ credit for pre-sentence custody and other factors, such as having to serve a penitentiary sentence in a detention facility without access to programming during a pandemic while awaiting trial for these offences.

[8] On behalf of the appellant, duty counsel raises the issue of entrapment. He submits that, to the knowledge of the investigating officer, Grindr is a dating/hook-up app for gay men. Considered in that context, duty counsel submits that the investigating officer’s response to the appellant’s initial text message indicating Justin was 14-years-old should be viewed as an offer of an opportunity to commit a crime. Further, given that the officer had no reasonable basis at the point the statement was made to suspect the appellant was seeking an underage partner for sexual activity, the statement constituted entrapment: R. v. Ahmad, 2020 SCC 11, at para. 20.

[9] Duty counsel also acknowledges that entrapment was not raised in the court below. However, relying on Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 21-23, he argues that this court should permit the issue to be raised for the first time on appeal because, in the particular circumstances of this case, there will be no prejudice to the Crown and refusal to entertain the issue would risk an injustice.

[10] We do not accept this submission. Guindon makes it clear that, while an appellate court has discretion to entertain a new issue of law on appeal, the “discretion is not exercised routinely or lightly” and that the appellant must show there is no “procedural prejudice to the opposing party”: Guindon, at para. 22.

[11] Here, duty counsel relies on the fact that the text communications between Matthew 51 and Justin are part of the trial record and submits that the nature of the communications and the question whether the officer had reasonable grounds to suspect an offence was being committed when she communicated with the appellant was centrally in issue at trial.

[12] Concerning the latter issue, duty counsel relies on the fact that, with the assistance of amicus curiae, the appellant brought an application at trial to challenge the validity of the search warrant that authorized the search of his tablet.

[13] During cross-examination of the police officer on the search warrant application, amicus curiae challenged the officer’s description of Grindr in the Information to Obtain and suggested that rather than being simply a dating/hookup app, the site was used for more general social purposes such as seeking friendship. In her response, the investigating officer testified that she believed Grindr was a dating/hookup app and that, in her experience, communications on the app did not consist of small talk but rather were directed at arranging sex. Although she had heard that some people used it to facilitate adult sexual encounters, she also understood from conferences she had attended that it was a place where young boys under the age of 18 would go.

[14] Duty counsel acknowledges that to succeed with the argument that the investigating officer’s response to the appellant’s inquiry constituted offering an opportunity to commit a crime, it is necessary to distinguish this case from R. v. Ghotra, 2020 ONCA 373, 388 C.C.C. (3d) 416, aff’d 2021 SCC 12.

[15] In Ghotra, the trial judge dismissed a stay application based on entrapment in an internet child luring case where the accused initiated a sexualized conversation with a police officer posing as a 14-year-old girl in an adult chat room and subsequently arranged to meet with her. On appeal, the appellant argued that the police officer presented an opportunity by posing as a 14-year-old girl in a place where he had no reason to expect to meet a 14-year-old girl. But for the presence of a 14-year-old girl in an adult chat room there would have been no opportunity to commit the offence.

[16] Among other things, this court observed that the offence was not in talking with a 14-year-old girl but rather communicating for the purpose of committing an offence. The police officer did not offer an opportunity to commit an offence merely by posing as a 14-year-old girl in an adult chat room. That would assume that any 14-year-old girl who communicates with an adult male on an adult general interest chat room is “potentially receptive to a sexual encounter”: Ghotra, at paras. 29-30.

[17] Here duty counsel submits that the officer’s description of Grindr and the nature of the communications that take place on Grindr provide the necessary context to permit this court to assess whether the investigating officer’s response amounted to providing an opportunity to commit an offence. He also submits that there is no prejudice to the Crown because the officer’s interest in and understanding of the site were fully canvassed on the search warrant application.

[18] In our view, these submissions overlook the fact that had entrapment been raised in the court below following the findings of guilt, it would have been open to the Crown to lead evidence in response to the appellant’s stay application.

[19] It is well-established that entrapment justifying a stay of proceedings can take either of two forms:

i. the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides; or

ii. having a reasonable suspicion, or acting in the course of a bona fide inquiry, they go beyond providing an inquiry, and induce the commission of an offence: Ahmad, at para. 15, citing R. v. Mack, [1988] 2 S.C.R. 903, at p. 959.

[20] At para. 19 of Ahmad, the Supreme Court confirmed that opportunity-based entrapment will not be made out where police form a reasonable suspicion that that either a specific person is engaged in criminal activity or people are engaged in criminal activity at a specific location, the latter being sometimes referred to as a bona fide inquiry. In the virtual age, before providing an opportunity to commit a crime, police must have reasonable suspicion over an individual or a well-defined virtual space, i.e., a space defined with sufficient precision to ground reasonable suspicion: Ahmad, at paras. 40-41.

[21] Leaving aside the question whether the investigating officer’s response to the appellant could even be capable of providing an opportunity to commit a crime, because entrapment was not raised at trial, the Crown was deprived of the opportunity to lead evidence to meet the requirements of the bona fide inquiry test. Such evidence could have addressed whether the police had formed an objectively verifiable suspicion that internet child luring offences were being committed in a particular virtual space, whether their search area was sufficiently narrowly defined and other similar evidence.

[22] In this regard, we observe that the search warrant application was directed at entirely different issues. While some evidence was adduced that could obviously bear on the question of entrapment, that was not the point of the search warrant application. In the circumstances, we consider it would be speculative to conclude that the Crown could not have led evidence to meet the bona fide inquiry test.

[23] In this regard, we conclude that this case is distinguishable from R. v. Kainth, 2021 ONSC 1941, relied on by duty counsel. In Kainth, the trial judge made findings that police had not received complaints about the website at issue and that the officer in that case was acting on no more than a hunch: see paras. 4, 24 and 32. As entrapment was raised as an issue at trial in Kainth, the Crown obviously had the opportunity to lead evidence to address the bona fide inquiry test. Here, no such opportunity existed as entrapment was not raised as an issue at trial.

[24] We conclude that the appellant cannot meet the first branch of Guindon. We therefore decline to entertain duty counsel’s argument concerning entrapment, which was raised for the first time on appeal.

[25] On his own behalf, the appellant argued that the trial judge erred in finding he was wilfully blind. We reject this argument. As noted above, the trial judge found that the appellant believed he was speaking to a 14-year-old boy. She did not rely on wilful blindness.

[26] Turning to the request for leave to appeal sentence, no submissions were made on the issue at the oral appeal hearing. We have reviewed the reasons for sentence. We see no error in principle nor do we consider the sentence imposed demonstrably unfit.

[27] Based on the foregoing reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“Janet Simmons J.A.”

“A. Harvison Young J.A.”

“S. Coroza J.A.”

[1] The minimum age was 17 for Android users and 18 for Apple users.