ONTARIO COURT OF JUSTICE

DATE: 2014·11·05

SUDBURY, ONTARIO

Citation: R. v. Gerlach, 2014 ONCJ 646

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RICHARD GERLACH

Before Justice A.L. GUAY

Heard on August 11 and September 18, 2014

Reasons for Judgment released on November 5, 2014

Philip Zylberberg .................................................................................... counsel for the Crown

Michael Venturi ................................................... Counsel for the defendant Richard Gerlach

GUAY J.:

[1] The accused, Richard Gerlach, was charged with luring, pursuant to section 172.1 of the Criminal Code of Canada. On August 11, 2014, the date set for trial, the accused plead guilty to committing the offense. It was at that time that his counsel indicated the accused was asking that a conviction be stayed on the basis of entrapment.

Luring: The Offence

[2] Before turning to an examination of the accused’s claim that he was entrapped by the Greater Sudbury Police Service into committing the offence of luring, it is first necessary to review the facts in this matter to see how the accused’s conduct led to his conviction for that offence. The section of the Code which establishes the offence of luring, section 172.1, provides among other things that a person who by means of telecommunication communicates with a person who is, or who he or she believes is, under the age of 16 for the purpose of facilitating the commission of a prescribed offence (for purposes of this matter, section 271) with respect to that person commits the offence of luring.

[3] In R. v. Legare ((2009)S.C.J. No. 56; (2009)3 S.C.R.551)), a 2009 decision of the Supreme Court of Canada with respect to luring, the Court agreed with the Alberta Court of Appeal that the trial judge had misapprehended the essential elements of the offense of luring set out in section 172.1 of the Code. That section, the Court held, had created what it called an “incipient” or “inchoate” offense, which it described as “a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime”.(see paragraph 25) The section, the Court noted,

…criminalizes conduct that precedes the commission of the sexual offenses 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 offenses. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey.

[4] In Legare, the accused participated in an Internet chat forum with a 12-year-old complainant. Eventually their conversations became more private and sexual in nature, despite the fact that the accused had become aware the young person involved was underage. Writing for the Court, Fish J., at paragraph 36 of the decision, set out the elements of the offense of luring, stating:

To sum up, then, I reiterate that s. 172.1 (1)(c) compromises three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 (now16) years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offense-- that is, abduction or one of the sexual offenses mentioned in s. 172.1 (1)(c)--- with respect to the underage person….All three elements must, of course, be established by the Crown beyond a reasonable doubt.

[5] The intention required for someone to commit the offense, Fish J. pointed out, was that of a specific intention of facilitating the commission of a designated offense. Facilitation, he further noted, meant helping to bring about and make easier or more probable the commission of a prohibited offense. (see par. 28 and 32)

Facts Underlying the Offence

[6] On February 24, 2013, Richard Gerlach, the accused in the present case, posted an ad for a sexual encounter on the Internet website “Craigslist”. He gave as his e-mail address for reply purposes the following address: older _ for_younger@sympatico.ca. Under the headings of “”Sudbury” and “Casual Encounters”, the accused offered to host a sexual get-together with couples at his home or a location available to him. In this ad, the accused specified that he preferred persons under the age of 30, male or female, noting that the couples could be “of any age”.

[7] Unknown to the accused, the response to his posting the next day, February 25, 2013, came from Detective Constable Blair Ramsay, a police officer employed with the Greater Sudbury Police Service’s cybercrime unit. In his response to the accused’s ad, Constable Ramsay portrayed himself as “Sarah” (later “Sarah Dixon”) a 13-year-old girl living in the Sudbury area. “Sarah” indicated to the accused that she had a bisexual, 16-year-old boyfriend. “Sarah” suggested to the accused that she and her boyfriend would be prepared to participate in sexual activity with him.

[8] Between February 25, 2013 and April 3, 2013, a number of text messages were exchanged between “Sarah” and the accused. These exchanges would culminate in an agreement between them to meet in the parking lot of a plaza in downtown Sudbury. It was on this latter occasion that the accused was apprehended and arrested by members of the Greater Sudbury Police Service.

[9] A number of e-mails were initially exchanged between the accused and “Sarah” on February 25, 2013. No e-mails were exchanged between them on February 26. On February 27, the accused sent another message to “Sarah” inquiring whether she was still interested in getting together with him. On that day, a number of e-mails were exchanged between them. No e-mails were exchanged between February 27 and March 1, 2013. On March 1, the accused again took the initiative in contacting “Sarah”, wondering how she had made out with her boyfriend and inquiring whether any of “Sarah’s” girlfriends were interested in joining the proposed sexual get-together.

[10] No further-mails were exchanged between “Sarah” and the accused until April 1, 2013, one month later. At this time, “Sarah” told the accused that she and her boyfriend had split up. Instead, she offered to bring a girlfriend along to share in their sexual get-together. It was on this latter occasion that “Sarah” offered to skip school on April 2, suggesting to the accused that he pick her and her girlfriend up.

[11] On April 2, the accused contacted “Sarah” early in the morning to see if she was still there. Later that day, Sarah responded to his message, apologizing for her inability to get back in touch with him sooner because her mom had called in sick to work and had stayed home that day. She told the accused that her mother would be working from 1:00 p.m. the next day and that she would not return home until 9:00 p.m.

[12] The accused contacted “Sarah” on April 3 at about 3:00 pm. He asked her to let him know when she was ready and made arrangements to pick her up. He told her that he would be driving a Ford F150 silver pickup truck with a 4 x 4 black cab. It was on that occasion that he was apprehended

Constable Ramsay’s Evidence

[13] In his evidence, Constable Ramsey reviewed the training he had received for his work with the cybercrime unit of the Greater Sudbury Police Service. He noted that he had been alerted to “Craigslist” as a portal for child pornography and luring by an American police officer by the name of Nichols, while attending a police conference in Niagara Falls, Ontario, in 2011. It was at this time, he testified, that his attention was specifically drawn to the classification of “Casual Encounters-Sudbury” on the “Craigslist ”Internet site. In 2012, at another conference he attended, Constable Ramsay’s attention was further alerted to the existence of a search engine or tool devised by the Ontario Provincial Police as a method of filtering out ads or material directed to underage children by those seeking to exploit them or lure them into criminally prohibited, sexual activity. This search engine or tool made use of certain key words or phrases designed to attract underage children into criminal sexual activity. One of these phrases or terms was that of “any age”, such as later appeared in the accused’s posting on “Craigslist”.

[14] Constable Ramsay testified how, as a police officer with the cybercrime unit dealing with child pornography and luring, he regularly checked Craigslist a few times a week. His focus was, he stated, on criminal activity in the Northern Ontario detachment area and, in particular, in the cities of Sudbury, North Bay, Sault Ste. Marie and Timmins. Constable Ramsay indicated that he divided his work time between “reactive” and “proactive” methods of investigation. Reactive investigation was, he explained, investigation in which he followed up on specific complaints by young persons or their families relating to their personal experience or involvement with undesirable persons wishing to be or currently involved with them in inappropriate sexual activity or communication over the Internet. Proactive investigation, Constable Ramsay further explained, involved covertly seeking out persons involved in child pornography and luring children into criminal sexual activity. Constable Ramsay testified that since 2012, he had on approximately 10 occasions been able to enter into contact with persons engaging in criminal sexual activity with children.

Entrapment

[15] In his defense, the accused argued that the police had gone beyond providing him with an opportunity to commit the offence of luring and had induced him to commit that offence. The accused cited a number of cases on entrapment, most of these cases relating to the offence of trafficking in narcotics.

[16] In the leading case on the issue of entrapment, the 1998 decision of the Supreme Court of Canada in R. v. Mack ((1988)2 S.C.R..903); (1988)S.C.J. No. 91)), the Court addressed the defense of entrapment and the reasons for its existence. The case arose out of an appeal by the accused from his conviction for drug trafficking. The accused, a former drug addict, had been approached by a police informer who, over a period of six months had pressured him into selling him drugs. To achieve his purpose, the police informant had used persistence, threats, and the promise to pay the accused a large amount of money for selling drugs to him.

[17] At paragraph 115 of its decision, the Court noted that entrapment occurs when (1) the authorities provide an opportunity to persons to commit an offense without reasonable suspicion or (2) act with mala fides (bad faith),… or, (3) when 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 an offense.

[18] In Mack, the Court was concerned with the abuse of police power. It noted that the absence of reasonable suspicion or the context of a proper (bona fide) police inquiry was significant in assessing the conduct of the police, the risk being that police conduct would attract persons without involvement in crime and also because the use of such policing tactics was an improper use of police power for the purpose of randomly testing the virtue of members of the public. Even the presence of reasonable suspicion or the existence of a bona fide inquiry would not, the Court held, justify the use of entrapment techniques. The police, the Court noted, could not go beyond providing an opportunity to the accused to commit an offence regardless of the accused’s character or the existence of an honest inquiry on the part of the police. Furthermore, the Court observed, before the defense of entrapment could be invoked, the Crown must first have proven the essential elements of the offense beyond a reasonable doubt. (see paragraph 141)

[19] In R.v Bayat (2011 ONCA 778;108 O.R.(3d)420)) a 2011 decision of the Ontario Court of Appeal, the Court overturned the acquittal of the accused in a luring case wherein the accused had made Internet use of his videotaped sexual acts with a 16-year-old girl. A police officer, posing as a 13-year-old girl, sent the accused a message asking him to allow her to participate as a friend on his Internet account. The police officer, posing as “Natasha” sent the accused a non-sexual photograph of herself. Having received it, the accused subsequently engaged in sexually explicit discussions with her, eventually requesting that they meet. While the accused was found guilty, the trial judge stayed the charge on the basis of entrapment principally because he determined that the officer had not had a reasonable suspicion that the accused was engaged in prohibited criminal activity when he first contacted the accused. The police officer, the trial judge found, had insufficient grounds on which to ground the requirement of reasonable suspicion before he presented an opportunity to the accused to commit the prohibited offense. The Court found that the initial contact between the police officer and the accused was, in reality, an investigative step and that the requirement that there be a reasonable suspicion that someone was committing the offense of luring (in that case) before presenting him with an opportunity to commit the offence had not been breached. At paragraph 19 of the decision, Rosenberg J.A. writing for the Court stated:

The issue is a difficult one and the line between simple investigation and offering an opportunity to commit an offence will sometimes be difficult to draw. In my view, the trial judge erred in failing to consider whether the officer’s conduct in simply opening up a dialogue with the respondent constituted an opportunity to commit an offence. As is apparent from the passage in the trial judge’s reasons set out above, at par. 13, the trial judge held that the reasonable suspicion had to exist from the moment the officer contacted the respondent. He failed to consider whether the initial contact was an offer of an opportunity to commit an offense. In my view, it was not. The initial contact was no more than a step in an investigation, the equivalent of a knock on a door.

Analysis

[20] There is no issue in the present case that the accused is guilty of the offense of luring in that he plead guilty to the offense and the factual situation agreed to by both the accused and the Crown as the basis for doing so establishes beyond a reasonable doubt that he committed that offense.

[21] With respect to the defence of entrapment, a number of questions must be posed and answered. The first issue to be resolved is whether Constable Ramsay was carrying on a bona fide investigation at the time he responded to the accused’s posting on Craigslist. The second issue for resolution is whether Constable Ramsay had a reasonable suspicion that the accused was engaged in conduct contrary to section 172.1 of the Code at the time or subsequent to the time Constable Ramsay exchanged Internet texts or e-mails with him. On the basis of Constable Ramsay’s evidence which I accept, I find that he was engaged in a bona fide investigation with respect to Internet luring at the time he responded to the accused’s posting on Craigslist on February 25, 2013. He described his work as being divided between reactive and proactive investigation and the facts admitted in evidence clearly establish that his response to the accused’s Internet posting was part of a bona fide, pro-active investigation into the crime of luring occurring over the Internet in northeastern Ontario and elsewhere in Canada. As disclosed in Constable Ramsay’s evidence, his investigation was targeted to the major urban centers in northeastern Ontario. His investigation was carried on by him on a continuing weekly basis as part of his duties with the cybercrime unit of the Greater Sudbury Police Service. There was nothing random about his investigation in this case.

[22] With respect to the issue of whether or not Constable Ramsay had a reasonable suspicion for carrying out this investigation in the manner that he did, I find that the evidence establishes that his training and the approach taken by him to the offense of luring led him to reasonably suspect that the accused was engaged in such prohibited activity over the Internet with the use of his computer. In particular, I note his evidence with respect to his information that Craigslist was a portal for luring and other types of offenses against children over the Internet and that he made use of an Ontario Provincial Police search engine to segregate those ads or postings on the Internet directed at underage children.

[23] The evidence indicates that on more than one occasion, once he was presented with the opportunity to engage in sexual activity with an underage child or someone holding herself out as such, the accused took the initiative to pursue that opportunity freely and without coercion. Unlike the situations outlined in Mack and similar cases, there was no inducement offered to the accused which would cause the average person to engage in activity which amounts to luring contrary to s. 172.1 of the Criminal Code of Canada. Constable Ramsay did not post an ad on Craiglist which led or had the effect of causing an unsuspecting, adult person to consider engaging in sexual activity with a child. No undue pressure was brought to bear on the accused to continue to engage in activity prohibited by s. 172.1 of the Criminal Code. The one-month hiatus between March 1 and April 1, 2013, in which the accused received no postings or e-mails from “Sarah” clearly gave him the opportunity reconsider this proposed activity with “Sarah”. His response to her e-mail on April 1 convincingly establishes his considered intention to engage in sexual activity with an underage child. One suspects that if he had resiled from his plan, he might indeed not have continued to be the subject of a continuing police investigation into child luring. The resumption of his illegal activity on April 1, 2013, only served to confirm to Constable Ramsay that he was indeed dealing with an individual who was prepared to use the Internet as a means of obtaining sex from underage children rather than with an individual who had been misled for a brief moment or short period of time into considering participating in such activity .

[24] In no sense did the conduct of Constable Ramsay, the investigating officer, constitute random value testing with respect to the accused. This was clearly not a situation in which Constable Ramsay, as a member of the cybercrime unit of the Greater Sudbury Police Service, was seeking to induce an innocent member of the public into committing the offense of luring. It was the accused who posted an ad seeking sexual encounter, this ad suggesting that he was prepared to engage in sexual activity with underage persons or couples. This ad made it clear that in prospective sexual encounters with couples, being underage was not for him an obstacle, even if it might be argued that he would have been considering involvement with persons around the age of 30. Constable Ramsay, posing as “Sarah” made it clear from the start that she was part of a couple who proposed to enter into sexual activity with him and that she was 13 years of age. As was noted by Constable Ramsay in his evidence, similar information had in the past resulted in rebuff from responding parties not interested in engaging in prohibited sex with underage and vulnerable children

Conclusion

[25] In Legare, the Court cited Doherty J.A. in R.v. Alicandro (2009 ONCA 133; 246 C.C.C.(3d)1) about the purpose of s. 172.1 of the Code, where the latter explained:

The language of 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. 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 fast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet’s one – (to)-many broadcasts 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 are 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 forerunners in the use of new technologies and in the exploration of social life within virtual settings.(Gregory J. Fitch, Q.C., “Child Luring” (Paper presented to the National Criminal Law Program: Substantive Criminal Law, Advocacy and the Administration of Justice, Edmonton, Alberta, July 2007), Federation of Law Societies of Canada, 2007, s.10.1, pp1& 3) see paragraph 26 of Legare).

[26] These comments and the jurisprudence on this issue indicating the need to protect children from sexual exploitation and harm underline the need for section 172.1 of the Code as well as the difficulty of protecting children as a result of the use of the Internet by adults seeking to ensnare them in their sexual activities. While not unlike the jurisprudence with respect to the issue of entrapment in drug trafficking matters, the jurisprudence dealing with entrapment in luring and other cases involving the sexual exploitation of children through the use of the Internet suggests the need for a greater degree of latitude when evaluating and characterising police tactics in such cases where the underlying activity is less geographically centered and world-wide in scope as well as greatly more anonymous and less susceptible to detection and, consequently, proof. In reviewing the reported facts in drug-related entrapment cases, for example, what constitutes lack of reasonable suspicion or bona fide investigation appears to be more strictly evaluated than in similar concepts are in cases involving the exploitation of children for sexual purposes. (see R. v. Swan ((2009) 2009 BCCA 142, B.C.J. No.623;2009 BCCA 142); R. v. Benjamin,(ONCA) (1994)O.J. No. 1373;24 W.C.B.(2d)58 and R. v. Izzard (2012)(OSC)O.J. No. 2516). Arguably, the damage resulting to society from the failure to detect and prosecute illicit drug-related activity is far less than that resulting from the failure to detect and prosecute the sexual exploitation of children. I am not suggesting that the law applicable to entrapment is less applicable in cases involving the sexual exploitation of children but that the assessment of what transpires in the prosecution of such cases in order to uphold the criminal law and the difficulty in doing so seems to change the nature of what is done and necessitates a greater appreciation of the particular strategies used in dealing with Internet crime. This is not an area of human activity where the concepts of reputation, geography, criminal record, tangible goods, personal experience and public observation among other factors are at play before our eyes.

[27] Whatever the case generally, however, I find that the defense of entrapment is not available to the accused and that it has not been made out by him. The accused’s request for a stay of proceedings in this matter is therefore denied. Consequently, a finding of guilt will be registered him.

Released: November 5, 2014

Justice A.L. Guay