Court File and Parties
Court File No.: [Not specified]
Date: June 27, 2014
Location: London, Ontario
Ontario Court of Justice
Between:
Her Majesty the Queen Respondent
-and-
John O'Connor Applicant
Counsel:
- V. Decker for Crown
- R. Ellis for J. O'Connor
Before: Justice Jonathon C. George
Reasons for Decision on Application
Facts
[1] The applicant John O'Connor is charged with one count of luring someone under the age of 16 by means of telecommunication, for the purpose of committing an offence, contrary to section 172.1(1)(b) of the Criminal Code of Canada.
[2] He responded to a Kijiji ad titled "Teen look for a friend", which had been posted by a member of the London Police Service (LPS). This led to email exchanges between Mr. O'Connor and an officer who was posing as a 14 year old female named Niki Bo. These email communications have been attached to and form a part of the agreed statement of facts, which has been filed and marked as an exhibit.
[3] The applicant pleaded guilty, and I find him guilty based on the representations of counsel, and after having reviewed the agreed upon facts.
[4] He, however, alleges a breach of the Charter and seeks a stay of proceeding. He asserts that his section 7 Charter rights were violated.
Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[6] This is an entrapment case. The applicant asks me to conclude the officer (posing as Niki Bo) induced him to commit the luring offence by corresponding with him in a deceitful and fraudulent manner. Beyond charter principles, I am being asked to conclude the officer's conduct violates the common law right against entrapment.
Summary of Facts
[7] I will summarize the facts.
[8] On September 20, 2012 the ad was posted on Kijiji. The applicant responded on October 4, 2012 using the name Paul. Exchanges continued over the course of several months. Some messages were provocative and sexually charged.
[9] Photos were exchanged. 'Niki' discloses to the applicant that she is a grade 9 and that her parents were separated. There was some discussion about meeting in person.
[10] The applicant was arrested on April 3, 2013. Upon his arrest, he made the following utterances:
- "I didn't do anything with her."
- "I never lured her to meet me she's only 14."
- "I never implied I would do anything with her. No sexual innuendo."
- "It's all bullshit."
- "I'm innocent."
- "I told her it's stupid, leave me alone. She's 14, I can't do this. If she's an agent you will see this. I backed out of everything she wanted."
[11] During the email communications the applicant and officer always refer to each other as Niki and Paul respectively.
[12] Below is a sampling of their email communications:
October 4, 2012 (from Paul to Niki)
Hi Nikki, how are you? Can I ask how old you are? I am afraid to say I am 40ish ☺
Paul ☺
October 5, 2012 (from Paul to Niki)
Hi….we can be friends can't we? ☺
October 5, 2012 (from Niki to Paul)
I'm 14. I'm cool with 40.
October 5, 2012 (from Paul to Niki)
Ok. That's nice ☺
So you are in high school? What grade? 10 maybe I think?
So u must like a lot of movies, going to the mall etc…..
Paul
October 5, 2012 (from Niki to Paul)
Yeah I'm in grade 9. I like movies but really like roller coasters…I can't chat now as my dads picking me up for the weekend. Sorry I missed you earlier.
October 19, 2012 (from Paul to Niki)
Can I ask where you lived before Niki?
Have a good day k…thinking of you ☺
October 21, 2012 (from Paul to Niki)
Hope your weekend is going good ☺ and that you are still smiling ☺
I go to bed thinking of you and wake up thinking of you…is that okay???
October 24, 2012 (from Paul to Niki)
I want to be with you ☺
October 24, 2012 (from Niki to Paul)
I want to be with you tooooooo……. ☺
October 24, 2012 (from Paul to Niki)
Tonight ok ☺ Will you send me one too? I need someone in my life to give me goosebumps and sparks. Something exciting.
October 25, 2012 (from Paul to Niki)
Well I want to meet u at some point ☺ And I think we need to be discreet or careful when we do. Like I said earlier looking for maybe a GF
Are you okay with that? Looking for someone to make me feel alive again LOL
October 25, 2012 (from Niki to Paul)
I'm good for being discreet and careful…..:) What do u want to go do…..
October 25, 2012 (from Paul to Niki)
Well I could meet you sometime, we can go for a drive, talk ;) If I'm lucky kiss.
Other than that, we can go or do whatever you want k.
November 1, 2012 (from Paul to Niki)
Aweee wish it was better for you. U need some TLC ;)
I will try my best in a couple of weeks to go see you ok!!! ☺
Could we be BF and GF if possible Niki if things worked out between us?
Xxxxxxxxxxxxxxxx
November 14, 2012 (from Paul to Niki)
I don't want you to live with me to get even with your mom or because you are mad at her. I want you to live with me so we can love each other and show our love to each other with intimacies.
November 14, 2012 (from Niki to Paul)
Intimacies?????
November 15, 2012 (from Paul to Niki)
Love…..sex……compassion
November 15, 2012 (from Niki to Paul)
Sex I'm not that experienced is that ok????
November 15, 2012 (from Paul to Niki)
Its ok honey ☺
We can go slow and be gentle loving ☺
But it is a crime, for us to be together. We can both get in lots of trouble.
[13] The email exchanges go on, increasing in openness about sexual possibilities. At times the applicant laments the age difference, suggesting to Niki that pursuing this isn't a good idea. It inevitably gets back on track, however, and I do not agree this is primarily a result of the officer's behavior. More on that in a moment.
[14] There are general discussions about meeting; what they would do if they did meet; and sometimes they write about making tentative plans to meet. I won't reproduce any further messages verbatim.
[15] The applicant did not follow through with his desire to meet Niki. Concrete plans were never formalized. As already indicated, he does, at various points, express concerns about her age.
Legal Framework: Entrapment
[16] An entrapment argument succeeds only if the impugned police conduct offends the basic values of the community. If it does, the appropriate remedy is a stay of proceeding. This should happen only in the clearest of cases. The leading case in this area is the Supreme Court of Canada's decision in R. v. Mack, [1988] 2 S.C.R. 903.
[17] There are two circumstances in which the police go too far, thus entrapping an accused. First, the defence of entrapment is only available where the police provide the accused with the opportunity to commit the crime, absent a reasonable suspicion the accused is already engaging in criminal activity; or if it is not part of a bona fide investigation.
[18] Second, even when there is an individualized suspicion or bona fide investigation, the police cannot induce the individual to commit the offence through deceit, fraud, trickery, reward, violence or other such conduct.
[19] In this matter, it is clear the officer was conducting a bona fide investigation. In both posting the ad, and in communicating with the applicant, who responded to the ad, he was legitimately pursuing criminals who commit a particular crime. It is true he knew nothing of the applicant specifically, but in focusing generally on those who would use Kijiji, like those on the internet generally, he was targeting individuals and groups of people who engage in child luring. Although with no individualized suspicion, I find the police were acting pursuant to a bona fide investigation.
The Mack Factors
[20] As to inducement, the court in Mack provides a non-exhaustive list of factors to consider. In determining whether the applicant has been induced, I should consider the following:
- the type of crime being investigated, and the availability of other techniques for the police detection of its commission;
- whether an average person, with both strengths and weaknesses, in the position of the accused, would be induced into the commission of a crime;
- the persistence and number of attempts made by the police before the accused agreed to committing the offence;
- the type of inducement used by the police including deceit, fraud, trickery or reward;
- the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
- whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy or friendship;
- whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
- the proportionality between police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
- the existence of any threats, implied or express, made to the accused by the police or their agents; and
- whether the police conduct is directed at undermining other constitutional values.
Applicant's Arguments
[21] The applicant argues that the officer actively led him to conversations that were more dangerous than he initially suggests or contemplates. I am directed to several passages within the communications which, I am told, support this position. The applicant also points out that it was Niki who first requests to exchanges photos.
[22] Defence counsel emphasizes that from October 23 to October 25, and on five separate occasions, it is Niki who poses the question "what do you want to do".
[23] The argument is essentially this – that it is Niki who directs and shapes the conversation by her early communications, which seemingly is prompting the accused to identify a course of action. Also, that she positively reinforces what the applicant ultimately proposes. This position is augmented by the fact that, according to the applicant, it is police persistence which brings about the discussion about meeting for sexual purposes. The logical extension of this is to suggest the officer is purposely derailing the applicant's attempts to distance himself from Niki.
[24] This persistence, the applicant argues, is present throughout, and therefore amounts to entrapment.
Crown's Arguments
[25] The Crown counters as follows. That the initial contact, through the Kijiji ad, was not the offering of an opportunity to commit an offence. Rather, it was a step in the investigation. It disagrees with the assertion that the police instigated the offence, pointing to those passages in the online exchanges which suggest otherwise. These are set out in paragraph 11 of the Crown's factum.
[26] The Crown also stresses the fact there was no preying upon any strengths or weaknesses particular to the applicant, and that any persistence was carried out and furthered by the applicant himself. Context is provided to the police decision to request a picture, which was, the Crown argues, in follow up to the applicant asking Niki whether she thinks "they will ever hang out sometime". It points out that it is the applicant who first suggests a sexual relationship, introduces sexually suggestive tones, and is the one who raises the possibility of a meeting.
Court's Analysis and Decision
[27] I have considered all of the factors relevant to entrapment. I have reviewed the case law provided by counsel, in particular the Mack decision. I have carefully reviewed the agreed statement of facts and the entire collection of email exchanges. Having assessed this matter and considered the totality of circumstances, I cannot conclude the police behavior in this instance offends basic community or societal values.
[28] This is simply not one of the clearest of cases, a threshold that must be met in order to make a stay appropriate. The police undertook a valid investigative technique, aimed at a particular crime, at a place where it is committed at a high rate (on the internet). There was otherwise no inducement.
[29] The entrapment defence fails.
Date: June 27, 2014
Justice Jonathon C. George