Court File and Parties
Ontario Court of Justice
Date: 2017-11-08
Court File No.: Newmarket 16-02198
Between:
Her Majesty the Queen
— and —
Erhard Haniffa
Ruling on Entrapment Application
Heard: October 24, 2017
Delivered: November 8, 2017
Counsel:
Ms. Kellie Hutchison — counsel for the Crown
Mr. Boris Bytensky — counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Haniffa arranged via text messages to purchase sexual services from a person he believed to be a 15 year old girl. He was found guilty at trial of communicating via telecommunication with a person who he believed was under 16 for the purpose of facilitating a s.152 offence (Invitation to sexual touching) – s.171.1(2), and communicating for the purpose of obtaining the sexual services of a person under the age of 18 years – s.286.1(2).
[2] Mr. Haniffa was one of many persons charged in Project Raphael, an undercover police investigation aimed at combatting juvenile prostitution. As Detective Sgt. (DS) Truong explained, there is evidence that young persons are working as prostitutes in York Region but investigating those offences is difficult given the control and manipulation exercised by adults who profit from this business. Project Raphael adopts a strategy similar to that used in R v Chiang 2012 BCCA 85 that seeks to prevent exploitation of young persons by targeting those seeking out or willing to purchase sexual services from persons under the age of 18 years.
[3] Mr. Haniffa applies for a stay of proceedings on the basis that he was entrapped by the police. The defence notes that traditional police work has rescued dozens of young persons from work in the sex trade in this region. One two-week probe resulted in nine young persons rescued. The defence submits that this scheme targeting purchasers cannot be shown to have rescued any particular young person. It is random virtue testing with no impact on the underlying problem. The defence submits this is a clear case of an abuse of process and the proceedings must be stayed.
[4] The Crown submits that there was no entrapment in this case. The offence was complete before the officer provided an "opportunity to commit an offence" as that has been defined in this context. In the alternative, the officer had a reasonable suspicion the accused was engaged in criminal activity prior to offering any opportunity and the officer was otherwise engaged in a bona fide investigation for a legitimate and important public purpose.
[5] The parties both agree that there is no evidence the officer induced the commission of the offence, so these reasons consider the application of the first branch of the entrapment test set out in R v Mack, [1988] SCJ No 91 to the facts of this case.
Entrapment
Entrapment is not a substantive defence relating to the culpability of the accused, but arises out of the power of the courts to prevent an abuse of process. Conduct by the police which violates standards of fairness and justice cannot be condoned – R v Mack, [1988] SCJ No 91 at para 76. The onus is on the accused to show that he or she was entrapped on the balance of probabilities. Entrapment by "random virtue testing" carries the risk of attracting innocent individuals into participation in a criminal offence – Mack at para 111. Given the nature of the defence and the remedy (stay of proceedings) it is only in the "clearest of cases" that entrapment should be found – R v Ghotra 2016 ONSC 5675 at paras 20-21.
[7] In R v Mack at para 115 and R v Barnes, [1991] SCJ No 17 at para 15 the Supreme Court set out a two part test for entrapment. Entrapment occurs where:
the police provide an opportunity to persons to commit an offence without having a reasonable suspicion that the person is already engaged in criminal activity or the offer is not made in the course of a bona fide inquiry, or
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 offence.
[8] The first branch of the Mack test looks at the information the police acted upon when dealing with the accused and whether they had a reasonable suspicion regarding the accused or regarding a particular area with which the accused was associated. The second branch of the Mack test considers whether the conduct of the police went too far and induced the commission of the offence. In this regard courts have looked at whether the average person in those circumstances would have been induced to commit the crime – R v Mack at para 116.
[9] There is a crucial distinction between the police acting upon reasonable suspicion or in the course of a bona fide investigation and the state actually creating a crime to prosecute. The latter is entrapment – R v Ghotra at para 23.
Entrapment First Branch – No Reasonable Suspicion
[10] The defence submits that the police in this case were engaged in, "random virtue testing." Random virtue testing occurs where a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:
a) the person is already engaged in the particular criminal activity, or
b) the location with which the person is associated is a place where the particular criminal activity is likely occurring.
R v Barnes, [1991] SCJ No 17 at para 24
[11] On this point the submissions of counsel identified the following issues:
- Did the officer provide the accused with an opportunity to commit the offence?
- If the officer did present an opportunity, did he reasonably suspect that the accused was engaged in the particular criminal activity being investigated?
- Is Backpage.com a virtual location that is similar to the physical locations referred to in Mack at para 109 and Barnes at para 24 where the particular criminal activity is likely occurring?
[12] Both parties agree that the posting of an advertisement (ad) on Backpage.com did not provide an opportunity to commit the particular offence being investigated. The posting of the ad was an investigative step. The Crown submits that the officer did not provide any encouragement or solicitation for child prostitution until 1631h when he stated, "you will have to pay". By this time the offence was already complete. The defence submits that the opportunity to commit the offence was presented at 1435h when the officer sent a text message stating "r u ok if i'm not quite 18 yet?" The defence concedes that once the accused continued to negotiate for sexual services asking about specific sexual acts with someone who identified as under 18 the offence was complete.
[13] This was an ad for prostitution posted in a section of a website specifically directed towards prostitution ads. Beyond the description in the ad, the officer provided other hints regarding age but it wasn't until 1435h that he specifically advised the accused that Jamie (the online persona of the officer) was "under 18". After asking if "this was a cop thing or something" the accused continued the conversation about purchasing sex, "U enjoy receiving oral", "Let me know where at 5pm to be". He was arranging to purchase sex with a girl he knew was under 18 with negotiation for specific sexual acts which completes the offences alleged.
[14] The introduction of the age turned the conversation from a simple 286.1 offence into the targeted offence involving persons under 18. In the preceding discussion the accused had already asked where and what time the girl Jamie would be working that day and he had negotiated specific sexual acts. Both parties agree that the mention of age at 1435h in practical terms provided the accused with the opportunity to commit the targeted offences if he chose to continue the transaction. The Crown submits however that the accused was not "presented with an opportunity" to commit an offence at 1435 in a legal sense because that phrase has been held to have a special restricted meaning in this context. In R v Imoro 2010 ONCA 122 an officer's question "Can you hook me up?" was held to be an investigative step and not an opportunity to commit an offence.
[15] In Imoro at para 16 Justice Laskin noted that the question "Can you hook me up?" in the context of that discussion was simply a question asking whether the accused was a drug dealer. It did not provide an opportunity to commit an offence. The Crown submits that Jamie's statement as to her age is a similar investigative step even less direct that the Imoro question. In R v Ghotra 2016 ONSC 5675 the fact that an officer represented herself to be a 14 year old girl in a public chat room did not provide the accused an opportunity to commit an offence where it was the accused who turned the general conversation to sexual issues. Similarly in R v Bayat 2011 ONCA 778 the Court of Appeal held that police posing as a 13 year old girl asking to be an internet messaging friend simply provided the opportunity to talk. It did not provide an opportunity to commit an offence where it was the accused who turned the conversations toward sex.
[16] If the Crown is correct, that ends the issue of entrapment as the offence was completed in the responses after 1435h. In my view, the conversation in this case was well past the initial introductory stage mentioned in the cases cited above. The accused took the lead in the conversation in terms of purchasing sex, but it was the officer who introduced the issue of Jamie being under 18. Jamie asked the accused if he was "ok if im not quite 18 yet?" That was during their conversation in which the accused was committing an offence by arranging the purchase of sexual services. In that context, "r u ok" asked if the accused was still willing to proceed with their arrangement despite her age. If the conversation as to sex and age had been directed solely by the accused, the element of offering an opportunity would not be made out – R v Ghotra at para 54, R v Bayat at para 21. But where the accused and the officer had agreed on a location and time to meet and had agreed on sexual services to be purchased, the introduction of age at that point provided an opportunity to the accused to commit a different and much more serious offence. It's true that it was open to the accused to immediately stop the conversation once he learned that Jamie was underage and as DS Truong said the majority of persons who contacted him did so. I also agree with the Crown that there's nothing in the mentioning of age that would manipulate or compel a person to continue with purchasing sex. However, on the first branch of the Mack test, manipulation or coercion is not required.
[17] DS Truong testified that he did not have a reasonable suspicion at the time that I've found he provided the accused with the opportunity to commit the targeted offence. The fact that the persons responding to this ad were engaged in another criminal offence is not sufficient. The police may only present the opportunity to commit a particular crime where they reasonably suspect the accused was already engaged in that particular criminal activity – Barnes at para 23. A "reasonable suspicion" is an expectation that the targeted individual is possibly engaged in particular criminal activity. Reasonable suspicion engages the possibility not the probability of crime – R v Chehil 2013 SCC 49 at paras 26-27. The fact that the officer allowed for other possibilities would not necessarily have detracted from his suspicion. The Crown submits that the officer could have reasonably formed such a suspicion based on the objective facts and circumstances to that point but DS Truong testified that he was still investigating and did not subjectively have the required suspicion by 1435h so the issue of entrapment in this case turns on whether the officer was engaged in a bona fide investigation.
Entrapment First Branch (B) – Bona Fide Investigation
[18] An officer is entitled to present the accused with an opportunity to commit an offence where he or she is acting pursuant to a bona fide investigation and the accused was associated with a place where the particular criminal activity being investigated was likely to occur – Barnes at para 23. The evidence at trial showed that prostitution in York Region and the Greater Toronto area has moved almost entirely online. Online transactions are much harder to police and they provide anonymity for those who purchase and sell sexual services. Those features also make it much easier for those who wish to traffic in underage persons. DS Truong explained that the most popular prostitution site in this area currently is Backpage.com. While the Supreme Court in Barnes discussed "area" in geographical terms relevant to that case, the same principles apply to virtual presence in an online location – R v Ghotra at para 18, R v Chiang 2012 BCCA 85 at para 20.
[19] The defence submits that this was not a bona fide investigation because the fact that juvenile prostitution is occurring on the Backpage site does not prove that the purchasers there are seeking juvenile sex workers. The rules of the website require a minimum stated age of 18. The defence submits that without statistics showing the prevalence of the intentional purchase of juvenile sexual services, the officer cannot reasonably suspect that Backpage was a site where that crime occurs. Further, the defence submits that the bona fide requirement implicitly requires the court to find a significant volume of the specific criminal activity targeted occurring in the particular location.
[20] DS Truong was acting pursuant to a bona fide or good faith police project aimed at curbing juvenile prostitution. The fact that prostitution is no longer negotiated at curbside but occurs in secret online combined with the nature of the business including the control, manipulation and exploitation of young persons working as prostitutes makes it very difficult for the police to intervene, although there was evidence the York Regional Police have enjoyed some success in that regard. This project was aimed at the other end of the transaction – reducing juvenile prostitution by focusing on those who purchase sex from children. The project was set up at the leading website where prostitution is advertised in this region. Young persons whose sexual services are being sold are advertised on that site. The fact that the majority of ads may feature adult prostitutes and that juvenile prostitutes are a smaller subset as argued by the defence does not detract from the central point shown in the evidence – that Backpage.com is the location where children are being sold for sex in York Region.
[21] In this project DS Truong did not engage in random virtue testing. Mr. Haniffa was part of a group of persons seeking to obtain sexual services for consideration contrary to s.286.1 of the Criminal Code. Among that group he was part of a smaller subset who responded to an ad stating the minimum possible age with numerous descriptive words emphasizing the youth and inexperience of the person selling sexual services – "Young, Shy, FRESH and NEW", "Be Gentle", "Super new to this", "Pretty shy". Of those that remain in that small group who went further and contacted the officer, he was one that did not ask to clarify the person's age and who appeared to ignore information during the conversation that indicated the person might be underage.
[22] The Crown doesn't have to estimate the number of young prostitutes who were "saved" by Project Raphael as the purpose of the project was to prevent victimization. The evidence as a whole including the evidence and statistics referred to by the defence shows that juvenile prostitution is a serious problem in this region. The exact numbers of young persons involved is very difficult to determine due to its hidden nature online but it is unfortunately not rare. It is logical and reasonable for DS Truong to infer that while not everyone attending Backpage is seeking to have sex with an underage person, those who are seeking to do so would go to that site. The ad he placed was targeted specifically at that small group and the text of this conversation showed reasonable investigative steps in that context. Once he knew that Jamie was not 18 at no time did Mr. Haniffa ever inquire further into her age. On the contrary he turned the conversation to graphic discussions of particular sexual acts. The only concern he ever expressed in the conversation was for himself. He knew that purchasing sex from a 15 year old was illegal and he stated several times that he was concerned what would happen to him if Jamie was not the 15 year old he hoped to meet.
[23] I find the Crown has proved that this investigation as part of Project Raphael was a bona fide investigation conducted at a location where the targeted criminal activity – juvenile prostitution – was active and reasonably suspected to be ongoing. Within the site the police investigation targeted a very narrow group most likely to contain those interested in purchasing sex from young persons. I note that Madam Justice Mullins recently came to the same conclusion in R v Jaffer ONSC October 16, 2017 Newmarket (Unreported at this time). There is no evidence of random virtue testing or conduct that would breach principles of fairness and justice.
Entrapment Second Branch – Induce the Commission of the Offence
[24] Even where the police have a reasonable suspicion or are acting in the course of a bona fide investigation, if they go beyond providing an opportunity and induce the commission of the offence that amounts to entrapment – R v Mack at para 115. Both parties agree there is no evidence of pressure or inducement here. On the contrary the officer offered the accused a way out when he expressed concern he might be talking to police, "it's ok if u don't wana see me hun i understand ...". There's nothing in the conduct of the investigation that could reasonably have induced any person to commit these offences.
Conclusion
[25] The Supreme Court in Mack at para 16 recognized that for "consensual" crimes such as prostitution, "ordinary methods of detection generally will not do … The police … must take some initiatives." That observation applies with stronger reason to child prostitution which now is arranged in secret on internet websites. In R v Alicandro 2009 ONCA 133 at para 36 Justice Doherty described the dangers posed in a somewhat different context by adults using the internet to sexually exploit young persons. The BC Court of Appeal in R v Chiang at para 19 adopted those comments when discussing a police sting operation similar to this case which also targeted juvenile prostitution.
[26] I find that the defence has failed to prove the entrapment alleged on the balance of probabilities. Further, this is not one of the "clearest of cases" where a stay of proceedings would be appropriate.
Delivered: November 8, 2017
Hon. Joseph F. Kenkel
