Court File and Parties

Ontario Court of Justice

Date: 2018-09-04

Court File No.: Newmarket 16-02198

Between:

Her Majesty the Queen

— and —

Erhard Haniffa

Ruling on Applications to Re-Open #2

Heard: August 28th, 29th, 2018

Released: September 4th, 2018

Ms. Kellie Hutchison ............................................................................. counsel for the Crown

Mr. Boris Bytensky .......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] The defence brings two further applications to re-open the trial proceedings. The application to bring a Charter challenge is based on a trial ruling in a case which is now before the Supreme Court of Canada. The defence made no submissions on that application beyond their written material. The defence made extensive submissions on the second issue arising from further disclosure received earlier this year. For the reasons that follow, both applications must be dismissed.

Application to Re-Open to Bring a Charter Challenge

[2] The defence seeks leave to re-open to challenge the admissibility of the text messages the accused sent to the officer on the basis that they were not just received but "intercepted" by the officer without authorization pursuant to Part VI of the Criminal Code. This argument was not advanced in this trial and has been rejected by the three appellate courts that have considered it – R v Mills 2017 NLCA 12, Heard and Reserved May 25, 2018 [2017] SCCA No 125, R v Beairsto 2018 ABCA 118, Blais c R 2017 QCCA 1774. The trial courts that have considered the argument in this province have also come to the same conclusion – R v Allen 2017 ONSC 1712, R v Merritt 2017 ONSC 1648. The application is dismissed.

Application to Re-Open for Non-Disclosure

[3] In August of 2016 police obtained production orders for all the text messages received by the two undercover officers during this phase of Project Raphael. The documents showed text exchanges including those with persons who contacted the officers but did not agree to purchase sex from anyone underage, and those who agreed to purchase sex from someone underage but in the end did not show up at the hotel to complete the transaction. During the hearing of the entrapment issue (now) Insp. Truong was asked in cross-examination if anyone from the York Regional Police had gathered information about all of the calls in order to analyze that data and create statistics about the frequency of calls in which the purchase of sex from underage girls was discussed. The Inspector outlined the manner in which that data could be obtained through production orders, but he stated that the police didn't have the data and had not undertaken any such statistical analysis. He was right that there was no such analysis, but the evidence on this application shows he was unaware that by then other officers had obtained the overall data. He was not told of the existence of the production order data until February of 2018. The officer who had been following the case and could have caught the error when Insp. Truong testified happened to be away that day.

[4] In February of 2018 the Crown first learned of the production order data while responding to a disclosure request in another case. The Crown immediately disclosed those records to the defence in this case, not because they were relevant to a trial issue but to correct the mistaken answer given during the evidence phase of the entrapment hearing. The Crown did so without the necessity of an application on counsel's undertaking without the customary editing or vetting of the records in order to expedite the matter.

[5] The defence seeks leave to re-open the entrapment application based on the new information they obtained in February. They submit that there's a realistic possibility that the material could cause the court to reconsider the entrapment issue in favour of the defence. The records of the other calls are "highly relevant" to the credibility of the police witnesses, and to the issue of whether the police had a reasonable suspicion that young persons were being trafficked on the Backpage website. Based on the new information, the defence argues that in hindsight the police cast the net too wide and their small catch does not justify the intrusion upon the privacy of so many others. The fact the police made themselves available to engage in thousands of text message prostitution conversations is a massive invasion of privacy showing they were not acting in good faith. The defence suggested a statistical analysis might be applied where only a small portion of respondents actually agreed to purchase sex from children. The fact that police referred in some of these other cases to ages even younger than 15 shows that this was not a good faith exercise aimed at juvenile prostitution.

[6] The Crown submits that the test for re-opening is set out in R v Arabia 2008 ONCA 565. The Crown submits that the defence is asking the court to apply the test where there has been material non-disclosure which is different. See: R v Dixon, [1998] SCJ No 17, R v Taillefer 2003 SCC 70. On either test the Crown says that the further information provided was not relevant to this case and could have no impact on the entrapment ruling.

[7] As explained in the entrapment ruling, the Crown has proved that prostitution in York Region and in the Greater Toronto area has moved almost entirely online. At the time of this project, the Backpage website was the most popular internet prostitution site in this area. The fact that prostitution is hidden online makes it much harder for police to enforce laws regarding the trafficking of juvenile prostitutes. A brief two-week 2013 investigation identified 31 women and girls working in prostitution in York Region. Of those, 9 were under the age of 18. The average age of entry into prostitution in that group overall was 14.8 years old. The Crown's evidence including that investigation showed that child prostitution on the Backpage website was a problem in this community.

[8] Project Raphael was set up on that website. The project was aimed at curbing juvenile prostitution by targeting the customers – those who seek out or are indifferent to purchasing sex from minors. The police did not engage in random virtue testing among the population at large, but rather placed an online ad on a portion of a website where all persons present were engaged in illegal activity – communication to purchase sexual services for consideration contrary to s. 286.1. The ad targeted only a subset of that group who responded to the minimum possible stated age with descriptors all emphasizing youth: "Young, Shy, FRESH and NEW", "Be Gentle", "Super new to this", "Pretty Shy". It's not possible to narrow the focus further. As Insp. Truong explained, websites cannot and do not permit ads with a stated age of less than 18.

[9] The court heard evidence on the entrapment application that the police did not expect that everyone who responded to the ad would be seeking to purchase sex from a minor. The vast majority of the respondents did not continue to negotiate after they were told the person was minor. The production order information adds numbers but little else to the evidence already heard. It appears there may have been approximately 4000 responses to the ads in this project during the time they were posted. Some persons who contacted the officer arranged to purchase sex from the minor but in the end did not follow through and attend the hotel. Only 53 men attended the hotel to complete their transaction. There's nothing in the new information that could possibly detract from the essential findings of fact on the entrapment issue – that the police were acting pursuant to a bona fide inquiry in a place where that activity was likely to occur. Reasonably likely to occur has never meant that such activity must be occurring all the time, more than half the time or at any specific set frequency.

[10] The fact that in some other cases the officer may have suggested ages lower than 13-15 could not reasonably detract from the validity of the investigative plan or the manner in which it was conducted as it's the same offence (under 16), there is no further legal category. As Insp. Truong explained in cross-examination, there were cases they investigated involving actual child prostitutes where customers knew the girls were underage and they asked those girls to bring younger girls. He agreed it was a small number of cases and thankfully in this phase of the project nobody responded to an offer related to the younger ages, but the fact that the officers suggested younger ages in some conversations does not raise the possibility that Project Raphael was not a good faith exercise aimed at juvenile prostitution.

[11] The further information is of little relevance on the entrapment issue or any other issue relevant to the finding of guilt. On either legal test, if there was a reasonable possibility that the production information was relevant to an issue at trial such that it might lead to a different result, I would re-open the case to hear that evidence. I can find no basis on which the information cited is potentially relevant and no basis for re-opening this trial.

Conclusion

[12] These applications are dismissed.

Delivered: September 4th, 2018

Hon. Joseph F. Kenkel