Court Information
Date: November 13, 2020
Ontario Court of Justice Old City Hall - Toronto
Parties
Between: Her Majesty the Queen
And: Robert Ratcliffe
For the Crown: L. Vandersteen For the Defendant: L. Adler
Reasons for Judgment
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] Mr. Ratcliffe is charged with the following criminal offences:
Making child pornography on or about October 15, 2017 contrary to s. 163.1(2) of the Criminal Code;
Possessing child pornography on or about October 17, 2017 contrary to s. 163.1(4) of the Criminal Code;
Accessing child pornography on or about October 17, 2017 contrary to s. 163.1(4.1) of the Criminal Code;
Making child pornography on or about October 17, 2017 contrary to s. 163.1(2) of the Criminal Code;
Making an arrangement, on or about October 16, 2017, by means of a telecommunication device to commit the offence of sexual interference contrary to s. 172.1 of the Criminal Code;
Transmitting child pornography on or about October 17, 2017 contrary to s. 163.1(3) of the Criminal Code;
Counselling the commission of sexual interference between October 15 and 17, 2017 contrary to s. 464(a) of the Criminal Code;
Counselling the commission of sexual interference between October 15 and 17, 2017 contrary to s. 464(a) of the Criminal Code;
Counselling the commission of sexual interference between October 15 and 17, 2017 contrary to s. 464(a) of the Criminal Code;
Counselling the commission of sexual interference between October 15 and 17, 2017 contrary to s. 464(a) of the Criminal Code.
[2] Mr. Ratcliffe has pleaded not guilty to all 10 counts on the information. The trial in this matter began on April 1, 2019 with pretrial motions and continued sporadically for several days over the ensuing 18 months.
[3] On October 15, 2017 D.C. Steven Mailer, during his work as an investigator in the Sexual Assault Squad of the Toronto Police Service, came across an advertisement in the Casual Encounters subsection of the personal ads section of the website, Craigslist.
[4] D.C. Mailer, pretending to be "Sara Mills" (Sara), a fictitious mother of two fictitious daughters, responded to the ad by email and Mr. Ratcliffe, the author of the ad, replied. D.C. Mailer, who pretended to be Sara right up until Mr. Ratcliffe's arrest four days later, took up Mr. Ratcliffe's suggestion that they continue chatting on the Kik messenger service.
[5] Mr. Ratcliffe and Sara continued to chat on Kik during the days leading up to Mr. Ratcliffe's arrest. By the end of these chats Mr. Ratcliffe had, broadly speaking, offered to coach Sara in how to engage her putative children in sexual acts, arranged to engage in sexual acts with Sara and her children, graphically described various sexual acts involving the children and sent pictures to Sara that are allegedly child pornography.
[6] On October 19, 2017, the day Mr. Ratcliffe and Sara had arranged to meet, have sex, and take further steps in preparation for their sexual encounter with Sara's children, Mr. Ratcliffe was arrested by D.C. Mailer and his colleagues. Several of Mr. Ratcliffe's electronic devices, including some at his home were searched.
[7] Mr. Adler concedes that the child pornography charges have been made out beyond a reasonable doubt as concerns Mr. Ratcliffe's messages to Sara. He also concedes that the non-pornography offences (counselling and arranging) have also been proven beyond a reasonable doubt.
[8] There are three principal issues to be decided in this case:
Did D.C. Mailer breach Mr. Ratcliffe's s. 8 Charter rights by capturing their Kik conversations?
Which, if any, of the photographs sent to Sara or found on Mr. Ratcliffe's computers are child pornography?
Was Mr. Ratcliffe entrapped by D.C. Mailer's investigation?
[9] Mr. Vandersteen concedes that if I find that Mr. Ratcliffe was entrapped, all the charges must be stayed.
[10] The trial was held in a blended fashion where the evidence called by the Crown was applied to both the trial of the offences and the entrapment application.
[11] Mr. Vandersteen called two witnesses. Mr. Ratcliffe called no evidence on either the trial or the entrapment motion.
B. THE S.8 CHARTER APPLICATION
[12] Mr. Adler's s.8 Charter application was advanced for the first time in his written submissions. Mr. Vandersteen asked that I dismiss the application summarily given the lack of notice.
[13] I chose not to dismiss the application summarily despite the lack of notice. Rather, I have chosen to dismiss the application on its merits.
[14] Mr. Adler argues that Mr. Ratcliffe had a reasonable expectation of privacy in his communications with Sara and that D.C. Mailer's warrantless capture of these communications constitutes an unconstitutional seizure and that they should be excluded from evidence.
[15] In my view, Mr. Ratcliffe's s.8 application fails as he does not have a reasonable expectation of privacy in the Kik conversations. The leading case on the issue is R. v. Mills, 2019 SCC 22. Mills is a case where the police posed on the internet as a 14-year-old girl, eventually engaging in conversations with Mills who committed child luring offences in those communications. Mills argued that the capture of those communications was a s.8 Charter breach. The Supreme Court rejected that contention.
[16] Even though Mills involved the police masquerading as a 14-year-old girl, whereas D.C. Mailer posed as an adult woman, the reasoning in Mills supports my finding that Mr. Ratcliffe did not have a reasonable expectation of privacy in his communications with Sara. As Mr. Vandersteen argues, the fact that the police officer in Mills was posing as a child was not the most important factor that undermined the reasonableness of Mills' privacy interest. The Court recognized that "most relationships between adults and children are worthy of s.8's protection". Rather, it was the fact that the accused in Mills was communicating with a stranger he had just met on the internet that was more important to the result: Mills, supra, at paras 24 and 30.
[17] That the communications took place over the internet further undermines the reasonableness of whatever expectation of privacy Mr. Ratcliffe entertained: Mills, supra at para. 23; R. v. Morrison, 2019 SCC 15 at para. 58.
[18] Furthermore, these communications were confined to a singular conversation between the parties, and the capture of the conversation was done by the very person to whom Mr. Ratcliffe was communicating: Mills, supra, at paras 27-29 and 36-67. See too R. v. NJS, 2014 BCSC 2658; R. v. Phagura, 2019 BCSC 1638; and R. v. Mai, 2019 ONSC 6691.
C. THE ALLEGED CHILD PORNOGRAPHY
(a) Introduction
[19] The alleged pornography in this case falls into three broad categories.
[20] The first category is the messages written by Mr. Ratcliffe to Sara. Mr. Adler concedes that these messages are indeed "written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under" the Criminal Code and are thus child pornography pursuant to s. 163.1(c).
[21] The second category is the set of images sent by Mr. Ratcliffe to Sara over Kik.
[22] The third category is the set of images found on Mr. Ratcliffe's electronic devices.
(b) The Definition of Child Pornography
[23] Which images constitute child pornography is governed by s. 163.1(a) which defines child pornography as:
A photographic…representation…
(i) That shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) The dominant characteristic of which is the depiction for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.
(c) The Result
[24] In my opinion, the Crown has succeeded in proving beyond a reasonable doubt that many, yet not all the photos in question are child pornography.
[25] As concerns the photos sent to "Sara" I find the following images to be child pornography:
#4: This is a photo of a naked girl who is clearly under 18. She is likely eight or nine years old. She is covered in paint from her toes to a line level with her armpits. Her vulva and her chest are exposed.
#7: This is a close-up photo of an erect penis penetrating someone from behind. It isn't possible to ascertain the sex of the person being penetrated, but given how slender the hips are, how tender the skin is, and how small the buttocks are, I am convinced beyond a reasonable doubt that that person is under 18 years of age.
#10: This is a photo of a naked girl facing the camera who is clearly under 18. She is probably 11 or 12 years old. She is photographed standing in front of a naked adult man. Her vulva and her chest are exposed.
#11: This is a close-up photo of a girl's vulva being spread apart by the hand of a young person. While it is not possible to conclude that the subject of the photo is indeed under 18, she is clearly depicted as such. I refer to the pattern on her dress which bespeaks childhood.
#13: This is a photo of an underaged girl (probably 10 or 11 years old) who is apparently sleeping on her back. She is wearing only underpants and a t-shirt which is pulled up to the level of her breasts. Her right hand is posed adjacent to her genital area.
[26] There are several photos of women breastfeeding. In my opinion, the discussions between Mr. Ratcliffe and Sara about the eroticism of breastfeeding are not relevant to the determination of whether these photos are child pornography, which is an objective test. R. v. Sharpe, 2001 SCC 2 at para. 43. They do not depict sexual activity, nor do they display the sexual organs or anal regions of the infants for a sexual purpose.
[27] Several of the photos graphically depict sexual acts. Although the women in the photos are clearly young, I am not convinced beyond a reasonable doubt that they are under 18 years of age. Nor are they depicted as such.
[28] As concerns the images found on Mr. Ratcliffe's devices I find the following images to be child pornography:
#...1151: This photo depicts two young children, naked on their hands and knees in a small children's swimming pool. Their buttocks are exposed and are the focus of the photograph.
#...1160: This is a photo of an underaged girl sleeping on her back. Her only item of clothing, her nightshirt, is pulled up to her abdomen, exposing her genitals.
#...1186: This is a photo of a naked adult woman kissing a naked boy under 18. The boy's erect penis is plainly visible.
#...9572: This is a photo of a girl's genitals. Her plaid skirt is hiked and her red underwear is pulled down. The physical characteristics of her genitals convinces me that she is under 18.
#...9575: This is identical to Kik photo #11.
#...9585: This is a photo of a naked adult woman lying on her back with a naked young boy lying on top of her. They are either having sex or are depicted as such.
#...9608: This is practically identical to Kik photo #7.
#...9617: This is a photo of someone performing oral sex on a man with an infant placed right beside the man's pelvis. It is unclear whether the child is awake or asleep.
#...9618: This is a photo of a man and woman having sexual intercourse with an infant placed face down right beside, and touching the couple.
#...9619: This photo is similar to #...9618.
#...9620: This photo is similar to the two above, with an older child.
#...9621: This photo is similar to #...9618.
#...9628: This is a photo of a naked woman with an object in her vagina and a child placed right beside her.
[29] The remaining images in this category are close to the line, but they either fall short of proof beyond a reasonable doubt of sexual purpose or fall short of depicting a child "engaged in explicit sexual activity".
D. WAS MR. RATCLIFFE ENTRAPPED?
(a) The Law
[30] The law of entrapment is most clearly and succinctly articulated in the Supreme Court's decision in R. v. Mack at para. 126. There is entrapment when:
(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;
(b) although having such 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.
(b) The Parties' Positions
[31] Mr. Adler, who bears the onus of proving entrapment on a balance of probabilities, argues that D.C. Mailer did not have a reasonable suspicion that Mr. Ratcliffe was involved in criminal activity before he provided him the opportunity to commit the offences charged. Nor was D.C. Mailer's investigation of Mr. Ratcliffe a bona fide investigation as defined in the jurisprudence.
[32] Alternatively, he argues that if D.C. Mailer did have a reasonable suspicion, or if D.C. Mailer's investigation was bona fide, he nonetheless entrapped Mr. Ratcliffe by inducing the commission of the offences.
[33] Mr. Vandersteen argues that D.C. Mailer had a reasonable suspicion based on the Craigslist ad and even if he did not, his investigation of Mr. Ratcliffe was a bona fide one.
[34] Alternatively, he argues that if D.C. Mailer ever did provide Mr. Ratcliffe with the opportunity to commit the offences, it was well after he had developed a reasonable suspicion after conversing with Mr. Ratcliffe on Kik.
[35] Lastly, he argues that D.C. Mailer did not induce the commission of the offences proven to have been committed by Mr. Ratcliffe.
[36] As concerns whether D.C. Mailer either induced the commission of the offences or offered an opportunity for the commission of the offences, it is important to distinguish between the emails that D.C. Mailer and Mr. Ratcliffe exchanged prior to moving their communications to Kik, and the Kik conversations themselves. Mr. Adler does not argue that D.C. Mailer either offered the opportunity or induced the commission of the offence in the emails. It is the Kik conversations that must be examined as concerns these two issues.
(c) The Original Craigslist Ad
[37] The communications between Mr. Ratcliffe and D.C. Mailer begin with this ad posted on the Casual Encounters section of the Craigslist Personals:
Special Little m4w (Ajax)
OK. There are a million "daddy" ads on here, which is to be expected. Of course an older man wants a young adult girl to fuck and caress. But this is different. Yes, I'm older, and yes, I love young adult girls. Especially little petite girls with older man fantasies who had these fantasies since you were a young. Some of you acted on that with a lucky older man when you were legal. Some of you didn't. I'm only looking for legal (18+), of course and must prove you are. You must be tiny, pretty and clean. VERY filthy and kinky is a plus. If you just want an older man and the following things I'm going to list you might not be willing to do. Then I am not the Daddy for you. But if you get wet and excited reading it, if you recognize your own filthy incest fantasies in mine, you HAVE to reach out to Daddy to talk so we can meet up. Also, unlike a lot of these other CL daddies, I'm a REAL Daddy of a real daughter. I know what little girls actually love and want and need.
Here's some of what I'm looking for:
Storytime! Telling stories in bed until you fall asleep sucking your thumb then Daddy molests you while you sleep. I'll play with your holes. Smell them. Lick them. Kiss them. And fill them with my fingers. Then my perfect Daddy cock.
Punishment! Spanking. Bare assed across Daddy's lap. Until you're red and crying. Then Daddy will comfort you and molest you and make you feel tiny and safe again.
Bath time! Daddy will give you baths before and after. Sometimes Daddy will join you in the bath. Sometimes I will just wash you and dry you and brush your hair.
Night molesting! Sometimes Daddy will sneak into your room when you're asleep and Mom's asleep in the other room and Daddy will cover your mouth so Mommy won't hear and Daddy will have his way with you and your tiny holes like you used to dreammmmmm about. You'll be scared but you'll be so happy and proud to take care of Daddy better than Mommy. To know that Daddy loves you more than her. To know that you were made for Daddy.
Training! Daddy will worship you and train you to be the perfect fucktoy daughter. Daddy will show you every trick to being a good little girl slut, how to use all your holes and you perfect tiny body parts to please Daddy. This is what you most desire. To submit and be owned and humiliated and trained and worshipped completely. This is the best part!
Family outings! It doesn't have to be all sex. We can and should do real Daddy/daughter dates. We will go to the mall. WE will get ice cream. We will go see kid movies. You will be my little girl in public as well as private You will sit on my lap and feel Daddy get hard beneath you while you giggle and squirm and make all the other little girls jealous. We will sneak off at the mall and find a corner to fuck in. Daddy will pump you full of come and then we will walk around the mall with it dripping out of you while we walk around with everyone else.
Fuck sisters! We will find other little girls like you to share and train. We will have lots of little sisters to train together after Daddy has trained you, and we will play with them whenever we feel like it. But you. You will always be the first. The best. Daddy's perfect little come daughter. You know who you are. You're soaking now. So write and send pics. Daddy is only looking for a short window because I want a fuck daughter to train soon and worship for a long time. Not just once. [Emphasis added]
(d) The Emails
[38] D.C. Mailer, posing as Sara, responds to the Craigslist ad by e-mail and tells Mr. Ratcliffe that she lives in Scarborough, is a 33-year-old nurse – a single mother with two children who is sexually aroused by Mr. Ratcliffe's ad and may share his interests. He tells her that he is looking for "a little one that will be submissive and obedient". She says that she too "likes littles". They then agree to continue their conversation on Kik at Mr. Ratcliffe's suggestion.
(e) The Kik Conversations
[39] It is during the Kik conversations that matters progress over the next two days culminating in the commission of the various offences charged.
[40] The Kik conversations begin with Sara making it clear to Mr. Ratcliffe that she is not looking for role playing. She also asks him if he is interested in anything other than role playing. He says that role playing is only one of his interests and she asks him what other avenues he might want to explore. Given that Mr. Ratcliffe's Craigslist ad was all about role playing, this new direction is clearly initiated by Sara.
[41] Mr. Ratcliffe responds by mentioning various kinky, yet legal sexual activity he would like to pursue, and Sara responds by telling Mr. Ratcliffe that she has "incest fantasies". He responds by asking if she imagines herself being under 18 and she says: "Sometimes I fantasize that I'm an adult too and my relationship is with under 18". He then asks if she fantasizes that she is with one of her children. She responds by asking if that turns him on too and he says that it does. She tells him that she found breastfeeding her children to be erotic and he agrees that it is erotic. He tells her how much he wants to have sex with her "right now" and she asks: "What if one of the girls was with me in bed?". He asks if she would be awake or asleep and adds that he "would love for her to be pretend sleeping and watching me eat your pussy. Then watching you suck and lick me". Sara says: "She would be awake…asking questions".
[42] And then begins a discussion of what would transpire in such a scenario with Mr. Ratcliffe where Mr. Ratcliffe asks Sara if she would let her child try licking her and if she would show her child how to give a blow job. She then tells him that she sometimes thinks of touching her own children. He asks how old they are, and she tells him they are "12 and 9". He then suggests that she should masturbate with her door open so that her children can see her. She tells him she must sign off and suggests they chat again the next day. He sends her a picture of his penis and tells her he'd like to watch her being licked by her daughter.
[43] Mr. Ratcliffe tells Sara about a sexual escapade he had with a boy he used to babysit and then tells her that he had stumbled on some online child pornography. She tells him she'd love to see those images. He then tells her that he had once previously "coached a man how to get his girlfriend's daughters involved in having sex". Sara tells Rob that she hopes that "this is real" and he assures her that it is. Before signing off for the night Mr. Ratcliffe tells Sara that he will share with her "ways we can get your girls interested in sex with you".
[44] She sends him a picture of herself clothed and they discuss meeting. One of the last things he tells her before signing off is that he "would love three tongues on my cock".
[45] The next morning, he tells her that he thought of her and the girls last night before he fell asleep. She asks him what he was thinking, and he tells her "I was thinking about how I'd coach you in the art of seduction of your own girls. That you would follow my instructions. I'd want to share the rewards. Ideally, I want to participate in bed with you and your daughters. Perhaps one at a time. I'd show your daughters how to pleasure you with their tongues and fingers. We would enjoy sucking your tits together". Sara tells Rob that she has been looking for someone to show her how "all this could and should happen" and asks him for his "1st instruction".
[46] What follows is a lengthy discussion between Mr. Ratcliffe and Sara as to how they themselves will prepare, and prepare the children for an eventual sexual experience that Sara will have with her children and that all four of them will participate in. The discussion is replete with Mr. Ratcliffe describing the sexual encounters in graphic terms and providing Sara with instructions on what drugs to obtain to administer to the girls with a view to sedating them, thus rendering them more vulnerable to the seduction. She again asks to see the child pornography that he alluded to on the first day of their Kik chat and he obliges her by sending her some pornographic photos featuring children.
[47] Eventually Sara and Rob agree to meet to have sex and further prepare for sex with Sara's daughters.
(f) Did D.C. Mailer Induce the Commission of the Offences?
[48] It is logical to start with this issue, since it must be resolved regardless of the resolution of the other entrapment issues. If D.C. Mailer induced the commission of the offences, entrapment is made out and the charges must be stayed.
[49] In Mack, at paragraph 116, Lamer C.J.C. explained what constitutes inducement in the context of entrapment:
As regards the latter form of entrapment, to determine whether police conduct gives rise to this concern, it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused, i.e., a person with both strengths and weaknesses, into committing the crime. I believe such a test is useful not only as an analytical mechanism that is consistent with objective analysis, but also because it corresponds to one of the reasons why the defence is thought desirable. In other words, it may be inevitable that when apprised of the factual context of an entrapment case, members of the community will put themselves in the position of the accused; if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety. The reasoning does not go so far as to imply that the accused is therefore less blameworthy; rather, it suggests that the state is involved in the manufacture as opposed to the detection of crime.
[50] Mr. Adler argues that D.C. Mailer took advantage of Mr. Ratcliffe's vulnerabilities and presented a scenario to him that was irresistible. The vulnerability Mr. Adler refers to is the vulnerability created by Mr. Ratcliffe's strong sexual desire for Sara. As Mr. Adler put it in his oral argument, D.C. Mailer, knowing how badly Mr. Ratcliffe wanted to have sex with Sara, made the sexual involvement of her children a condition precedent to sexual involvement with her. Mr. Adler's argument amounts to this: Sara made it clear that if Mr. Ratcliffe wanted to have sex with her, he would have to accept that her two children would be involved.
[51] There is nothing in the communications between Sara and Mr. Ratcliffe that supports Mr. Adler's argument. While Sara is the first to mention incest, and the first to mention the notion of her children watching while she and Mr. Ratcliffe have sex, nothing in what she said to Mr. Ratcliffe can be construed as sending the message Mr. Adler argues was inherent in Sara's communications. Nothing Sara said suggested that she would only pursue a sexual relationship with him if her children were involved.
[52] The closest case in the jurisprudence to the type of situation envisioned by Mr. Adler is R. v. El-Sheikh-Ali, [1993] O.J. No. 2413 (O.C.J.). In that case a female police undercover agent randomly approached the accused, and before initiating discussions concerning his sale to her of cocaine, let him know that she was looking for a sexual relationship with him. As Clarke J. found, she had clearly created a motive for the accused to satisfy her request for cocaine. The accused had testified as to his vulnerability to her seduction.
[53] In my view El-Sheikh is clearly distinguishable from the case before me. In El-Sheikh the undercover officer clearly intimated that the accused would be rewarded with sex if he sold her cocaine and would not be so rewarded if he did not. Sara never told Mr. Ratcliffe that he would only have access to her sexually if he involved her children.
[54] In the recent case of R. v. Darnley, 2020 ONCA 179 at paragraph 62, the Court articulated the test to be applied in considering whether the accused was "induced" and thus entrapped:
…[I]f the average person, with strengths and weaknesses, in the position of the accused "might also have committed the offence", this inquiry supports a finding of entrapment.
[55] In my opinion this test is not met in Mr. Ratcliffe's case. The average person – even one who fiercely desired Sara – would not have embarked on plans to drug, seduce and molest her two young children in order to win an opportunity to have sex with her.
[56] Nor can it be said that there was anything coercive or threatening in Sara's communications, as was the language and behaviour of the police in cases where "inducement" and entrapment has been found such as Mack, supra, and R. v. Nuttal, 2018 BCCA 479. See too R. v. Duplessis, 2018 ONCJ 911, a decision of Javed J. where no inducement was found in circumstances where, as in the case before me, undercover police engaged the accused in online conversations after following up on a Craigslist ad.
[57] I conclude that D.C. Mailer did not induce Mr. Ratcliffe to commit the offences he committed.
(g) Did D.C. Mailer Provide Mr. Ratcliffe with an Opportunity to Commit the Offences, and if so, When?
[58] I am convinced that D.C. Mailer did indeed provide Mr. Ratcliffe with an opportunity to commit the offences he committed. The difficult question is just when this occurred. When investigative steps cease, and the provision of opportunity starts, is one of the most difficult areas in our law.
[59] The most recent authority on this issue is R. v. Ahmad, 2020 SCC 11 where at paragraphs 63-64 the Court said:
The determination of whether a police action constitutes an opportunity to commit an offence is informed both by the definition of the offence and the context in which the action occurred. Like other aspects of the entrapment doctrine, it reflects the balance struck between the state's interest in investigating crime and the law's constraint against unwarranted intrusion into individuals' personal lives. In a conversation, an opportunity will be established when an affirmative response to the question posed by the officer could satisfy the material elements of an offence. In the dial-a-dope context, in which the initial interaction between the police and target occurs entirely over the phone, the exercise centres on determining whether words spoken by the police officer constitute an opportunity to commit drug trafficking.
The inquiry, then, is properly directed to how close the police conduct is to the commission of an offence. To allow the police sufficient flexibility to investigate crime, an officer's action -- to constitute an offer of an opportunity to commit a crime -- must therefore be sufficiently proximate to conduct that would satisfy the elements of the offence. For example, in Bayat, Rosenberg J.A. concluded that beginning an online conversation with a target was not an opportunity to commit the offence of child luring. He likened the first contact to a "knock on a door" (para. 19). In his view, that initial contact was too remote from the commission of the offence to constitute the provision of an opportunity to commit an offence (see also R. v. Vezina (A.), 2014 CMAC 3, 461 N.R. 286, at paras. 5-6; Williams (2010), at paras. 45-47)…
[60] In my opinion Sara offered separate opportunities to commit the various offences. She offered the opportunity for the commission of the child pornography offences concerning the images when she asked Mr. Ratcliffe to send her the child pornography he was describing. She offered Mr. Ratcliffe the opportunity to commit the offences of counselling sexual offences against Sara's children and creating pornographic messages when she asked him what would happen if she and Mr. Ratcliffe were having a sexual encounter and the children were watching. She offered the opportunity for Mr. Ratcliffe to commit the offence of arranging an illegal sexual encounter with her children when she asked him if he would like to be there when she seduces her children.
(h) Was D.C. Mailer's Investigation a Bona Fide Inquiry?
The reasons in Mack make clear that a bona fide inquiry into a location is premised upon and tethered to reasonable suspicion. An investigation is "bona fide" where the police have a reasonable suspicion over a location or area, as well as a genuine purpose of investigating and repressing crime. A bona fide investigation is not a separate and freestanding way for police to entrap an individual, but a means of expressing the threshold of reasonable suspicion in a location. The offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or a combination of both.
The Court affirmed these principles in Barnes. There, the Court found the police had engaged in a bona fide inquiry by providing people within an area of the Granville Mall in Vancouver the opportunity to sell drugs. Their reasonable suspicion, the Court held, was grounded on objective extrinsic evidence that showed significant drug dealing activity in the area (Barnes, at pp. 460-62). This provided an explanation, which a court could meaningfully review, for why people were being targeted in that area.
[62] Mr. Vandersteen argues that the Craigslist Casual Encounters personal ads are a place where the police may offer opportunities to commit offences, even in the absence of reasonable suspicion regarding a particular, individual target. Mr. Adler argues that such a large place as the Toronto Craigslist Casual Encounters section cannot support a bona fide investigation.
[63] I agree with Mr. Vandersteen. The uncontradicted evidence offered by D.C. Mailer and the caselaw on this issue overwhelmingly support Mr. Vandersteen's contention. D.C. Mailer's experience as a sex crimes officer has imbued him with an understanding that this particular sub-category of Craigslist (which D.C. Mailer testified is no longer offered) is where people with a sexual interest in children often conduct their on-line enquiries. See R. v. Barnes; R. v. Chiang, 2012 BCCA 85; R. v. Alicandro, 2009 ONCA 133; R. v. Gerlach, 2014 ONCJ 646; R. v. Argent, 2014 ONSC 4270; R. v. Allen, 2017 ONSC 6398; R. v. Duplessis, supra.
(i) Did D.C. Mailer Have a Reasonable Suspicion that Mr. Ratcliffe was Already Engaged in Criminal Activity when he Provided him with the Opportunity to Commit the Offences?
[64] This question has both a subjective and objective component. I must inquire as to whether D.C. Mailer did in fact honestly suspect criminal activity and whether, if he did, that suspicion was reasonable. I will begin with the reasonableness of the suspicion.
(i) The Craigslist Ad
[65] To reiterate, the Craigslist ad reads as follows:
Special Little m4w (Ajax)
OK. There are a million "daddy" ads on here, which is to be expected. Of course an older man wants a young adult girl to fuck and caress. But this is different. Yes, I'm older, and yes, I love young adult girls. Especially little petite girls with older man fantasies who had these fantasies since you were a young. Some of you acted on that with a lucky older man when you were legal. Some of you didn't. I'm only looking for legal (18+), of course and must prove you are. You must be tiny, pretty and clean. VERY filthy and kinky is a plus. If you just want an older man and the following things I'm going to list you might not be willing to do. Then I am not the Daddy for you. But if you get wet and excited reading it, if you recognize your own filthy incest fantasies in mine, you HAVE to reach out to Daddy to talk so we can meet up. Also, unlike a lot of these other CL daddies, I'm a REAL Daddy of a real daughter. I know what little girls actually love and want and need.
Here's some of what I'm looking for:
Storytime! Telling stories in bed until you fall asleep sucking your thumb then Daddy molests you while you sleep. I'll play with your holes. Smell them. Lick them. Kiss them. And fill them with my fingers. Then my perfect Daddy cock.
Punishment! Spanking. Bare assed across Daddy's lap. Until you're red and crying. Then Daddy will comfort you and molest you and make you feel tiny and safe again.
Bath time! Daddy will give you baths before and after. Sometimes Daddy will join you in the bath. Sometimes I will just wash you and dry you and brush your hair.
Night molesting! Sometimes Daddy will sneak into your room when you're asleep and Mom's asleep in the other room and Daddy will cover your mouth so Mommy won't hear and Daddy will have his way with you and your tiny holes like you used to dreammmmmm about. You'll be scared but you'll be so happy and proud to take care of Daddy better than Mommy. To know that Daddy loves you more than her. To know that you were made for Daddy.
Training! Daddy will worship you and train you to be the perfect fucktoy daughter. Daddy will show you every trick to being a good little girl slut, how to use all your holes and you perfect tiny body parts to please Daddy. This is what you most desire. To submit and be owned and humiliated and trained and worshipped completely. This is the best part!
Family outings! It doesn't have to be all sex. We can and should do real Daddy/daughter dates. We will go to the mall. WE will get ice cream. We will go see kid movies. You will be my little girl in public as well as private You will sit on my lap and feel Daddy get hard beneath you while you giggle and squirm and make all the other little girls jealous. We will sneak off at the mall and find a corner to fuck in. Daddy will pump you full of come and then we will walk around the mall with it dripping out of you while we walk around with everyone else.
Fuck sisters! We will find other little girls like you to share and train. We will have lots of little sisters to train together after Daddy has trained you, and we will play with them whenever we feel like it. But you. You will always be the first. The best. Daddy's perfect little come daughter. You know who you are. You're soaking now. So write and send pics. Daddy is only looking for a short window because I want a fuck daughter to train soon and worship for a long time. Not just once. [Emphasis added]
(ii) The Law and its Application
[66] Mr. Vandersteen argues that the Craigslist ad provided reasonable suspicion of sexual assault on the part of Mr. Ratcliffe against his own daughter. Mr. Adler argues that it does not. He says that it is no more than a standard internet search by an adult male for an adult female with whom to realise and indulge in perfectly legal, albeit unusual, sexual fantasies.
[67] Reasonable suspicion is not a particularly high threshold. The leading authorities as to what constitutes "reasonable suspicion" are the companion cases of R. v. Chehil, 2013 SCC 49 and R. v. MacKenzie, 2013 SCC 50.
[68] In Chehil, at para. 26, Karakatsanis J. reiterated the definition of reasonable suspicion articulated by Binnie J. in R. v. Kang-Brown, 2008 SCC 18:
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
[69] She went on further to say:
Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard…
Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience…
A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (4th Circ. 1982), at p. 83. …
Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable". This is self-evident.
However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations…
Finally, the objective facts must be indicative of the possibility of criminal behaviour. While I agree with the appellant's submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act…
A police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.
[70] As Moldaver J. in Mackenzie makes clear at para. 72, the presence of an innocent explanation for a set of observations does not detract from the reasonableness of a suspicion that something criminal may be responsible.
...[T]he test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
[71] The Supreme Court recently dealt with the reasonable suspicion test in the context of entrapment in R. v. Ahmad, supra at paragraphs 26-28:
Requiring reasonable suspicion before tempting individuals into committing crimes also reflects Canadian law's cautious approach to the expansion of police powers. As a significant instance of that approach, our law does not consider whether the targeted accused was predisposed to commit the crime (Mack, at pp. 924 and 951-56). Allowing objectively improper police conduct to be justified by reference to the predisposition of the accused would "permit unequal treatment" (Mack, at p. 955), and risks imprisoning people even when their fundamental rights and procedural guarantees have been disregarded. There is a "fundamental inequality inherent in an approach that measures the permissibility of entrapment by reference to the predisposition of the accused" (Mack, at p. 955).
People are not protected against random virtue testing if we assume that entrapment occurs only when virtuous people would be tempted to commit crimes. The opportunity-based branch of the Mack test therefore establishes that police cannot subject anyone to random virtue testing -- virtuous or non-virtuous, predisposed or non-predisposed -- without reasonable suspicion…
Providing individuals the opportunity to commit offences without the foundation of a reasonable suspicion also unacceptably increases the likelihood that people will commit crimes when they otherwise would not have. The risk is at its highest when the person given the opportunity is comparatively vulnerable or otherwise marginalized. Random virtue testing therefore violates the principle that it is wrong for the police to manufacture crime because it "prey[s] on the weakness of human nature" to entice individuals into offending…
[72] In my opinion, Mr. Ratcliffe's reference in the Craigslist ad to being "a REAL Daddy of a real daughter" who "knows what little girls actually love and want and need" amply supports a reasonable possibility that he has sexually assaulted his "real daughter". If the ad had been about looking for a place to hold a Sweet Sixteen party, the impugned comment could not reasonably support a suspicion that the writer had molested his daughter, but it must be borne in mind that the entire ad is about seeking someone to share his fantasy about having sex with an underaged girl, and the comment about his real daughter must be evaluated in that context.
[73] As concerns the subjective branch of the inquiry, Mr. Adler argues that D.C. Mailer did not testify truthfully when he said he harboured a suspicion that Mr. Ratcliffe had molested his own daughters.
[74] He argues that if D.C. Mailer had indeed harboured this suspicion, he would have taken other investigative steps to ascertain the author's identity and move against him to protect the author's daughter.
[75] I do not accept that argument. D.C. Mailer admitted that he did not take other steps that were available to him to identify the Craigslist author. Rather, he chose the mode of investigation that is now the subject of this case – engaging him in an on-line chat that resulted in the identification of the Craigslist author, and his arrest, within days. I do not find that D.C. Mailer's "failure" to take other steps supports the proposition that he didn't honestly harbour the suspicion that the Craigslist author had molested his child.
[76] Nor do I agree with Mr. Adler that D.C. Mailer's testimony was such as to raise an issue as concerns his credibility generally.
E. CONCLUSION
[77] For the reasons set out above I find that D.C. Mailer was indeed involved in a bona fide inquiry and had a reasonable suspicion that Mr. Ratcliffe was involved in criminal activity.
[78] He was thus allowed to provide Mr. Ratcliffe with the opportunity to commit the offences in question.
[79] At no time did D.C. Mailer induce the commission of these offences.
[80] Mr. Ratcliffe was not entrapped into committing any of the offences charged.
[81] I thus find Mr. Ratcliffe guilty of all 10 counts on the information.
Released on November 13, 2020
Justice Russell Silverstein