ONTARIO
SUPERIOR COURT OF JUSTICE
FILE NO.: CR-4301
DATE: 2014-07-17
B E T W E E N:
Her Majesty the Queen
Kimberly Rogers for the Crown
- and -
Daryl Lloyd Argent
Peter Boushy as Amicus
HEARD: July 11, 2014
RULING
[1] The accused Mr. Argent applies for a stay of proceedings in respect of my having found him guilty on count one of the indictment following trial. His application alleges that he was entrapped by the police, and is thus entitled to the stay he seeks.
[2] The decision of the Supreme Court of Canada in R. v. Mack, reported at 1988 24 (SCC), [1988] S.C.J. No. 91 contains a helpful summary of the doctrine of entrapment at paragraph 126. Essentially, the decision tells us that entrapment occurs when,
a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry; or
b) although having such reasonable suspicion or acting in the course of a bona fide inquiry, the authorities go beyond providing an opportunity and induce the commission of an offence.
[3] By way of very brief background, a male police officer pretending to be a female named “Carlee” communicated electronically over several months with Mr. Argent in response to two advertisements which he had placed in the “casual encounters” section of Craigslist. By means of those advertisements, Mr. Argent sought a female or females over the age of 18 with whom he proposed to smoke marijuana and have sex. “Carlee” stated very early on in the electronic exchanges that “she” was 14 years old. Mr. Argent asserted that he believed she was 16 or older. I did not accept his assertion, and convicted him of what is known colloquially as internet luring of a person whom he believed to be under 16 years of age.
[4] At the considerable risk of over-simplifying what were superbly made and focused arguments, the positions of the parties on the issue of entrapment are as follows:
Mr. Argent argues that what was communicated to him by the police officer in his guise as “Carlee” amounted to the providing of an opportunity to commit an offence in circumstances where there was neither a) a reasonable suspicion that he – Mr. Argent – was already engaged in criminal activity or b) the making of a bona fide inquiry. In the alternative, Mr. Argent asserts that there was inducement.
The Crown’s position is that the communications of “Carlee” did not provide an opportunity to commit an offence, but if they do, the police officer was acting on a reasonable suspicion that Mr. Argent was already engaged in criminal activity and/or that the communications were made pursuant to a bona fide inquiry. The Crown also argues that there was no inducement.
[5] I see the issues before me as follows:
Did the communications of “Carlee” amount to the providing of an opportunity to commit an offence?
If those communications did amount to the providing of an opportunity to commit an offence, were they done in the context of a reasonable suspicion that Mr. Argent was already engaged in criminal activity or pursuant to a bona fide inquiry?
Even if either context existed, was there inducement as defined in law?
[6] In respect of the first issue, if there was no providing of an opportunity to commit an offence, there cannot have been entrapment, and the inquiry would end there. If there was such provision, the next two issues as outlined need to be examined and analyzed.
[7] The Crown says that “Carlee’s” communications “merely offered [Mr. Argent] an opportunity to communicate on line and asked a series of neutral, open-ended questions…directed toward confirming Mr. Argent’s intentions”. (I quote from paragraph 6 of the Crown’s factum). Mr. Argent says that it was the character “Carlee” who was leading the conversation with respect to sex, rather than the other way about.
[8] While there is danger inherent in taking a few phrases from the exchanges and considering them together, that danger being the possibility of overlooking or minimizing greater context or being persuaded by sheer accumulation, I am persuaded that the “words” of “Carlee” shown at paragraph 5 of Mr. Argent’s factum take what was communicated by the police officer over the line from mere neutral investigation into the territory of providing an opportunity commit an offence.
[9] Of course, this conclusion leads to the next issue. Entrapment is not made out if that providing of such an opportunity occurred in the context of the officer acting on a reasonable suspicion that Mr. Argent was already engaged in criminal activity or was communicated pursuant to a bona fide inquiry.
[10] The questions become:
a) was the officer acting in a reasonable suspicion that Mr. Argent was already engaged in criminal activity; or
b) was providing the opportunity done pursuant to a bona fide inquiry?
[11] Mr. Argent points to an exchange during the cross-examination at trial of the police officer to demonstrate that no such reasonable suspicion existed. The officer acknowledged that prior to opening Mr. Argent’s Craigslist advertisements, he (the officer) had no reasonable suspicion that Mr. Argent “was committing illegal activity via, for example the internet”.
[12] The Crown counters that it would be incorrect to consider the issue of reasonable suspicion only within the timeframe addressed by that portion of the cross-examination, which, as I have said, was prior to accessing Mr. Argent’s Craigslist advertisements.
[13] The officer testified that, based upon his experience and training, people who advertise on Craigslist for partners as young as 18 are sometimes actually looking for younger partners. 18 is the minimum age which Craigslist will publish.
[14] I agree, also, as I set out in my summary of the evidence in my trial ruling, within the first day of exchanged messages, and after “Carlee” indicated that she was 14, Mr. Argent was responding to the message “U don’t mind if it was my first time ‘cause I don’t know how to do anything” with explicit reference to oral sex and “We could do that if you are up for it whatever you’re up for I’m probably down for”. At those points, I am quite satisfied that a reasonable suspicion that Mr. Argent was already engaged in criminal activity had came into existence. It should be remembered that the communications went on for months.
[15] Thus the providing of an opportunity to commit an offence, as I have found here, did take place in the context of a reasonable suspicion as articulated. Accordingly, entrapment is not made out.
[16] I now turn to the question of whether the providing of the opportunity was done pursuant to a bona fide inquiry.
[17] The Crown asserts that the police officer was engaged in a bona fide inquiry throughout. Mr. Argent asserts that the inquiry was not bona fide because it was based upon the officer’s limited training and perspective about internet luring in the locale in question, i.e. in or near Hamilton. The officer gave evidence that much of his training had consisted of learning from U.S. based experts.
[18] Parliament, in its wisdom, has, by means of the Criminal Code provisions at issue in this case, deemed the internet to be the equivalent of a bad neighbourhood. Just as the police can engage persons frequenting neighbourhoods known for drug dealing activity, for example, differently than they can with people in other geographical locations, so can the police engage differently with people who run explicit advertisements on Craigslist and then communicate with people who assert themselves to be under 16 years of age by means of a computer. The Criminal Code provisions apply across the country, and are not specific to any geographically limited area. For better or worse, the internet is considered to be universal. I am not convinced that the investigation here was done in anything other than a bona fide context. Accordingly, entrapment is not made out on that basis.
[19] This leaves the issue of inducement. The Supreme Court of Canada has described inducement as follows in its decisions in R. v. Mack, supra. I refer to paragraph 120 of that decision. Inducement is said to occur when “the police have gone beyond merely providing the opportunity for the commission of a crime and have entered into the realm of the manufacturer of criminal conduct”. The quote goes on at paragraph 121 to say that “the inducement may be but is not limited to deceit, fraud, trickery or reward, and ordinarily but not necessarily will consist of calculated inveigling and persistent importuning”. It is plain from that case that there is no simple or precise way to measure whether the police crossed that line in any individual situation. One appropriate measure is to consider whether the average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime. Considering that element, and the context of what happened in this case, and in particular the timing details that I have already discussed, I am satisfied that the police did not induce the crime. I am satisfied that the average person would likely have ended the communication the moment that “Carlee” stated her age to be 14.
[20] Accordingly, I find that there was no inducement.
[21] The application for a stay on the basis of entrapment is denied. I thank counsel once again for their most able arguments and assistance throughout.
Parayeski J.
Released: July 17, 2014
FILE NO.: 12-3407
DATE: 2014-07-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Daryl Lloyd Argent
RULING
MDP:mw
Released: July 17, 2014