CITATION: R. v. Allen, 2017 ONSC 6398
COURT FILE NO.: CR-15-0152
DATE: 20171025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GARRY PHILLIP ALLEN
Applicant
K. Hull, for the Respondent/Crown
J. Sickinger, for the Applicant
HEARD: August 28, 2017
ENTRAPMENT RULING
DiTOMASO J.
THE APPLICATION
[1] The Applicant Garry Phillip Allen (“Allen”) has been convicted of four counts of child luring and one count of making sexually explicit material available to a child. My Reasons for Judgment were released on June 23, 2017.
[2] On August 28, 2017, Mr. Allen brought this application where he submitted that the actions of D.C. Wohlert amounted to entrapment and that registering convictions against Mr. Allen would amount to an abuse of process. Mr. Allen further submitted that the appropriate remedy was a stay of proceedings.
[3] This matter returned before me on October 20, 2017 at which time the parties were advised that the application was dismissed with written reasons to follow. Here are my written reasons.
OVERVIEW
[4] By way of overview, a summary can be taken from my Reasons for Judgment at paras 3 to 9 inclusive.
[5] On April 16, 2014, O.P.P. D. C. Wohlert was assigned to the Internet Child Exploitation Unit, as part of his duties conducted a “sting” operation where he posed as a child on websites that, in his experience, were used by child predators. He browsed the sexual encounters area of Craigslist, Barrie, looking for advertisements that could be related to child exploitation. He noted an advertisement requesting “a young woman” and “prefer under 110 pounds”. He sent a private message to the person who posted this advertisement, posing as “Jenny”, a 14 year old girl from Innisfil. D. C. Wohlert sent a “selfie” picture to “Garry” as “Jenny”.
[6] Over approximately two months, “Garry’s” messages included sending “Jenny” links to two pornography websites, RedTube and Badjojo; asking whether “Jenny” had her period yet; requesting nude photographs though, ultimately, he instead asked for a picture in yoga pants; commenting on her “sexy” body; asking whether “Jenny” masturbated and offering to direct her on how to do so; stating that he would like to have his tongue all over “Jenny’s” body and make her “feel like a woman”; and after talking about a meet-up, stating “if we meet on Wednesday and im not to gross for you can i touch your little butt [sic].”
[7] “Garry” sent a photo of himself in a Maple Leafs hoodie to “Jenny.” Like the photos sent by the D. C. Wohlert, “Garry’s” photo did not show his face.
[8] Ultimately, “Garry” arranged to meet with “Jenny” on June 11, 2014, at a park in Innisfil. Prior to the meeting, “Garry” cancelled, saying that he had to cover for a colleague at work.
[9] By this point, D. C. Wohlert had obtained details about the I.P. address used by “Garry.” The customer details associated with that particular I.P. address showed Garry Phillip Allen of 101 Compton Crescent in Innisfil.
[10] Later that evening, after receiving judicial authorization, D. C. Wohlert and several O.P.P. and South Simcoe Police officers went to 101 Compton Crescent. There, they found Mr. Allen in the home. His wife and infant granddaughter were also present. Mr. Allen was arrested and transported to the South Simcoe police station, where he provided a statement to D. C. Wohlert.
[11] Officers searched 101 Compton Crescent, and discovered a desktop computer with a user profile called “Garry.” Forensic examination retrieved photographs that were sent between “Jenny” and “Garry”, chats between them, and repeated use of the email address that “Garry” had provided to “Jenny.” Police also located a Maple Leafs hoodie which appeared to match the one worn by “Garry” in a photo.
[12] In addition to the above, the Reasons for Judgment included a summary of the evidence of the police witnesses, in particular, D.C. Wohlert and Mr. Allen. Further, there was an evidence review of the Chat Log Book marked Exhibit 10 at trial.
ISSUES
[13] On this application, the issues are two-fold:
(a) Did the actions of D.C. Wohlert amount to entrapment?
(b) If so, is the appropriate remedy a stay of proceedings?
POSITIONS OF THE PARTIES
Position of the Applicant Allen
[14] Mr. Allen submits that D.C. Wohlert did not have the requisite reasonable suspicion that Mr. Allen was already engaged in criminal activity when D.C. Wohlert offered Mr. Allen the opportunity to commit an offence. It is submitted that on the officer’s own evidence that the ad to which he responded did not contain the hallmarks or common markers of a child predator.
[15] It is submitted that D.C. Wohlert was merely suspicious of the words “young woman” even though he testified that this indicated someone over the age of eighteen.
[16] D.C. Wohlert referred to Craigslist as a “known predatory website”. It is submitted that this is not subjectively borne out by his evidence. He testified that in thousands of investigations, over the course of two years, his use of Craigslist had only generated three arrests and none of those arrests involved actual children.
[17] It is submitted that the evidence D.C. Wohlert and the Chat Log show that Mr. Allen had already indicated that he was not seeking to chat with somebody under the age of eighteen after D.C. Wohlert’s initial communication. Further, it is submitted that D.C. Wohlert was involved in random virtue testing and that the police were not conducting a bona fide investigation. Also, it is submitted there was no well-defined space or location to support a bona fide inquiry.
[18] It is submitted that if D.C. Wohlert was initially engaged in a bona fide investigation that investigation ceased when Mr. Allen indicated that he wished to chat with someone over the age of eighteen.
[19] Mr. Allen submits that at this point D.C. Wohlert was not engaged in a bona fide investigation and was not acting on reasonable suspicion when he provided Mr. Allen with the opportunity to commit an offence. Mr. Allen submits that, on a balance of probabilities, D.C. Wohlert offered the opportunity to commit an offence without having the requisite grounds.
[20] Mr. Allen submits that the application ought to be allowed and a stay of proceedings ought to be granted.
Position of the Respondent Crown
[21] The Crown makes three principal submissions:
(a) The Crown submits that there was nothing random at all about D.C. Wohlert’s response to an ad which Mr. Allen placed in the Casual Encounters section of Craigslist. Mr. Allen advised that he was looking for sex with a young woman of slight build.
(b) The Crown submits that it was not necessary to “reinvent the wheel”. D.C. Wohlert was entitled to rely on previous findings of other courts where Craigslist has the potential to harbour child lurers in the Casual Encounters section.
(c) The Crown submits that D.C. Wohlert was entitled to develop his suspicion over the course of the conversation regardless of Mr. Allen’s initial expression of preference as to whom he wished to speak.
[22] It is submitted that police can enter into an area where they have a reasonable suspicion that criminal activity is taking place regardless of whether the accused himself is suspected of criminal activity. It is submitted that there is nothing random about this practice. This is not a case of random virtue testing. The Crown submits that there was reasonable suspicion that criminal activity was taking place involving Mr. Allen and that the conduct of D.C. Wohlert did not amount to entrapment. The Crown submits that Mr. Allen has not made out entrapment and that he is not entitled to a stay of proceedings in this case.
ANALYSIS & FINDINGS
Entrapment
[23] Mr. Allen seeks a remedy against the state for its alleged participation in unfair law enforcement practices. In this regard, he cites the two prong test by which a trial court can identify the existence of entrapment as set out in R.v. Mack, 1988 CanLII 24 (SCC), [1988] S.C.J. No. 91 at para.155:
(a) that the authorities did not have a reasonable suspicion when they provided an accused with an opportunity to commit the crime alleged, or they were not acting pursuant to a bona fide inquiry; or,
(b) that the authorities, although acting on a reasonable suspicion, and pursuant to a bona fide inquiry, went beyond providing the accused with an opportunity to commit the offence and instead induced the commission of that offence.
[24] The court in Mack held that the branches of the test operate independently of one another. Mr. Allen need only demonstrate on a balance of probabilities that one or the other branch of the test is satisfied.
[25] Mr. Allen seeks a stay on the first branch of the test, where he submits that there was no reasonable suspicion upon which D.C. Wohlert could properly found the “sting” operation used to entrap him.
[26] Mr. Allen relies on the decision in Mack, and the cases that follow, that random virtue testing is not an acceptable form of investigation.
[27] Mr. Allen submits that random virtue testing occurs where the accused is given the opportunity to commit a crime, without the existence of a reasonable suspicion that he was already engaged in criminal activity. See R.v. Mack, supra, R.v. Cahill, (B.C.C.A), 1992 CanLII 2129 (BC CA), [1992] B.C.J. No. 793 at p. 10. It is submitted that D.C. Wohlert in the case at bar did not meet this threshold and on the balance of probabilities, the existence of entrapment has been made out.
[28] The thrust of Mr. Allen’s position is that the totality of D.C. Wohlert’s evidence does not bear out the objective component of reasonable suspicion either by way of his experience concerning Craigslist or any ongoing criminal behaviour at that site.
[29] Further, it is submitted that if there was any original bona fide reasonable suspicion, that initial reasonable suspicion was rebuffed when Mr. Allen told D.C. Wohlert that he was looking to speak to an older person.
[30] In summary, Mr. Allen submits that D.C. Wohlert failed the Mack test as he had no objective reasonable suspicion that Mr. Allen was engaged in the criminal activity that D.C. Wohlert was investigating. Rather, D.C. Wohlert was involved in impermissible random virtue testing. Lastly, if reasonable suspicion initially existed, it no longer existed when the police were rebuffed by Mr. Allen and any bona fide investigation ended at that point.
[31] For the following reasons, I reject the submission of Mr. Allen and find that he has failed to establish on the balance of probabilities that he was the subject of entrapment by D.C. Wohlert.
[32] The context of entrapment in internet luring cases was considered by the Ontario Court of Appeal regarding s. 172.1 of the Criminal Code of Canada in R.v. Alicandro (2009), 2009 ONCA 133, 95 O.R. (3d) 173 at paras. 36 & 38:
- The language of s. 172.1 leave no doubt that it was enacted to protect children against the very specific danger posed by certain kinds of communications via computer systems. The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults. One author has described the danger in these terms:
For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a cast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet’s one-too-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as to the communicator’s true identity. Too often, these nets ensnare, as they’re designed to, the most vulnerable members of our community – children and youth.
Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are the front-runners in the use of new technologies and in the exploration of social life within virtual settings.
- The appellant’s interpretation of s. 172.1(1)(c) would significantly undermine the object of that statutory provision in a second way. If the appellant’s interpretation is accepted, communications between an accused and a police officer who an accused believes to be a young person could not result in a conviction under s. 172.1(1)(c). A review of the case law demonstrates that police officers posing as young persons is almost the exclusive manner in which this provision can be enforced. This is hardly surprising. Children cannot be expected to police the Internet. The state is charged with the responsibility of protecting its children. That responsibility requires not only that the appropriate laws be passed, but that those law be enforced. The appellant’s interpretation would render the section close to a dead letter.
See R.v. Ghotra, 2016 ONSC 5675, [2016] O.J. No. 4761 SCJ at paras. 46 and 47.
[33] In R.v. Argent, [2014] O.J. No. 3401 Parayeski J. considered the luring provisions of the Criminal Code, the internet and entrapment at para. 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 the 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 areas. 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.
[34] Within the context of child luring offence and related offences set out in the Criminal Code, I agree that the internet is very much a bad neighbourhood. The internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. In this neighbourhood, the opportunities are vast to exploit children and often, that is exactly what happens.
[35] The Supreme Court of Canada in R.v. Barnes, 1991 CanLII 84 (SCC), [1991] S.C.J. No. 17 (SCC) at para 24 has long recognised that police can enter into an area where they have a reasonable suspicion that criminal activity is taking place regardless of whether the accused himself is suspected of criminal activity. There is nothing random about this practice.
[36] The developments in technology since 1991 expand the context in which we must think of ‘location’. The internet is very much a place where all sorts of activity, including criminal, goes on, and the Casual Encounters section of Craigslist is one of those anonymous, low visibility places analogous to the physical location referred to in Barnes. The advent of the internet luring provisions of the Criminal Code has changed the landscape of our thinking about place.
[37] Given that the officer knew that the site would not accept ads for underage sex, that he knew ‘young’ is often a code word for underage, that the poster was seeking a small build, and that the site itself is used by predators, I find D.C. Wohlert had abundant objectively reasonable grounds to suspect that the accused might well be a predator.
[38] I find D.C. Wohlert did not sexualize the conversation; Mr. Allen did that by the ad he posted. D.C. Wohlert was entitled to go into that location and pose as a 14 year old based on what he knew. When Mr. Allen pursued the conversations that he made sexual with a child he thinks is 14, the officer is well-supported in his suspicion. This suspicion is not static and can be solidified by the progress of the conversation.
[39] It was perfectly open to Mr. Allen to either leave or talk to Jenny about homework but he did neither. I find he pursued the sexual grooming of what he thought was a child over time, unprompted and in both overt and subtle ways.
[40] D.C. Wohlert testified that the Casual Encounters of Craigslist is used to facilitate sexual hookups and requires the poster to advertise for 18 year olds and up. He personally tried to post an ad looking for underage sex, and it was rejected. I find that D.C. Wohlert had reasonable suspicions raised by an ad looking to “fuck a young woman” with a small stature could be a person looking to exploit a child.
[41] D.C. Wohlert testified that Mr. Allen was not reluctant to continue the chat with him even after D.C. Wohlert had told Mr. Allen that Jenny was 14. Jenny never initiated the sexual part of the conversation. That was always done by Mr. Allen. Nor did Jenny respond in kind to sexual flattery. Mr. Allen did not raise fantasy scenarios.
[42] Further, it is noteworthy that Mr. Allen posted the ad on Casual Encounters, Craigslist in the first place. He was the one who was looking for sex with a young woman. The police did not post the ad. Rather it was Mr. Allen who had posted the ad and it was Mr. Allen who enthusiastically pursued his chats with Jenny. I find the conduct of D.C. Wohlert did not constitute random virtue testing. He was responding to Mr. Allen’s ad for a young woman with a small build. As in Argent at para. 13, based on the officer who testified in that case, people who advertise on Craigslist for partners as young as 18 are sometimes actually looking for younger partners. The age 18 is the minimum age which Craigslist will publish.
[43] Further, I find the Casual Encounters site on Craigslist can be a specific place. In R.v. Chiang, [2012] B.C.J. No. 350 (BCCA), the British Columbia Court of Appeal found that the erotic services section of Craigslist was analogous to a geographic area referred to in Barnes.
[44] In R.v. Levigne 2010 SCC 25, [2010] S.C.J. No. 25, the Supreme Court of Canada at paras. 24 and 25 commented on s. 172.1 of the Criminal Code and its legislative intent:
Section 172.1 was adopted by Parliament to identify and apprehend predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents.
In structuring the provision as it did, Parliament recognized that the anonymity of an assumed online profile acts as both a shield for the predator and a sword for the police. As a shield, because it permits predators to mask their true identities as they pursue their nefarious intentions; as a sword (or, perhaps more accurately, as a barbed weapon of law enforcement), because it permits investigators, posing as children, to cast their lines in Internet chat rooms, where lurking predators can be expected to take the bait – as the appellant did here.
[45] The trial decision in Argent was considered by the Ontario Court of Appeal see R.v. Argent, 2016 ONCA 129, [2016] O.J. No. 3273.
[46] The appellant submitted on appeal that the officer did not have reasonable grounds from the outset to suspect that there was criminal activity going on. In Argent, the ad specified a woman of at least 18 years of age and this, on its own, did not provide a sufficient basis for suspicion. Further, the appellant submitted that it was the officer who sexualized the communication by referring to the “bud” in the first email. This response, it was argued, manufactured the criminal activity and induced the crime.
[47] The Court of Appeal did not agree with this submission and went on at paras. 11, 12 and 13 to hold the following:
The police had reasonable grounds to suspect criminal activity when they viewed the ad as posted and as the conversation with the appellant unfolded.
The ad included a photo of the appellant’s penis and requested a smoking partner “and more”. The police’s consideration of the use of the age 18 as a flag for potential child abusers was reasonable. This was the lowest age that could be posted.
We do not agree that the officer manufactured the criminal activity by sexualizing the first communication. The photos had already done that. The communications from the officer made it clear from the outset that Carlee was 14, had just graduated from grade 8, was inexperienced sexually, and was under the watch of her mother. The questions posed by the officer were open-ended. It was the appellant who pursued the discussion of sexual activity. These facts support the officer’s suspicion that criminal activity was underway.
[48] I find the factual context described by the Court of Appeal and its findings in Argent to be disturbingly similar and applicable to the factual context in the case at bar.
[49] I find that in the case at bar, D.C. Wohlert had reasonable grounds to suspect criminal activity when he viewed the ad posted by Mr. Allen and as the conversation with Mr. Allen unfolded. D.C. Wohlert’s reasonable suspicion that Mr. Allen was engaged in criminal activity was borne out as their chats continued to evolve over a number of months (see Chat Log Book Exhibit 10).
[50] I find that D.C. Wohlert was acting on a reasonable suspicion that Mr. Allen was engaged in criminal activity when the chats started.
[51] I find that D.C. Wohlert did not create an opportunity for Mr. Allen to commit internet luring by giving Jenny’s age as 14 in these circumstances. It was Mr. Allen who took the lead in directing the conversation to sexual matters even after D.C. Wohlert responded to the ad posing as “Jenny”, a 14 year old girl.
[52] I am not persuaded that D.C. Wohlert probably created an opportunity to commit internet luring by giving his age as 14 years old.
[53] In Ghotra, Durno, J. held that it was not essential that the reasonable suspicion existed at the start of the communication see R.v. Ghotra, supra at para. 55.
[54] In Ghotra, Durno, J. considered whether the officer was involved in a bona fide inquiry or random virtue testing when the chat started. In Ghotra, the criminal activity that was reasonably suspected occurred in a chat room. Durno, J. at paras. 57, 58 and 59 held:
I find that the criminal activity was reasonable suspected in the chat room. As Barnes holds, where officers have a reasonable suspicion that the physical location with which the person is associated is a place where the particular criminal activity is likely occurring, they are not engaged in random virtue testing: at para. 24. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permitted within the scope of a bona fide inquiry: at para. 23.
The internet chat room was a place where internet luring was likely occurring. I reach that conclusion for the following reasons. First in Levigne, the Supreme Court found that s. 172.1 was enacted to identify and apprehend predatory adults, who generally for illicit sexual purposes, troll the internet to attract and entice vulnerable children and adolescents: at para. 24. By structuring the legislation as it did, Parliament recognized the anonymity of the assumed online profile acts as a shield protecting the predator’s true identity “as they pursue their nefarious intentions” and a sword or barbed weapon of law enforcement because it permits officers, posing as children, to cast their liens (sic) in internet chat rooms, “where lurking predators can be expected to take the bait:” at para 35. [emphasis added] The Supreme Court of Canada has provided the basis upon which the officer was engaged in a bona fide inquiry.
Second, as noted earlier, the police must be permitted leeway in their investigations depending on the type of offence being investigated. The nature of the internet makes that leeway essential.
[55] In the case at bar, the location of the criminal activity was on the Casual Encounters site for Craigslist with Mr. Allen using his computer in Bradford to access that site on the internet. Mr. Allen submitted that if there was a bona fide inquiry on behalf of D.C. Wohlert, that initial inquiry ended when Mr. Allen rebuffed. It is submitted that Mr. Allen was looking to communicate with someone over the age of 18 and at times did not respond. D.C. Wohlert continued the communication because he had “a duty” to determine whether it was a child exploitation case. I find D.C. Wohlert’s reasonable suspicion is not a static one. D.C. Wohlert had reasonable grounds to suspect criminal activity when Mr. Allen’s ad was posted and as the conversation with Mr. Allen unfolded (see R.v. Argent, supra at paras. 11, 12 and 13, R.v. Ghotra, supra at paras. 57, 58 and 59).
Stay of Proceedings
[56] While the conduct of the police need not go as far as shocking the conscience of the community, it must go beyond permissible limits in order to warrant a stay of charges of which Mr. Allen is guilty. The permissible limits have been set out by the Supreme Court in Levigne. The police, in order to ferret out those who would prey on children, are permitted to “cast their lines in Internet chat rooms, where the lurking predators can be expected to take the bait” as Mr. Allen did. See R.v. Levigne, supra at para 25 and R.v. Ghotra, supra at para 58.
[57] I am not satisfied that this is one of the clearest cases where Mr. Allen’s convictions should be stayed based on entrapment.
DISPOSITION
[58] Accordingly, for these reasons, I find there was no entrapment. The application for a stay on the basis of entrapment is dismissed.
G.P. DiTomaso, J.
Released: October 25, 2017