WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
NEWMARKET COURT FILE NO.: CR-17-2516-00
DATE: 20191128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.D.R.
Defendant
Gemma Sang, for the Crown
Richard Litkowski, for the Defendant
HEARD: November 4, 2019
REASONS FOR DECISION
DE SA J.:
Overview
[1] The Applicant, C.D.R., was charged as part of a sting operation known as Project Raphael. The objective of Project Raphael was to target those involved in obtaining sexual services from underage prostitutes through Backpage.com.
[2] The Applicant takes the position that the police conduct, generally in creating and carrying out Project Raphael and, specifically, in their conduct towards him, constituted entrapment and, accordingly, a stay of proceedings is warranted.
[3] After hearing argument, I reserved my decision. These are my reasons.
Summary of Facts
Background of the Project Rafael Investigation
[4] Detective S.T. (“Det. Sgt. S.T.”) was the architect and designer of Project Rafael. Det. Sgt. S.T. has been an officer with York Regional Police since January 2002. In 2005, he joined the drugs and vice enforcement unit.
[5] Det. Sgt. S.T.’s primary experience over the years was derived from investigating and managing investigations involving the trafficking of young girls and young women. He has interviewed hundreds of girls involved in the sex trade. Det. Sgt. S.T. also has attended numerous conferences and worked with various organizations throughout York Region to obtain and share information relating to juveniles at risk.
[6] According to Det. Sgt. S.T., juvenile prostitution was a serious problem in York Region in 2017. Throughout his tenure with vice, it became evident to him that a substantial number of the girls involved in prostitution were under the age of 18. Many of the girls who were over 18 had entered into the sex trade when they were children. In Det. Sgt. S.T.’s experience, the younger girls had always been exploited in some way. It could be poverty, sex for survival, or exploitation by pimps.
[7] Most of the prostitution that was occurring in York Region was being conducted online. One of the largest websites known for juvenile prostitution was Backpage (“Backpage”). Virtually all of the online investigations involving juveniles had been linked to Backpage. Det. Sgt. S.T. testified that there was so much adult and juvenile prostitution occurring on Backpage that he could devote his entire team to Backpage, and there would still be insufficient resources to address the problem.
[8] In the past, the police strategy had always been to focus on the pimps and rescuing the girls. According to Det. Sgt. S.T., the challenge with juvenile prostitution is that the crimes are being committed inside hotel rooms or inside homes and the juveniles are not reporting the offences to police. In many cases, even identified victims were not cooperating with police. They often did not see themselves as victims.
[9] The police were also not doing anything to stop the demand for child sex. And to be successful in combating the commercial sale of women and children, Det. Sgt. S.T. realized that they had to focus on the demand side as well. The police had to focus on the men who were driving the industry.
[10] The objective of Project Raphael (the “Project”) was to target those seeking to obtain sexual services from underage prostitutes. The Project involved police posting ads offering sexual services on Backpage. Once a caller would contact the ad, an undercover officer would hold himself out to be an underage female that was offering sexual services. If a caller agreed to purchase sexual services, they would arrange to meet at a designated location. If the caller showed up for sexual services, they would be arrested.
[11] The ads posted were created to attract individuals that were looking to purchase sexual services from underage women. Phrases like, “tight”, “young”, “new” or “fresh” were used to suggest a certain level of inexperience and youth. The age of 18 was listed as this was the minimum advertised age permitted by Backpage. The website administrator would remove listings that expressly involved the sale of sexual services by underage girls.
[12] Det. Sgt. S.T. confirmed that in the course of the text conversations with the men looking to purchase sexual services, the undercover (“UC”) would often drop tips or hints to suggest the female offering services was underage. They would make clear the services that were offered. and then bring up the issue of age at the earliest stage of the conversation as possible. The intention was to introduce the age and services offered early on in the exchange so that the person would know and make all their decisions based on that information. However, the timing was always driven by the context and flow of the conversation itself. It would have to seem natural. Det. Sgt. S.T. acknowledged that it was preferable, or best practice, to introduce the age at the earliest opportunity.
[13] Initially, in the earlier stages of the Project, police portrayed the age of the underage girls, through these conversations, as 16. However, from a crime prevention point, they wanted to arrest the men that were looking to exploit the most vulnerable. The age was dropped to 15, and then ultimately to 14.
[14] While the ads were targeting individuals looking for underage girls, Det. Sgt. S.T. acknowledged that not everyone contacting the ads was looking for sex from underage girls. There were men who were looking strictly for adult females (18 or over). However, there were men that were not specifically looking but were open to engaging in sex with underage females when the opportunity presented itself. There were those who contacted the ad specifically looking to have sex with an underage female.
The Posted Backpage Advertisement
[15] On March 27, 2017 at 2:57 p.m., Detective Constable MC (“DC MC”) posted an ad as part of the Project. The ad included 3 photographs of a female officer posing as an underage prostitute. Her face is not revealed in the pictures. The female officer pictured in the ad was in fact in her 30s at the time the photographs were taken. In one of the pictures, she is wearing a t-shirt with the words “K. High” (a local high school) printed on it.
[16] In addition to the photographs, the ad included the following text:
Back only for a few days – Tight Brand NEW girl in MARKHAM Richmond hill - Waiting for you – 18
Hi guys my name is Michelle and I’m a girl who is sexy and YOUNG with a tight body looking for fun. I’m only here for a few days just visiting from out of town.
I also have a YOUNG FRIEND if you interested too.
Highway 7 and Leslie area :)
In calls only. Don’t miss this you’ll be sorry!!
80 hh 140fh
TEXT ONLY
Poster’s age: 18
[17] The reference in the ad to “80 hh” and “140 fh” indicated that it would cost $80 for one half hour of sexual services, and $140 for a full hour.
The Conversation with the Accused (C.D.R.)
[18] On March 27, 2017, at 16:01, C.D.R. contacted DC MC’s posted ad. DC MC, who was holding himself out to be Michelle, responded. The text conversation went as follows:
16:01 - Accused: Hey hun are you available
16:02 - UC: Yep
16:02 - Accused: Where are you located and what are your rates hun
16:14 - UC: Leslie and 7. 80 hh for protected sex and bj.
16:15 - Accused: Bbbj?
16:16 - UC: Yep.
16:16 - Accused: You have a Friend you mentioned in your ad
16:17 - UC: Yep Jamie she is on BP too. Blonde
16:17 - UC: 150hh
16:21 - Accused: For both?
16:22 - UC: Yep
16:22 - Accused: Can’t find her ad
16:24 - UC: 6474956233
16:26 - Accused: OK yes I want to see you girls.
16:26 - Accused: When is best time to come
[19] DC MC testified that Bbbj meant “bare back blow job” which means oral sex without a condom. He also testified that his texts indicated it would be $150 for a half hour for both girls for oral sex without a condom and protected sex.
[20] After C.D.R. confirmed he wanted to see the girls, the conversation continued as follows:
16:28 - UC: Just so you know we are under 18. Some guys freak out and I don’t want problems. We are small and it’s obvious.
16:29 - Accused: I’m cool with it. I’ll be gentle as long as you’re sexy and willing.
16:30 - Accused: I’ll start making my way to you now. Where are you staying?
16:31 - UC: We are both willing. We’re 14 but will both be turning 15 this year. That cool? We are buddies and very flexable??
16:32 - Accused: Should be lots of fun
16:32 - Accused: Are those real photos from the ads. Those girls look a bit older.
16:36 - UC: they are both us.
16:37- Accused: Ok. I’m going to leave now.
16:37 - Accused: Where are you located.
16:39 - UC: Go to [north-end Toronto] and msg me. I tell you where to go then.
16:39 - Accused: ok. It’s a hotel?
16:40 - UC: Yeah hotel. Ok just so we know you want sex with both of us and a blow job? I don’t need any surprises.
16:41 - Accused: Yes sex with both and bbbj from both
16:42 - UC: ok that’s fine thanks.
[21] DC MC testified that he had tried to make it clear in his communications that Michelle and Jamie were underage. When cross-examined on why he did not reference Michelle and Jamie’s purported ages earlier on in the conversation (it was only referenced 26 minutes in), DC MC testified that the conversation did not reasonably flow that way.
[22] DC MC acknowledged that it would be preferable to reveal the purported age as soon as possible to avoid any unnecessary conversation. He also acknowledged that, if he tried, he likely could have referenced the age earlier on in the conversation. However, he maintained that each conversation had its own natural flow. It was not always possible to reveal the age at the outset.
[23] The conversation with C.D.R. continued as follows:
16:42 - Accused: Can you girls dress up for me
16:44 - UC: Like what
16:44 - Accused: Do you have a body suit
16:44 - UC: No
16:44 - Accused: Leggings?
16:44 - UC: I’m 14 I got regular clothed and my bra and underwear.
16:45 - Accused. Ok. Dress in something cute and sexy
16:45 - Accused: Same with Jamie
16:46 - UC: OK will do
16:46 - Accused: I like thongs if you have
16:47 - UC: I do.
16:47 - Accused: Perfect
16:47 - Accused: Ok so I’ll text when I’m there
16:49 - UC: Kk
[24] At 17:49, DC MC texted C.D.R. again to determine his whereabouts. The conversation continued:
17:49 - UC: You coming
17:50 - Accused: Yes just in some traffic
17:50 - Accused: I’m on my way
17:51 - UC: How long so I can get ready
17:51 - Accused: 20
17:51 - UC: Ok
18:13 - Accused: Which hotel
18:14 - UC: [north-end Toronto] area
18:14 - Accused: Yeah
18:14 - UC: [north-end Toronto]
18:14 - UC: Msg when in the lot and I’ll give you room number
18:14 - Accused: Ok be there shortly
18:15 - UC: Ok
18:15 - UC: Can’t wait
18:16 - Accused: Both you girls ready looking cute
18:16 - UC: I would say we look hot
18:16 - UC:
18:23 - Accused: Good I’m here
18:23 - UC: Ok come up to 440
[25] Officers were waiting in Room 440. At 18:27, C.D.R. knocked on the door. The police opened the door and ushered C.D.R. into the hotel room. He was arrested by P.C. A.N..
[26] P.C. A.N. conducted a search incident to arrest and seized a Samsung S5 cell phone as well as a $100 bill and a $50 bill from C.D.R.’s coat pockets. The phone was tested and confirmed to be the same phone used to communicate with the UC.
Position of the Applicant
[27] The Applicant (C.D.R.) takes the position that the police conduct in this case constituted entrapment and, accordingly, a stay of proceedings is warranted.
[28] More specifically, the Applicant takes the position that the conduct amounts to entrapment because:
(a) the police provided an opportunity to the Applicant to commit an offence without reasonable suspicion that he was engaged in the activity under investigation;
(b) the police were not involved in a bona fide investigation so as to justify them providing the Applicant with the opportunity to commit the offence;
(c) Even if the police were involved in a bona fide investigation, the police improperly induced the Applicant into committing an offence he was otherwise not going to commit.
Analysis
Random Virtue Testing: Was the Police Technique part of a Bona Fide investigation?
[29] Entrapment is a species of the abuse of process doctrine.[^1] The Supreme Court in R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, at para.79, identified two primary concerns in the entrapment context, namely 1) random virtue testing; and 2) improper inducement. At para. 121 of the decision, these two branches of the rule were explained by the Supreme Court in the following way:
To summarize then, the police must not, and it is entrapment to do so, offer people opportunities to commit crime unless they have a reasonable suspicion that such people are already engaged in criminal activity or, unless such an offer is made in the course of a bona fide investigation. [Emphasis added.]
...If the accused is not alleging this form of entrapment the central question in a particular case will be: have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?
[30] Though the Supreme Court articulated the test to have two branches, the concern identified by the Court is unified at its core. In the entrapment context, “the court’s sense of justice is offended by the spectacle of an accused being convicted of an offence which is the work of the state.” Mack, supra, at para.81.
[31] “The defence of entrapment is based on the notion that limits should be imposed on ability of the police to participate in the commission of an offence. As a general rule, it is expected in our society that the police will direct their attention towards uncovering criminal activity that occurs without their involvement.” R. v. Barnes,1991 84 (SCC), [1991] 1 S.C.R. 449., at para. 14.
[32] While it is acceptable for the police to employ trickery and various other investigative techniques to infiltrate the ongoing criminal activities of an offender, they are not to breed offenders by their actions or manufacture crimes for the purposes of prosecution. As the Supreme Court explained in Mack at para. 81:
...
...In the entrapment context, the court's sense of justice is offended by the spectacle of an accused's being convicted of an offence which is the work of the state (Amato, supra, at p. 447). The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court's disapproval of the state's conduct. The issuance of the stay obviously benefits the accused but the Court is primarily concerned with a larger issue: the maintenance of public confidence in the legal and judicial process. [Emphasis added.]
In this way, the benefit to the accused is really a derivative one. We should affirm the decision of Estey J. in Amato, supra, that the basis upon which entrapment is recognized lies in the need to preserve the purity of administration of justice. [Emphasis in original.]
[33] The only remedy for a finding of entrapment is a stay of proceedings. Given the drastic nature of the remedy (a stay of proceedings), a finding of entrapment is quite properly reserved for the “clearest of cases”.
[34] In this case, the Applicant argues that the absence of “reasonable suspicion” creates a serious problem with the police investigation. Nothing in the preceding investigation suggests the Applicant was looking for an underage girl. The Backpage ad itself listed “Michelle” to be 18 years old.
[35] At the time DC MC invited the Applicant to engage in sexual activity with an “underage girl”, he had no basis to suspect the Applicant was interested in underage females.
[36] The Applicant argues that the facts make clear that DC MC was randomly testing the virtue of the Applicant by providing him an opportunity to commit the offence. The police approach runs afoul of the standards set out in Mack.
[37] Random virtue testing is itself abhorrent, and constitutes entrapment, because it has the unnecessary risk of attracting innocent and otherwise law-abiding individuals into the commission of a criminal offence. The Applicant relies on the statements made by the Supreme Court in Mack at paras. 112 and 133:
…the police are entitled to provide opportunities for the commission of offences where they have reasonable suspicion to believe that the individuals in question are already engaged in criminal conduct. The absence of a reasonable suspicion may establish a defence of entrapment for two reasons: Firstly, it may indicate the police are engaged in random virtue-testing or, worse, are carrying on in that way for dubious motives unrelated to the investigation and repression of crimes and are as such “mala fides”. [Emphasis added.]
The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis. [Emphasis added.]
[38] The Crown takes the position that the police investigation was a bona fide investigation, and accordingly, the police were not required to have a “reasonable suspicion” at the time they provided the Applicant with the opportunity to commit the offence.
[39] The Crown argues that Backpage was well known for juvenile prostitution, and accordingly, the police were entitled to try and address the prevalence of this crime on Backpage by providing offers to commit the offence to random targets. The Supreme Court explained the bona fide investigation exception in Mack at para. 113:
[I]n certain situations the police may not know the identity of specific individuals, but they do know certain other facts, such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring. In those cases it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion. This latter situation, however, is only justified if the police acted in the course of a bona fide investigation and are not engaged in random virtue‑testing.
[40] In R. v. Barnes, 1991 84 (SCC), [1991] 1 S.C.R. 449,), the Supreme Court elaborated on the exception at paras. 23 and 27:
…The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. 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 permissible within the scope of a bona fide inquiry.
In this case, the accused was approached by the officer when he was walking near the Granville Mall. The notion of being "associated" with a particular area for these purposes does not require more than being present in the area. As a result, the accused was associated with a location where it was reasonably believed that drug-related crimes were occurring. The officer's conduct was therefore justified under the first branch of the test for entrapment set out in Mack.
[41] The Supreme Court also provided a useful illustration of the distinction between random virtue testing and a bona fide investigation in Mack at paras. 114-116. As the Court explained at para. 115:
To illustrate conduct which is suggestive of random virtue‑testing and which has the serious unnecessary risk of attracting innocent and otherwise law‑abiding individuals into the commission of a criminal offence, consider the situation where a police officer decides he wants to increase his performance in court. To this end he plants a wallet with money in an obvious location in a park, and ensures that the wallet contains full identification of the owner. Someone may walk up, take the money and throw away the wallet and the identification; he would then arrest and charge that person. In my opinion, whether or not we are willing to say the average person would steal the money, this policeman has acted without any grounds, and his conduct carries the unnecessary risk that otherwise law‑abiding people will commit a criminal offence. On the other hand, consider the situation where the police have received many complaints with respect to a theft of handbags in, for example, a bus terminal. If in the course of a bona fide inquiry, the police plant a handbag in an obvious location in the bus terminal and then arrest and charge the person who took the bag, I am of the opinion that this would not be a situation of entrapment.
[42] The Applicant takes the position that the police approach does not fall within the bona fide investigation exception. Reasonable suspicion in a particular geographic location only arises where there is a credible basis to believe that such activity is occurring within a defined area. The Applicant argues that Backpage cannot be equated to a specific physical location. To do so would permit the police investigation to be overly expansive. See R. v. Mills, 2019 SCC 22, 2019 CSC 22. The Applicant argues that there must be evidence that the particular crime is occurring in a “location” that is defined with sufficient precision.
[43] Even if Backpage can be equated to a specific location, the Applicant argues that the requirement for a reasonable suspicion in relation to that location must still be met. The police are required to meet the reasonable suspicion standard under the first branch, regardless of how difficult it is to carry out the investigations in relation to a specific offence.
[44] According to the Applicant, the police have not demonstrated that the location was an area known for the criminal activity at issue. While it may be reasonable to suspect that juvenile prostitutes were selling services on Backpage, it was not reasonable to suspect that buyers were using Backpage to intentionally seek out and purchase services from juvenile prostitutes. According to the Applicant, there is no evidence indicating buyers knew that underage prostitution was prevalent on Backpage at all.
[45] I do not accept the Applicant’s submission that there is no evidence that buyers were using Backpage to seek out and purchase services from juvenile prostitutes. The evidence tendered by the Crown makes clear that Backpage was well known for underage prostitution. Virtually all of the investigations into underage prostitution in York Region were linked by police to the website. The prevalence of underage prostitution on Backpage makes clear that individuals were actively purchasing sex from underage females through the website. Police specifically commenced the Project with a view to dealing with this problem.
[46] I also disagree that a “location” is restricted to a geographical location. As explained by Det. Sgt. S.T., the purchase and sale of sexual services moved from the street to the Internet and virtual sites like Backpage. Females would often offer services in multiple regional locations and would frequently meet buyers at locations of their choosing.
[47] Law enforcement is entitled to adapt to changes in the criminal landscape. As explained by the Court of Appeal in R. v. Ahmad, 2018 ONCA 534, 141 O.R. (3d) 241, at para. 57 in the context of drug investigations:
Today’s drug dealers conduct their business in both physical and virtual spaces. Limiting bona fide police inquiries to a specific physical location would unduly restrict their ability to combat dial-a-dope schemes in a manner inconsistent with the entrapment doctrine. As the British Columbia Court of Appeal observed in Swan, at para. 41:
Where the facts of this case differ significantly from Barnes, however, is in the nature of the technology employed by those in the dial-a-dope business, where the use of cell phones makes it difficult, if not impossible, to impose a meaningful territorial restriction on the breadth of the investigation. An analysis which would require the police to operate within a narrow geographical range analogous to the six block range in Barnes would unduly hinder them in responding to a technology which is inherently mobile. As stated by Chief Justice Lamer at para. 16 of Mack:
If the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police; as crimes become more sophisticated so too must the methods employed to detect their commission. [Emphasis added.]
[48] Contrary to the Applicant’s submission, Mack makes clear that the courts are required to consider the realities facing police in assessing the reasonableness of the police action. This is true in assessments under both the first and second branch. In fact, the Supreme Court specifically recognized that random virtue testing in the context of a bona fide investigation is justified because of the importance of dealing with areas known for crime that would otherwise be difficult to investigate. As explained at paras. 18 and 113 of Mack:
[18] Obviously the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law. This has long been recognized by the common law (see R. Donnelly, "Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs" (1951), 60 Yale L.J. 1091, at pp. 1091‑92). Laskin C.J., in Kirzner, [citation removed], noted at p. 493 that with respect to consensual crimes, the police employ a number of people and techniques:
They may, for example, use a spy, either a policeman or another person, to obtain information about a consensual offence by infiltration; they may make arrangements with informers who may be parties to offences on which they report to the police to enable the other parties to be apprehended; or the police may use decoys or themselves act under cover to provide others with the opportunity to commit a consensual offence or to encourage its commission. Going one step farther, the police may use members of their force or other persons to instigate the commission of an offence, planning and designing it ab initio to ensnare others.
…While, in the course of such an operation, affording an opportunity in a random way to persons might unfortunately result in attracting into committing a crime someone who would not otherwise have had any involvement in criminal conduct, it is inevitable if we are to afford our police the means of coping with organized crime such as the drug trade and certain forms of prostitution to name but those two. [Emphasis added.]
[49] This is not to say that the end always justifies the means. The Supreme Court explained that the court’s entrapment jurisdiction arises from the need to maintain this balance between our notions of fairness and justice and the need for the protection from crime. The doctrine is a contextual assessment and necessarily considers all the circumstances. When a stay is granted, the court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution is the manifestation of the court's disapproval of the state's conduct.
[50] In some cases, the particular investigative approach taken by police will not meet our standards for acceptable police conduct (random-virtue testing), and in others, it will be the specific conduct in relation to the accused that will be deemed to exceed society’s tolerable limits for police intervention (improper inducement). As explained in Mack at paras. 80 and 81:
…There will be differing views as to the appropriate balance between the concepts of fairness and justice and the need for protection from crime but it is my opinion that it is universally recognized that some balance is absolutely essential to our conception of civilized society. In deciding where the balance lies in any given case it is necessary to recall the key elements of our model of fairness and justice, as this is the only manner in which we can judge the legitimacy of a particular law enforcement technique. [Emphasis added.]
It must be stressed, however, that the central issue is not the power of a court to discipline police or prosecutorial conduct but, as stated by Estey J. in Amato, [citation removed], at p. 461: "the avoidance of the improper invocation by the state of the judicial process and its powers". [Underline in original; italics added.]]
[51] In my view, police had a reasonable basis to believe that individuals were routinely involved in the purchase of sexual services from juvenile prostitutes on Backpage.com. They engaged in an investigation to target this type of criminal activity.
[52] The evidence tendered by the Crown indicates that the demand for juvenile prostitutes was driven not only by those who were specifically looking for underage girls, but also by those who were open and willing to obtain sexual services from juvenile prostitutes. The Project looked to target both of these groups.
[53] In the circumstances, in my view, this was not a case of random-virtue testing unrelated to a legitimate police initiative. I agree with the Crown that this was a bona fide investigation, and in this context, the police were entitled to randomly offer individuals the opportunity to commit crimes of the sort known to be occurring on the website, Backpage.com (the opportunity to purchase sexual services from underage girls).
2) Improper Inducement: Have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?
[54] The Applicant also argues that the police in their particular interaction have gone further than merely providing an opportunity and employed tactics designed to induce the Applicant into the commission of an offence.
[55] For example, the police posted the ad listing the age of Michelle as 18 years old. DC MC represented that Michelle was the person pictured in the Backpage ad. The Applicant points out that the female pictured in the ad is much older than 14 years of age.
[56] The Applicant also contends that nothing in the original texts by the Applicant would indicate he was looking for an underage girl. The Applicant contacted the ad at 16:01. Nothing in the discussions proceeding the communication at 16:28 would suggest he was interested in an underage girl at all. All communications related to sexual services from a girl who was of age.
[57] The Applicant argues that it is improper for police to induce someone who may be involved in one type of criminal activity (commodification of sexual activity in relation to adults) into the commission of a far more serious offence (commodification of sexual activity with underage girls).
[58] The Applicant points out the statements of the Supreme Court in Mack at para. 116, where the Court explains, “…[T]he sole fact that a person is suspected of being frequently in possession of marijuana does not alone justify the police providing him or her with the opportunity to commit a much more serious offence, such as importing narcotics”.
[59] In Mack, to determine whether the police have employed means which go further than providing an opportunity, the Supreme Court explained at para. 133, that it is useful to consider any or all of the following factors:
− the type of crime being investigated and the availability of other techniques for the police detection of its commission;
− whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
− the persistence and number of attempts made by the police before the accused agreed to committing the offence;
− the type of inducement used by the police including: deceit, fraud, trickery or reward;
− the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
− whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
− whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
− the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
− the existence of any threats, implied or express, made to the accused by the police or their agents;
− whether the police conduct is directed at undermining other constitutional values.
[60] In this case, police referenced the age of 18 as it was the youngest age possible to use in a Backpage posting. Police also used phrases like, “tight”, “young”, “new” or “fresh” to suggest a certain level of inexperience and youth.
[61] When the opportunity was provided to C.D.R., DC MC made it very clear that he was holding himself out as a female who was 14 years of age. At 16:28, when the opportunity was presented, the conversation went as follows:
16:28 - UC: Just so you know we under 18. Some guys freak out and I don’t want problems. We are small and it’s obvious.
16:29 - Accused: I’m cool with it. I’ll be gentle as long as you’re sexy and willing.
16:30 - Accused: I’ll start making my way to you now. Where are you staying?
16:31 - UC: We are both willing. We’re 14 but will both be turning 15 this year. That cool? We are buddies and very flexable??
16:32 - Accused: Should be lots of fun
16:32 - Accused: Are those real photos from the ads. Those girls look a bit older.
16:36 - UC: they are both us.
16:37- Accused: Ok. I’m going to leave now.
[62] As evident from the conversation above, there is no evidence of pressure put on C.D.R. to carry out the unlawful activity. There is no particular weakness or circumstance of the Applicant that was knowingly exploited.
[63] DC MC acknowledged that it was best practice to reference age as early as possible. That said, nothing in the approach here placed pressure on the Applicant to partake in the offer once the opportunity was provided. Indeed, the Applicant had not even left his original location when the offer was made. The Applicant was clearly free to refuse.
[64] In my view, an average person, with both strengths and weaknesses, in the position of the Applicant would not be induced into the commission of the offence. As DC MC explained, most individuals calling were not interested in having sex with “Michelle” when DC MC explained that she was 14 years of age.
[65] In this case, the Applicant was clearly open to the idea of having sex with “Michelle” despite that fact that he believed her to be 14 years old. Not only was he open to it, but he drove a substantial distance in traffic with the goal of completing the transaction.
[66] In my view, the fact that the Applicant, C.D.R., was not specifically looking to have sex with an underage female prior to the police intervention may have bearing on the appropriate sentence in this case. But in my view, this concern is not sufficient to warrant a stay of the proceedings.[^2]
[67] Accordingly, the application is dismissed.
Justice C.F. de Sa
Released in Court: November 28, 2019
[^1]: R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903 at para. 25; R. v. Amato, 1982 31 (SCC), [1982] 2 S.C.R. 418 at 445; R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128 at 145; and R. v. Pearson, 1998 776 (SCC), [1998] 3 S.C.R. 620, at para. 8
[^2]: Obviously, police conduct that justifies a stay (entrapment) cannot be remedied by a reduction in sentence. See Amato v. The Queen, 1982 31 (SCC), [1982] 2 SCR 418, at p. 462.