Court File and Parties

COURT FILE NO.: 17-13 DATE: 20200407 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SIVARATNAM SINNAPPILLAI Defendant

Counsel: Kellie Hutchinson for the Crown Jessica Sickinger for the Defendant

HEARD: March 11, 2020

preliminary ruling on entrapment application

BOSWELL J.

Overview

[1] Backpage.com was a classified advertisements website. It had a section dedicated to escort services. Not surprisingly, it attracted the attention of law enforcement agencies in both the U.S. and Canada. One major concern, at least locally, was that arrangements were being made through that website for the sale of sexual services with minors.

[2] The York Region Police Service created an investigative operation they termed “Project Raphael” in order to detect and apprehend individuals who were seeking or willing to purchase the sexual services of minors in York Region through Backpage.com.

[3] The police ran the operation a number of times. Each time, they posted an ad on Backpage.com for the sexual services of an 18 year old female. A phone number was associated with the ad so that potential customers could contact the escort by text. The 18 year old female did not exist. Instead, texts would be responded to by an undercover police officer posing as the advertised escort. The officer would let the prospective customer know that “she” was in fact a minor – anywhere from 14-17 years old depending on the iteration of the project. If the customer expressed interest in purchasing the sexual services of the minor escort, he would be directed to a hotel room. He would be arrested on arrival.

[4] Project Raphael generated a significant number of charges and, eventually, convictions. Many of those convictions spawned applications for stays, based on assertions of entrapment. To my knowledge, the entrapment applications have been uniformly unsuccessful. More than one is apparently under appeal.

[5] Mr. Sinnappillai was caught up in Project Raphael in March 2016. He was convicted in July 2019 of internet child luring (ss. 172.1(a) and (b) of the Criminal Code) and of communicating for the purpose of obtaining the sexual services of a person under the age of 18 (s. 286.1(2) of the Criminal Code). He has initiated an application to stay the proceedings against him on the basis that he was entrapped by the police through Project Raphael. His application, and his sentencing more generally, have been delayed while counsel wait for anticipated rulings from the Court of Appeal on both the entrapment issue and on the constitutionality of the mandatory minimum sentence prescribed by s. 172.1(2)(a); and (2) of the Criminal Code.

[6] In the interim, Crown counsel seeks a ruling dismissing Mr. Sinnappillai’s entrapment application on the basis of the principles of stare decisis and judicial comity. In other words, she asserts that the entrapment issue has been determined in relation to Project Raphael cases on multiple prior occasions and there is no reason for this court to depart from the conclusions reached unanimously by other courts.

[7] Mr. Sinnappillai’s counsel submits that none of the prior entrapment rulings considered the application of the Supreme Court’s decision in R. v. Mills, 2019 SCC 22. She argues that the application of the principles enunciated in Mills may make a difference to the outcome of her entrapment application. In other words, she says that her argument will be sufficiently different from arguments made in prior cases that the principles of stare decisis and judicial comity ought not to prevent her client’s application from proceeding.

[8] The positions of the parties require that I tackle the following issues in this ruling:

(i) What is entrapment? (ii) How have prior courts dealt with the entrapment argument in relation to Project Raphael cases? (iii) What are the principles of stare decisis and judicial comity and how do they apply? (iv) What is Mr. Sinnappillai’s entrapment argument in this case? (v) Is Mr. Sinnappillai’s argument distinguishable from arguments made in prior Project Raphael cases?

[9] I will explore these issues in turn.

(i) Entrapment

[10] Entrapment is not, strictly speaking, a defence to a criminal charge. It is an aspect of the abuse of process doctrine. Said another way, it is an allegation that the state has engaged in abusive conduct. It is a claim by an accused person that the case against him or her should be stayed because to do anything less would offend the court’s sense of justice.

[11] Our law imposes limits on the ability of the police to participate in the commission of an offence. An allegation of entrapment is essentially a suggestion that law enforcement authorities have manufactured, as opposed to detected, crime. See R. v. Barnes, [1991] 1 S.C.R. 449 at para. 14.

[12] The modern law of entrapment was clarified by the Supreme Court in R. v. Mack, [1988] 2 S.C.R. 903 where Lamer J., as he then was, explained that entrapment occurs in either of the following two circumstances:

(a) when the authorities provide an opportunity to a person to commit an offence without a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide investigation; or, (b) having a reasonable suspicion or acting in the course of a bona fide investigation, they go beyond providing an opportunity and induce the commission of an offence. ( Mack, para. 119).

[13] Stays of proceedings based on alleged abuses of process, including entrapment, are rarely granted. They are appropriate only in the clearest of cases. The accused bears the onus to establish that he or she was entrapped, on a balance of probabilities. See R. v. Ahmad, 2018 ONCA 534 at para. 31.

(ii) Prior Decisions on Project Raphael and the Issue of Entrapment

[14] There have been at least five prior cases that have addressed entrapment arguments in the context of Project Raphael cases in York Region. They include R. v. Haniffa, 2017 ONCJ 780; R. v. Jaffer, an unreported decision of Mullins J. dated October 16, 2017; R. v. Dare, an unreported decision of Bird J. dated June 22, 2018; R. v. C.D.R., 2019 ONSC 6894; and R. v. Faroughi, 2020 ONSC 407.

[15] In each of the five decisions I have just referred to, an argument was advanced on behalf of the accused that Project Raphael did not involve a bona fide police investigation and was, instead, nothing more than random virtue testing.

[16] To my knowledge, the Crown has never suggested that the police had a reasonable suspicion that any of the accused persons responding to their fake Backpage ads was involved in criminal activity. The focus has always been on whether the police were acting in the course of a bona fide investigation and, if so, whether they induced the accused in issue to commit an offence.

[17] What constitutes a bona fide investigation was the focus of the Supreme Court’s decision in R. v. Barnes, as above. In Barnes, former Chief Justice Lamer held that the police may present the opportunity to commit a particular crime to persons who are reasonably suspected to be engaged in criminal activity or to persons who are associated with a location where it is reasonably suspected that criminal activity is taking place. He said, specifically, at para. 23:

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.

[18] In effect, the reasonable suspicion of criminal activity in a location becomes a proxy for the reasonable suspicion of criminal activity by an individual.

[19] In each of the five prior York Region cases that I cited above, the court held that the design of Project Raphael did not amount to random virtue testing. Each court held that Project Raphael was a bona fide investigation, and found specifically that:

(a) Backpage.com was a location; (b) The police had a reasonable suspicion that criminal activity (underaged prostitution) was happening at that location; and, (c) The location was defined with sufficient precision.

[20] In the result, each court concluded that it was open to the police to present anyone responding to their advertisement with an opportunity to commit the offences that Mr. Sinnappillai and others were charged with.

(iii) The Principles of Stare Decisis and Judicial Comity

[21] About 14 months ago, in a case called R. v. Chan, I canvassed the principles of stare decisis and judicial comity in some detail in a decision reported at 2019 ONSC 783. I will provide a summary here.

[22] Stare decisis and judicial comity are both doctrines of legal precedent.

[23] The doctrine of stare decisis essentially compels courts to stand by things already decided. The doctrine of judicial comity urges courts of concurrent jurisdiction to extend courtesy and recognition of each other’s decisions.

[24] Both doctrines serve the same purposes. Specifically, to promote consistency, certainty and predictability in the law and to enhance the legitimacy and repute of the common law: see David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 (C.A.) at paras. 119-120.

[25] Crown counsel urges me to follow the decisions of my judicial colleagues on the Superior Court bench in the Central East Region of Ontario. She asks that I apply the horizontal convention of precedent to conclude that Project Raphael was a bona fide investigation for the purposes of Mr. Sinnappillai’s entrapment application and that the police were justified in presenting Mr. Sinnappillai with an opportunity to commit the offences.

[26] As I noted in Chan, the horizontal convention of precedent, while not binding, suggests that relevant decisions of the same level of court should be followed as a matter of judicial comity, unless there are compelling reasons that justify departing from the earlier ruling.

[27] Justice Strathy, as he then was, summed up the convention in R. v. Scarlett, 2013 ONSC 562 at para. 43 as follows:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

[28] In Crown counsel’s submission, none of the prior decisions emanating from this court have been clearly wrong in reaching the conclusions they did about the design of Project Raphael. In particular, that it was a bona fide investigation, involved a location where the police reasonably suspected underaged prostitution was occurring, and was defined with sufficient precision to attenuate any concerns about random virtue testing. She urges me to follow those prior decisions as a matter of judicial comity.

(iv) Mr. Sinnappillai’s Entrapment Argument

[29] The March 2016 iteration of Project Raphael involved an advertisement on Backpage.com for an escort named “Kathy”. The ad read as follows:

Back only for a few days – Tight Brand New girl in MARKHAM – Waiting for You – 18

Hi guys my name is Kathy and Im a girl who is sexy and young with a tight body looking for fun. Im only here for a few days just visiting from out of town.

I also have a YOUNG FRIEND if your interested too.

In calls only. Don’t miss this you’ll be sorry!!

Highways 7 and woodbine Markham area :)

80hh 140 fh

Poster’s age: 18

TEXT ONLY 289-204-2043

[30] Mr. Sinnappillai contacted the number posted in the ad and began communicating with Kathy just after 10:00 p.m. on March 25, 2016. They talked briefly about services and pricing and then Kathy let Mr. Sinnappillai know that she was just 15 years old. Mr. Sinnappillai responded, “don’t worry, I like”. They agreed on a half hour “bareback” session for $100.

[31] Kathy was not real of course. She was Inspector Ryan Hogan. He directed Mr. Sinnappillai to a hotel room in Markham. When Mr. Sinnappillai arrived for his sexual rendezvous with Kathy he was arrested.

[32] Mr. Sinnappillai’s counsel argues that he was entrapped by Project Raphael on the basis that:

(a) The police did not have a reasonable suspicion that he was involved in criminal activity. This much is agreed to by the Crown; and, (b) The escort section of Backpage.com was not a location sufficiently precise to allay concerns about random virtue testing. It cast far too wide a net. It was akin, in her submission, to a park in an area where drug trafficking occurs. While some people may attend the park for criminal purposes, most attend for other, entirely legal, purposes. The police, in such circumstances, would not be permitted to approach anyone in the park and ask to purchase drugs.

(v) Is Mr. Sinnappillai’s argument distinguishable from arguments made in prior Project Raphael cases?

[33] At first blush, Mr. Sinnappillai’s entrapment argument appears to be framed in the same way as those advanced in a number of prior cases including Haniffa, Jaffer, Dare and C.D.R. In each of those cases, as I noted, the court addressed the issue of whether Backpage.com was a location of sufficient precision that it met the threshold described in Barnes, as above.

[34] In Dare, for instance, Bird J. described the applicant’s position as follows:

There is no doubt that Project Raphael was motivated by the genuine purpose of investigating and repressing criminal activity – specifically juvenile prostitution. The question is whether the investigation was directed to an area that was defined with sufficient precision.

[35] In C.D.R., De Sa J. described the applicant’s position in the following terms:

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. The Applicant argues that there must be evidence that the particular crime is occurring in a “location” that is defined with sufficient precision.

[36] Justices Bird and De Sa both ruled that Backpage.com was a location defined with sufficient precision that Project Raphael did not cross the line into unacceptable random virtue testing.

[37] Mr. Sinnappillai’s counsel asks that the court take a closer look at the argument. She says that none of the prior cases involved a consideration of the impact that the Supreme Court’s decision in R. v. Mills, 2019 SCC 22 had on the entrapment defence. In her submission, Mills supports the assertion that Backpage.com was not a sufficiently precise location because the police did not have a means to distinguish, from the outset, those visitors to the site who were seeking adult sexual services from those seeking underaged prostitutes. The only means of enabling such a distinction would be to ensure that anyone contacting Kathy knew from the outset that she was underage.

[38] Mills is not the easiest case to comfortably comprehend. This is due in part to the difficult concepts it addresses and in part because the decision is fractured into three distinct analyses. It is, moreover, not easy to understand what, if any, impact Mills may have on entrapment cases. I will, in the result, consider the case in some detail.

R. v. Mills

[39] Mills was decided after all but C.D.R. and Faroughi, so naturally it was not referred to in Haniffa, Jaffer or Dare. Although it was referred to by De Sa J. in C.D.R., at para. 42, there was no analysis of the decision and its impact, if any, on the contours of the entrapment defence.

[40] In Mills, a police officer posed as a 14 year old female named Leann in an undercover operation aimed at catching internet child lurers. The police created a Facebook account for Leann with a photograph of a young female and information that she resided in St. John’s Newfoundland and attended a local high school. The accused, aged 32, contacted Leann through her Facebook page and subsequently exchanged messages with her over a two month period. He pretended to be 23 years old. Eventually, he arranged to meet Leann at a local park. He was arrested on arrival.

[41] The police had saved all of the communications between the accused and the undercover officer posing as Leann. The accused applied to exclude the communications from evidence at his trial on the basis that they were the fruits of a “search” conducted in violation of his s. 8 right to be secure against unreasonable search and seizure.

[42] Mills was heard by a panel of seven Supreme Court justices. The case generated four sets of concurring reasons. Six of the seven judges determined that Mr. Mills’ s. 8 right had not been infringed. One determined that his s. 8 right had been infringed, but that the evidence should nonetheless not be excluded under s. 24(2) of the Charter.

[43] It is well-settled that s. 8 protects reasonable expectations of privacy. See Hunter v. Southam Inc., [1984] 2 S.C.R. 145. The Court was divided, 6-1, on whether Mr. Mills had a reasonable expectation of privacy in the messages he sent electronically to Leann.

[44] Justice Brown, writing for himself and Justices Abella and Gascon, held that while Mr. Mills had a subjective expectation of privacy in his communications with Leann, his subjective expectation was not objectively reasonable.

[45] Justice Brown observed that reasonable expectations of privacy are determined on a normative basis. In other words, the s. 8 inquiry considers which privacy interests society considers worthy of protection. He held that the online communications between an adult and a child who is a stranger to that adult are not worthy of s. 8 protection.

[46] In Canadian law, reasonable expectations of privacy in communications have never been dependent on the nature of the relationship between the parties to the communication. There are certainly relationships that are presumptively confidential, such as a solicitor and client, or a doctor and patient. But for the most part, the nature of any relationship between the parties to a communication has been just one aspect of the totality of the circumstances in which the s. 8 analysis occurs.

[47] Mills, however, represents the first instance where a particular type of relationship has been identified as presumptively not entitled to s. 8 protection.

[48] Justices Brown, Abella and Gascon agreed that adults cannot reasonably expect privacy in communications they have online with children they do not know. This exception to s. 8 protection is grounded in normative reasoning. Specifically, the recognition that “children are especially vulnerable to sexual crimes; that the Internet allows for greater opportunities to sexually exploit children; and that enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society.” (Mills, para. 23, internal citations omitted).

[49] Justice Brown was clear that he was not countenancing random surveillance by the police of online communications between adults and children where the relationship between the parties is unknown. But based on the design of the sting operation in issue, the police knew from the outset that Mr. Mills and Leann were strangers. There was never any fear that it would be necessary for the police to sift through numerous communications to ascertain the nature of their relationship.

[50] Justice Karakatsanis, writing concurring reasons for herself and Chief Justice Wagner, held that s. 8 did not apply to the communications between Mr. Mills and Leann. She considered those communications to be the equivalent of oral communications between a suspect and an undercover officer. The police did not intercept the communications. They participated in them. They did not create a record of Mr. Mill’s communications; he did that himself when he typed and sent his messages to Leann.

[51] Like Justices Brown, Abella and Gascon, Justices Karakatsanis and Chief Justice Wagner found that Mr. Mills did not have an objectively reasonable expectation of privacy in his communications with Leann. It was not reasonable for him to expect that the messages he sent would be kept private from their intended recipient, even if that recipient happened to be an undercover police officer.

[52] Justice Moldaver concurred with the reasons of both Justices Brown and Karakatsanis.

[53] Justice Martin was the one judge who concluded that Mr. Mills’ s. 8 right was violated. She found that Mr. Mills did have a reasonable expectation of privacy in his online communications with Leann. In her view, the conversations – which were saved through the use of a screenshot capture program called “Snagit” – were akin to participant surveillance. In other words, surveillance where one or more of the parties to a communication consents to their interception and recording. Participant surveillance requires a warrant pursuant to s. 184.2 of the Criminal Code.

[54] Justice Martin described the Mills case as “Duarte for the Digital Age”. In R. v. Duarte, [1990] 1 S.C.R. 30, the Supreme Court held that surreptitious participant electronic surveillance by the police requires regulation because of its tendency to transform the declarant’s ephemeral words into a permanent documentary record. The existence of such a record eliminates the right of the speaker to choose who hears his or her words.

[55] She went on to address and reject the concept of a relationship-based s. 8 exclusion.

[56] Notwithstanding her conclusion that Mr. Mills’ s. 8 right was breached by the police, she found that the admission of the impugned evidence would not bring the administration of justice into disrepute.

The Application of Mills to Entrapment Cases

[57] I confess that it is not entirely clear to me how any of the concurring reasons in Mills apply to Mr. Sinnappillai’s argument that he was entrapped by the police through Project Raphael.

[58] To state the obvious, Mills was not an entrapment case; its focus was on s. 8 of the Charter. Equally obvious is that Mr. Sinnappillai’s application is not focused on s. 8 of the Charter. Its focus is on the allegation of entrapment.

[59] Defence counsel, in her factum, highlighted a passage from para. 60 of Justice Karakatsanis’ reasons as being of particular significance to her argument. Justice Karakatsanis observed that the internet allows the police to use undercover operations to proactively target sexual predators of children. But, she said, the police do not have “a broad license to engage in general online surveillance of private conversations.” She noted that the entrapment doctrine, amongst other common law principles, places limits on the ways the police can use electronic communications in the course of an investigation.

[60] I think it is clear that the police cannot use proactive undercover operations on the internet to entrap people. That was the case both before and after Mills. In my view, there is nothing in what Justice Karakatsanis wrote that changes the law of entrapment. Nor was there meant to be. Moreover, one could never describe the Project Raphael model as one of “general online surveillance of private conversations.”

[61] In oral argument, defence counsel submitted that one of the issues in Mills was the “propriety” of the police investigation. She argued that the propriety of the police sting operation in Mills was grounded in the fact that it was immediately apparent to anyone communicating with the fictional Leann that they were communicating with a child and that the child was a stranger. The implied suggestion is that the design of Project Raphael was, by contrast, not proper because no one texting Kathy would have known, from the get-go, that she was a minor.

[62] I do not accept that Justice Brown’s reasons, in fact, addressed the “propriety” of the police sting operation conducted by the Royal Newfoundland Constabulary. They addressed whether Mr. Mills’ s. 8 Charter right was breached by the operational model used by the police. Undoubtedly, certain aspects of the operational model were crucial to the analysis. For instance:

• From the point of view of the charges laid against Mr. Mills, it was crucially important that he believed Leann to be a child. Otherwise the mens rea of the offence of child luring could not be made out;
• With respect to the relationship-based s. 8 exclusion fashioned by Justice Brown, it was crucially important that Mr. Mills and Leann were strangers; and,
• From a privacy perspective, it was crucial that the police knew, from the get-go, that Mr. Mills and Leann were strangers to one another.

[63] Having said that, I do not believe that it was crucial to the outcome in Mills that Mr. Mills knew from the outset that Leann was a minor. More important was that he chose to communicate with a person he understood to be 14. He communicated with her in a sexualized way. He sent her a photo of his erect penis. And he arranged to meet with her at a local park.

[64] Of particular significance to Justice Brown’s s. 8 analysis was that the police knew from the outset that Mr. Mills and Leann were strangers. The significance of this factor had nothing to do with the propriety of the operation from an abuse of process point of view. It had to do with the assurance that the investigative technique used by the police did not “significantly reduce the sphere of privacy enjoyed by Canadians.” Justice Brown held, specifically, at para. 24:

The difficulty, of course, is that, in most situations, police are unlikely to know in advance of any potential privacy breach the nature of the relationship between the conversants — for example, whether the child truly is a stranger to the adult. We must also bear in mind that most relationships between adults and children are worthy of s. 8’s protection, including, but in no way limited to, those with family, friends, professionals, or religious advisors. Significantly, and most importantly for the disposition of this appeal, this difficulty does not arise here. Here, the police were using an investigative technique allowing it to know from the outset that the adult was conversing with a child who was a stranger. Different normative considerations arise here, both as to the nature of the relationship and how that informs the s. 8 analysis, and as to the degree by which the investigative technique reduces the sphere of privacy enjoyed by Canadians.

[65] In my view, none of the concurring reasons in Mills supports the assertion that the design of Project Raphael was improper because those parties choosing to contact “Kathy” did not know, up-front, that she was a minor.

[66] While I certainly appreciate counsel’s efforts, in my view, the argument being advanced is no different from arguments that have been made in earlier Project Raphael cases. I find no support in Mills for the defence assertion that the Backpage.com target area was not defined with sufficient precision.

[67] It is fundamentally important to recognize that Mills was not a case about entrapment, or about abuse of process more generally. It was a case about the limits of s. 8 of the Charter. Entirely different issues and principles were in play. None of the sets of concurring reasons dealt with entrapment issues and none of them are readily transferrable to entrapment cases.

[68] Not only do I not think my colleagues were clearly wrong in their conclusions about Project Raphael, but I would, in fact, answer the defence arguments in the same way that others have done before me.

[69] There is no question that the world wide web has provided tremendous opportunities for commerce. Not all of the commerce being conducted on the internet is of a lawful nature. Prostitution is an area that has been enriched by the benefits the internet provides. Johns no longer have to circle around Jarvis and Pembroke Streets in downtown Toronto (or their equivalents in other cities). They can more easily and discretely do their shopping online.

[70] There is unfortunately a demand for underaged sex workers. And the same ease and anonymity that aids those seeking the services of adult sex workers online similarly aids those seeking to exploit young people for their sexual pleasure.

[71] It has repeatedly been determined that Backpage.com was a website reasonably suspected of being a location where underaged prostitution was occurring. The police have provided credible evidence on other applications to support their reasonable suspicion.

[72] It has also been determined that the targeting by the police of the escorts section of Backpage.com was a sufficiently precise location to dispel any concerns about random virtue testing. In R. v. Dare, for instance, Justice Bird held as follows:

The defence takes the position that because the investigation targeted anyone who was interested in obtaining sexual services in York Region, it was overly broad. The defence relies on the fact that people, such as Mr. Dare, who were interested only in obtaining the services of an adult escort can be entrapped into committing the offences charged. I do not accept the argument that the ad posted by Inspector Truong created the danger that the entrapment doctrine was designed to prevent – specifically that it would cause law-abiding citizens to commit criminal offences they otherwise would not have committed…As noted, the ad posted by Inspector Truong contained several indicators that the escort was young. A person who was looking for an older escort would not have had any reason to select this ad. The police did everything possible within the confines of Backpage to limit the pool of people who would select this ad to those who were interested in obtaining the sexual services of a young escort. In doing so, I find that they did not cross the line into random virtue testing. This case is very similar factually to R v. Chiang [2012] B.C.J. No. 350 wherein the Court of Appeal found that an investigation which involved posting an online ad in the erotic services section of Craigslist was carefully limited to a circumscribed area. I come to the same conclusion on the facts of this case.

[73] Justice De Sa came to a similar conclusion in C.D.R., as above, in the face of an assertion that Project Raphael cast too broad a net. In the Ontario Court of Justice, Kenkel J.’s reasons in R. v. Haniffa, as above at paras. 20-2, strike a similar note:

…This project was aimed at…reducing juvenile prostitution by focusing on those who purchase sex from children. The project was set up at the leading website where prostitution is advertised in this region. Young persons whose sexual services are being sold are advertised on that site. The fact that the majority of ads may feature adult prostitutes and that juvenile prostitutes are a smaller subset as argued by the defence does not detract from the central point shown in the evidence -- that Backpage.com is the location where children are being sold for sex in York Region.

In this project DS Truong did not engage in random virtue testing. Mr. Haniffa was part of a group of persons seeking to obtain sexual services for consideration contrary to s.286.1 of the Criminal Code. Among that group he was part of a smaller subset who responded to an ad stating the minimum possible age with numerous descriptive words emphasizing the youth and inexperience of the person selling sexual services -- "Young, Shy, FRESH and NEW", "Be Gentle", "Super new to this", "Pretty shy". Of those that remain in that small group who went further and contacted the officer, he was one that did not ask to clarify the person's age and who appeared to ignore information during the conversation that indicated the person might be underage.

[74] Clearly, the prior jurisprudence on Project Raphael has grappled with the argument that the police would not have known, from the outset, which visitor to the escorts section of Backpage.com was looking for an underage prostitute. And they have been alive to the fact that those parties texting “Kathy” would not have known, from the get-go, that she was underage. Uniformly, courts have rejected these factors as undermining the design of the operation.

[75] In the March 2016 iteration of Project Raphael, the police once again used a number of markers about the young age of the fictitious escort. They advertised her as “tight”, “brand new”, “sexy and young” and with a “young friend”. Again, the police did everything they could to narrow the pool of targets to those interested in sex with young females.

[76] In my view, none of the concurring reasons in Mills changes the landscape at all. Nothing said in Mills supports a conclusion that Project Raphael was an exercise in random virtue testing.

[77] It is only in the clearest of cases that a proceeding will be stayed on the basis of an abuse of process. An applicant must satisfy the court that anything less than a stay of proceedings would be an affront to justice and would offend the community. This is a big ask. As the Court of Appeal noted in R. v. Ahmad, as above, the state has considerable leeway in developing techniques to fight crime. (Para. 31). I am not satisfied that the design of Project Raphael was abusive.

[78] I am not persuaded that the prior entrapment decisions arising from Project Raphael are clearly wrong. While I accept that no one has previously taken on an analysis of the impact of Mills on the entrapment argument, I am of the view that Mills makes no material difference to the analysis.

[79] I find therefore, based on the analyses in Dare and C.D.S. in particular, that Project Raphael was a bona fide investigation. I find that Backpage.com was a location and I find that the police had a credibly based, reasonable suspicion that underage prostitution was taking place at that location. Moreover, I find that the location was defined with sufficient precision to attenuate concerns that the police were engaged in random virtue testing.

[80] Recall that R. v. Mack, as above, defined two circumstances in which entrapment may occur. For convenience I repeat them here:

(a) when the authorities provide an opportunity to a person to commit an offence without a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide investigation; or, (b) having a reasonable suspicion or acting in the course of a bona fide investigation, they go beyond providing an opportunity and induce the commission of an offence. (Mack, para. 119).

[81] The two circumstances identified in Mack operate independently. Mr. Sinnappillai need only establish, on a balance of probabilities, that one or the other circumstance was present here. To the extent that Mr. Sinnappillai’s entrapment application is based on the first branch, it fails for the reasons I have set out.

[82] Having said all of that, none of my reasons involve the second branch. Mr. Sinnappillai may, should he wish, proceed with an argument that the police in this instance went beyond providing an opportunity to commit an offence and actually induced the commission of an offence. Such an argument will turn on the specific facts of this case and the specific communications between the undercover officer and Mr. Sinnappillai.

[83] In the face of the COVID-19 crisis, the Chief Justice directed the suspension of the usual operations of the Superior Court. At present only urgent matters are being heard, and then only by telephone conference hearings. This matter was scheduled to be spoken to on April 3, 2020. As a result of the Chief Justice’s Order dated March 15, 2020, it has been put over to be spoken to on June 3, 2020. A further date for the continued sentencing hearing will be scheduled at that time.

Boswell J. Released: April 7, 2020