Court File and Parties

NEWMARKET COURT FILE NO.: CR-18-1796 DATE: 2020-01-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Arian Faroughi, Applicant

Counsel: Kellie Hutchinson, for the Crown Joseph Neuberger, for the Applicant

HEARD: December 6, 2019

Ruling on Entrapment Application

LEIBOVICH, J.

Overview

[1] Mr. Faroughi was convicted on June 19, 2019, after a trial by myself and a jury of 1) communicating with a person believed to be under the age of 18 for the purposes of facilitating an offence under s. 286.1(2) of the Criminal Code; 2) communicating with a person believed to be under the age of 16 for the purposes of facilitating the offence of invitation to sexual touching, contrary to s. 152 of the Criminal Code; and 3) communicating with a person for the purpose of obtaining for consideration the sexual services of a person under the age of 18, contrary to s. 286.1(2) of the Criminal Code. [2] On March 4, 2018, Mr. Faroughi, then 19, called a number listed on Backpage.com. A series of text messages ensued whereby Mr. Faroughi arranged to pay for the sexual services of a prostitute for two hours for $220. Part of the arrangement was that he could ejaculate four times. The escort communicated to him that she was 14 and in grade 8. Mr. Faroughi arrived at the hotel in question and was arrested by the police. He had $220 on him. The person that Mr. Faroughi was communicating with was not an underage escort. Rather, it was a police officer, Detective Cober, who, as part of “Project Raphael” was posing as an underage escort. [3] It was the defence’s position at trial that Mr. Faroughi was just goofing around, did not intend to have sex with the escort, did not believe that she was under 18, and that he only went to the hotel to pay her the money because he was afraid. The jury was instructed that they must be satisfied beyond a reasonable doubt that the accused believed that the person was under the age of 18 for counts 1 and 3, and 16 for count 2, and that the purpose of the communication was to have sexual relations with that person. The jury found Mr. Faroughi guilty of all counts. Mr. Faroughi has now brought an application to have the charges stayed because he was entrapped. He also argues that his section 7 rights were violated by a failure to disclose.

Positions of Counsel

[4] The focus of the defence’s argument was that Mr. Faroughi was entrapped by the police because they went beyond providing him with an opportunity and they induced the commission of the offence. The defence emphasized the texts towards the end of the conversation whereby after Mr. Faroughi said that he was not coming, the undercover officer responded: “Stop playing games” and “Are u coming or not”. The defence also emphasizes that the police should have realized that the accused was nervous when he subsequently arrived first at the wrong building and without money. The police should have ended it there, but instead when the accused was delayed the undercover officer texted, “Your killing me.” The defence also relies on the police’s failure to ensure that the phone number that was used for the operation was a clean number. In fact, it had been used by other escorts and Mr. Faroughi noticed this when he initially googled the number. This knowledge, which the police should have been aware of, reinforced Mr. Faroughi’s view that he was dealing with an escort business and he had to go through with it because he was afraid. [5] The Crown submitted that the police did nothing wrong and it is evident from the texts that there was no inducement, that the accused was a willing, acting participant, and that the ordinary person would not feel compelled to commit the offences. The failure to check the history of the phone was of no moment and adds nothing to the entrapment analysis.

The Test for Entrapment

[6] The law of entrapment is fairly well settled. It is not a substantive or exculpating defence, but rather it is a serious allegation of state conduct that requires, in the clearest of cases, that a stay be entered. Where the circumstances that merit a stay are made out it is because the actions of the government have so exceeded acceptable limits that the court must distance itself from that behaviour to ensure that the integrity of the court is maintained. As stated in R v. Ahmad, 2018 ONCA 534, at para. 30:

The seminal authority on the modern law of entrapment is the Supreme Court's decision in R. v. Mack. In setting out the contours of the entrapment doctrine, Lamer J., as he then was, sought to balance two competing objectives. On the one hand, he recognized that the police must be given considerable latitude in their investigation of crime, especially consensual crimes such as drug trafficking where traditional investigative techniques may be ineffective: Mack, at pp. 916-17; R. v. Imoro, 2010 ONCA 122, at para. 8, affirmed: 2010 SCC 50. On the other hand, he acknowledged that the police do not have unlimited power to randomly test the virtue of individuals and manipulate them to obtain convictions: Mack, at pp. 941, 959; Imoro, at para. 9.

[7] In R. v. Mack, the Supreme Court of Canada stated that entrapment occurs when:

a. The authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; or

b. Although having such reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

Analysis

1) Were the police acting pursuant to a bona fide inquiry?

[8] While this was raised as an issue in the applicant’s factum and discussed briefly in oral submissions, it was, in essence, abandoned. Counsel for Mr. Faroughi noted that there was relatively little information given in Detective Cober’s evidence at trial about the nature of the police investigation. Detective Cober testified at trial that the purpose of Project Raphael was to address the demand side of child sex trafficking and to target those seeking to purchase sex from a child prostitute. Counsel for Mr. Faroughi argued that there was no information provided with respect to how this connected to Backpage.com [9] This is correct, but Counsel for Mr. Faroughi agreed that the Crown on this application would not be required to reprove that Project Raphael was a bona fide inquiry and was content to have the Crown rely on other Project Raphael cases, such as R. v. Jaffer, an unreported decision dated October 16, 2017 of Justice Mullins of the Ontario Superior Court, and R. v. Dare, an unreported decision dated June 22, 2018 of Justice Bird of the Ontario Superior Court, where additional evidence was called at the entrapment application to establish that Project Raphael was a bona fide inquiry. I have read those cases and I agree with their analysis with respect to how Project Raphael meets the bona fide inquiry test. Regarding how Backpage.com specifically was linked to the problem of underage prostitution Bird J stated in R. v. Dare:

In my view, the evidence overwhelmingly establishes that the Backpage.com is such a website. In December of 2013, Inspector Truong was involved in a project dubbed “Home for Christmas”, the goal of which was to remove juveniles from the sex trade industry. In just two weeks, officers identified 31 potentially under aged escorts who advertise their services on Backpage. The police were able to determine that of those 31 females, nine of them were actually under the age of 18. In addition, in his Curriculum Vitae Inspector Truong lists 44 cases that he investigated in 2013, 2014 and 2015 that involved under aged sexual activity being advertised on Backpage.

[10] And more recently, in another Project Raphael case, De Sa J. stated in R. v. C.D.R., 2019 ONSC 6894 at para. 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.

[11] In my view the police were operating as part of a bona fide inquiry.

2) Did the police induce Mr. Faroughi to commit the offence?

[12] The focus of the entrapment motion was the assertion that the police went beyond providing Mr. Faroughi with the opportunity to commit an offence, but rather that they induced him to commit the offence. In considering whether the police induced Mr. Faroughi, the focus is on the police conduct itself as opposed to the possible effect of that conduct on Mr. Faroughi. It is an objective assessment where the reasonable person stands in the place of the accused with his or her strength and weaknesses. As stated by Lamer J. in R. v. Mack, at paras 106, 110 and 120:

The issue is whether this conduct should be evaluated in light of the particular accused or whether the analysis should be more detached and focus on police conduct with accused persons generally. I have come to the conclusion that it is the latter method of analysis which is the most consistent with the reasons for recognizing the doctrine of entrapment, and which best achieves the objective of ensuring that the administration of justice commands the respect of the community.

Obviously it is difficult to determine exactly what caused the accused's actions, but given that the focus is not the accused's state of mind but rather the conduct of the police, I think it is sufficient for the accused to demonstrate that, viewed objectively, the police conduct is improper.

As regards the latter form of entrapment, to determine whether police conduct gives rise to this concern, it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused, i.e., a person with both strengths and weaknesses, into committing the crime. I believe such a test is useful not only as an analytical mechanism that is consistent with objective analysis, but also because it corresponds to one of the reasons why the defence is thought desirable. In other words, it may be inevitable that when apprised of the factual context of an entrapment case, members of the community will put themselves in the position of the accused; if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety. The reasoning does not go so far as to imply that the accused is therefore less blameworthy; rather, it suggests that the state is involved in the manufacture as opposed to the detection of crime. [emphasis added]

[13] The police are also precluded from exploiting a particular weakness, such as alcohol or drug dependency or mental illness of the accused or a close confidential relationship of the accused. Lamer J. in R. v. Mack, at para.133, provided the following list of useful factors to consider:

• 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; and
• whether the police conduct is directed at undermining other constitutional values.

The Phone Number Used in the Operation

[14] As will be explained momentarily, the phone number used in the sting operation had not been cleaned and a google search revealed that the number was associated with other escort ads. Counsel for Mr. Faroughi submitted that the failure of the police to ensure a clean number was used shows, at the very least, unacceptable negligence. In his written factum, Counsel for Mr. Faroughi submitted that the Court could find that this was a deliberate act to entrap more people into the operation. Mr. Faroughi at the time of the offence conducted a google search, learned that there was a prior ad associated with the number, one for a 34-year-old escort. Counsel for Mr. Faroughi submitted that this supported Mr. Faroughi’s position that he was afraid because he knew from his google search that he was dealing with an escort agency. [15] At trial, Detective Cober, who was the undercover officer who posed as the 14-year-old escort, testified that it was his habit to search the phone number used in an operation to ensure that there were not any ads. He testified that he could not remember if he had specifically conducted a search on this occasion, and he knew that he had used this number in previous operations. He disagreed with the suggestion that the number would be associated with other ads. During cross-examination, Defence counsel ran a search that showed other escort ads associated with the number and showed it to Detective Cober. Detective Cober agreed in his testimony that the search showed other escort ads. He testified that it was his practice to conduct such a search and he did not recall any ads being connected to the number. [16] Mr. Faroughi testified that at the time of the incident, he conducted a google search on the phone number and found a different escort ad. The person in that ad was 34 years old. He testified that this supported his belief that the person that he was texting with was not under the age of 18. Mr. Faroughi was not challenged in cross-examination that he saw this other ad. He was challenged on why he thought that this other ad of a 34-year-old escort was relevant to his belief in the current case which contained a picture of a different person. [17] On this application an agreed statement of fact was filed with respect to phone number 647-792-5108. The agreed statement of fact makes the following points: a. Phone number 647-792-5108 was used previously in Project Raphael cases from January 18-19, 2018 and also on March 3, 2018; b. James Phillips, a certified cyber forensic professional, conducted a search on the number the week of July 26, 2019, after the accused’s trial. The search revealed that during the week of July 26, 2019, the phone number was used in advertisement for escorts in 2015, 2016 and 2017; c. At the time of Mr. Phillips’s search, no 2018 escort ad appeared; and d. It is reasonable to conclude that a search conducted in January or March 2018 would have resulted in at least some, and potentially all, of the escort ads that Mr. Phillips found. [18] Having read over the evidence from the trial that was filed on this application and having considered the agreed statement of facts that has been filed on this application, I accept that Detective Cober did not conduct a search of phone number 647-792-5108 before the encounter with Mr. Faroughi. Given the agreed statement of facts, it seems that back in March 2018 a google search would have revealed other escort ads associated with the number. Mr. Faroughi testified that he saw one such ad. However, I do not find that Detective Cober, when he testified at trial, was trying to mislead myself or the jury. While I have read the transcripts, I also recall him testifying on this point and attempting to remember if, apart from his regular practice, he had conducted such a search. He was, in my view, genuinely unable to recall. In addition, Detective Cober’s testimony that he did use the phone number in a prior Project Raphael operation was confirmed by the agreed statement of facts. [19] I do not find that the failure to conduct such a search to be unacceptable negligence on the part of the police or a purposeful decision to entrap more people. In my view, the failure to use a clean phone number was an oversight. I do not believe that the police knowingly used a number that was associated with an escort to draw people into the operation. While potentially such a linkage could enhance the sting operation, it could also detract as the other images may not be consistent with a young escort or any escort agency or it could be connected to a completely different business. Detective Cober’s evidence that his practice was to ensure that there were no such ads makes sense. In this case, someone forgot to conduct that check. There was no tactical advantage for the police to purposely fail to check. [20] In my view, in the circumstances of this case, the oversight was a harmless one. As noted above, when considering the defence of entrapment, one must look at the conduct of the police not the accused’s state of mind. There is nothing in the text exchange that would reveal to Detective Cober that Mr. Faroughi had conducted the google search, let alone that it had some impact on him. Nor do I think that it is realistic to think that this is something that Detective Cober should have thought of as he was texting with Mr. Faroughi. [21] Even if one were to consider the perspective of Mr. Faroughi, which was unknown to the police, he testified that the ad of the 34-year-old escort that he saw was relevant to his belief that the person he was talking to was over 18 years old. Mr. Faroughi testified that he went to the hotel because he was afraid and was worried that the escort could track his phone and link it to his parents and then tell his parents. At no point did he connect this fear to the ad of the 34-year-old escort. The fact that the phone number used in the operation was associated with other escort agency ads is simply not a relevant factor in this entrapment argument [22] The accused also submits that in the alternative, the charges should be stayed because the police did not disclose to them that the phone number had a prior association with escort agencies. This argument was not pressed in oral submissions. There is no basis to stay the charges in this regard. Detective Cober thought that the number used was clean. He was mistaken. There is no evidence that the police knew about the prior history of the phone. However, it is evident that counsel for the accused knew, as he cross-examined Detective Cober on this point. If counsel had wanted, he could have requested from the Crown, prior to trial, information about the prior history of the phone and if a search had been conducted before the operation. He did not do so, probably choosing, quite properly, to use the element of surprise at trial. Defence counsel’s tactics were perfectly appropriate, but his approach makes his request for a stay untenable. Furthermore, the jury was not deprived of valuable information as Detective Cober was cross-examined on the past ads, and Mr. Faroughi testified that he saw the prior ad and the fact that he saw the ad was not challenged. At the end of the day, Mr. Faroughi was able to submit to the jury that the prior ad lent credence to his assertion that he thought that the escort was over 18. The jury heard his evidence on this point, but they rejected it, as they were entitled to do.

Was Mr. Faroughi otherwise induced by the police?

[23] Counsel for Mr. Faroughi submitted that when you look at the circumstances as a whole, you have a person that the police knew was young and nervous and who tried to back out twice, and would have, if the police would have let him. Counsel for Mr. Faroughi points to: 1) the length of the conversation, as it took place over two hours; 2) the undercover officer’s response, “Stop Playing Games. U coming or not” when Mr. Faroughi’s texted that he was not coming; 3) that the police knew that were dealing with a young adult who was nervous and didn’t have any money; and 4) the undercover’s officer’s comments, “your killing me” at a time when they must have realized that Mr. Faroughi was nervous. [24] I will address the individual complaints, but in my view, when one steps back and looks at all the circumstances, it is clear that the accused was not induced into committing the offence. The text exchange reveals no threat or coercion by the police. The accused initiated the text exchange and was actively involved in setting the price and parameters of the planned encounter and showed a grasp of the language of the trade. The accused twice said he had changed his mind but then he reengaged with the escort and he drove to the planned rendezvous and arrived at the room with money in hand. 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.

The nature and length of the communication

[25] All the communications took place via text. There were no in-person communications where subtle or not so subtle nonverbal cues can have a great effect on an accused. A text communication is a relatively easy one to terminate. Furthermore, the only information the police had with respect to Mr. Faroughi and what he was thinking or not thinking is the information revealed by the texts themselves. Counsel for Mr. Faroughi properly points out that the text exchange took place over two hours. This is correct. However, this cannot be equated with a two hour live verbal conversation given the inherent time gaps in texting.

An active participant

[26] While the police knew early on that the accused was portraying himself as 20, the texts do not reveal an immature or unknowing individual. The accused was not a passive customer. He was actively involved from the beginning in determining the rate, location and scope of services. His first text, after the escort responded that she was there, was, “what’s your rate” followed by “what’s your location”, a question he asked numerous times. Very early in the text discussion, with “her” third text, the “escort” established that she was under 18. The accused’s response was that he was okay with it. He used terminology that one would expect from a seasoned customer such as: “Gfe”[^1]; “twice one hour”, “do you do out calls”, “I want 2 hours no rush”. The accused did not simply accept the rate offered to him. He negotiated from $140 an hour to $220 for two hours. In his factum Counsel for Mr. Faroughi complained that the “escort” asked about the accused age and background. I do not see anything wrong with this exchange as the “escort” was simply cementing the fact that “she” was 14. More importantly, using the criteria set out above from R. v. Mack, this was not a case where the police had to be persistent and make a number of attempts before the accused agreed to commit the offence. The accused did not have to be convinced of anything as he was prepared at the outset to have sexual relations with the underage escort.

Attempts to Disengage

[27] Counsel for Mr. Faroughi relies heavily on the following subsequent exchange: 4:39 p.m., Mr. Faroughi: Nvm I wont be able to come 4:39 p.m., Mr. Faroughi: Sorry 4:39 p.m., the u/c: Stop playing games 4:40 p.m., the u/c: U coming or not [28] Counsel for Mr. Faroughi states that this exchange clearly shows that the police crossed the line and induced the accused, who wanted to walk away, into committing the offence. I appreciate counsel’s point, but when one looks at what transpired earlier in the text conversation and what happened afterwards it is clear that the accused was not induced or compelled to commit the offence. [29] Earlier, at 4:16 p.m., the accused texted, “Nvm cant come sorry”. The response from the escort was a simple, “np bye.” Mr. Faroughi’s involvement would have ended at this point, except Mr. Faroughi 15 minutes later called the “escort.” When the number wasn’t answered Mr. Faroughi texted and said that he could be there in five minutes. This was followed by further negotiation over the price and services. [30] One cannot read tone in texts, but I agree that the texts at 4:39 and 4:40 p.m. themselves indicate that the “escort” was at least aggravated by the accused, and possibly angry, but the texts are not threats. However, there was no follow up by the “escort” after the 4:40 p.m. text. Rather, it was the accused, nine minutes later, who again re-engaged and responded that he was coming. The following exchange ensued: 4:49 p.m., Mr. Faroughi: I’m coming 4:49 p.m., Mr. Faroughi: But no cigarettes 4:50 p.m., the u/c officer: OK…… 4:50 p.m., Mr. Faroughi: If okay 4:50 p.m., Mr. Faroughi: I’ll be there in 20 4:50 p.m., Mr. Faroughi: $220 2 hours 4 times 4:52 p.m., Mr. Faroughi: Okay? 4:53 p.m., Mr. Faroughi: ? 4:54 p.m., Mr. Faroughi: Deal? 4:54 p.m., the u/c officer: Ya that’s fine. [31] Mr. Faroughi texted that he was coming but he was not bringing the cigarettes that the “escort” had requested, which is contrary to his assertion at trial that he only went to the hotel because the text “Stop playing games” “U coming or not” made him afraid and he felt compelled to comply. He clearly did not feel compelled to bring the cigarettes as requested. The accused then texted the “escort” that it was $220 for two hours and four times and he ensured that the “escort” accepted that this was the deal. This subsequent discussion about the rate and services again betrays any suggestion that the accused was afraid or induced into committing the offence.

Was the Accused in a vulnerable state?

[32] Counsel for Mr. Faroughi submitted that the police must have known from the subsequent exchanges that the accused was nervous because he did not have cash on him, and he went to the wrong hotel. It is evident from the texts that the accused did not have cash on hand when he started this text exchange and that he went to the wrong hotel. However, assuming that one could say that these factors indicated that accused was nervous, and I am not sure that this is evident from the text exchanges, being nervous is a far cry from being in a vulnerable state and from the police preying on that vulnerability to induce the accused into committing an offence. I also find the “escort’s” comment “your killing me” when the accused was running late innocuous and non-threatening. Furthermore, one cannot lose site of the fact that it was the accused who travelled to the hotel and it was the accused, having gone to the wrong place, persisted in going to the right hotel and meeting the escort.

Conclusion

[33] 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. [34] The accused was not entrapped. The application is dismissed.

The Honourable Justice H. Leibovich

Released: January 29, 2020

Footnotes

[^1]: The term means girlfriend experience and allows the customer to kiss and make out with the escort.