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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 202001008

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C.D.R.

Applicant

Gemma Sang, for the Crown

Richard Litkowski, for the Applicant

HEARD: March 6, 2020 in person, and March 26 and September 2, 2020 by teleconference

REASONS FOR DECISION

DE SA J.:

Overview

[1] The Applicant, C.D.R., was found guilty on July 29, 2019 on an indictment alleging three offences under Sections 172.1, 172.2, and 286.1 of the Criminal Code. On November 28, 2019, I dismissed an application to stay the proceedings on the basis of entrapment.[^1] A detailed account of the relevant facts as they pertain to the current application can be found in that decision.

[2] On February 14, 2020 (2020 ONSC 645), after hearing submissions, I declared the relevant mandatory minimum sentencing provisions unconsitutional.

[3] On May 29, 2020, the Supreme Court of Canada released R. v. Ahmad, in which the Court reviewed the law of entrapment in the context of “dial-a-dope”operations.[^2]

[4] As a result of the release of the decision in Ahmad, I asked the parties to address the impact, if any, of Ahmad on the entrapment analysis in this case.

[5] I have considered the parties’ submissions. I have also considered the Supreme Court’s analysis in Ahmad as they pertain to the facts of this case. Given the clarifications made in Ahmad, I find the police actions here exceeded the standards of permissible state conduct. Accordingly, a stay of the charges is warranted.

[6] These are the reasons for my decision.

Ahmad and Williams

[7] Entrapment can be made out in two ways:

(i) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry: “opportunity-based entrapment”; or

(ii) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, the authorities go beyond providing an opportunity and induce the commission of an offence: “inducement-based entrapment”.

[8] In Ahmad and Williams, the appeals centered on the first branch of the doctrine – that authorities must not provide an opportunity to commit an offence without acting with reasonable suspicion or as part of a bona fide inquiry.

[9] Both Ahmad and Williams involved police investigations into “dial-a-dope” schemes in Toronto. The facts of Ahmad and Williams are strikingly similar – the police made a call, an opportunity to traffic drugs was provided, an in-person exchange of drugs for money took place, then the appellants were arrested and charged with drug-related offences.

[10] In both cases, the information the police had prior to placing the call amounted to: (1) a name; (2) a phone number; (3) an allegation that the person behind this number was dealing drugs. In both cases, this information came from anonymous, unsubstantiated tips of uncertain reliability. Despite these similarities, the majority of the Supreme Court of Canada found that Mr. Williams was entrapped but Mr. Ahmad was not.

[11] In the case of Ahmad, the Court found that the initial conversation between the undercover and Mr. Ahmad was sufficient to corroborate the tip prior to the police inviting Mr. Ahmad to commit the offence. In the case of Williams, however, the Court found that the police did nothing to substantiate the lead before asking Mr. Williams for drugs. In the absence of any corroboration for the tip, the Court held that the police were not entitled to solicit drugs from Mr. Williams (invite the commission of the offence).

[12] In analyzing the two factual situations, the Supreme Court took the opportunity to clarify the requisite standard to be applied in assessing a claim of entrapment under the first branch of the doctrine (opportunity-based entrapment). The Court explained at para. 42:

The question will always be the same: are there objective factors supporting a reasonable suspicion of drug trafficking by the individual answering the cell phone when police provide the opportunity to commit such a crime? Those factors may relate in part to reasonable suspicion of the individual, or of the phone number itself, or to both. [Emphasis added]

The Requirement for Reasonable Suspicion

[13] The standard of reasonable suspicion calls for an objective assessment of the information the police actually had before offering an individual an opportunity to commit a crime.

[14] A “reasonable suspicion” requires a “constellation of objectively discernible facts:” giving the officer “reasonable cause to suspect” that a certain kind of crime was being committed by a particular person or in a particular place. (Ahmad, footnote 2)

[15] This constellation of factors must objectively indicate the possibility of the criminal behavior under investigation. Mere hunches and intuition will not suffice (R. v. Barnes, 1991 CanLII 84, (SCC), [1991] 1 S.C.R. 449, at p. 460.) An officer’s training or experience, however, can make otherwise equivocal information probative of the presence of the specific criminal activity (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47.)

[16] When an objectively grounded suspicion of criminal activity attaches to a “sufficiently particularized constellation of factors” (Chehil, at para. 30) like those relating to an individual phone number, a specific person, or a particular location, the police decision to invite the commission of an offence will be justified.

[17] Providing individuals with the opportunity to commit offences without the foundation of a reasonable suspicion unacceptably increases the likelihood that people will commit crimes when they otherwise would not have. Random virtue testing unduly increases the risk that individuals who would not otherwise commit offences will become enticed into criminal activity. As the Court explained in Ahmad, this approach is not an appropriate use of the state’s resources. As the Court explained at para. 28:

… Random virtue testing therefore violates the principle that it is wrong for the police to manufacture crime because it “prey[s] on the weakness of human nature” to entice individuals into offending (R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897, at para. 58, per Lord Hoffmann). Marginalized people, with the limited resources they possess, will rarely, if ever, be able to meet the high burden of proving bad faith. There will rarely be evidence of intentional racial profiling or targeting of the vulnerable. Conversely, the test in Mack — grounded in reasonable suspicion — is attainable for everyone, designed as it is to accommodate the “qualities of humanness which all of us share” (Mack, at p. 940). It seeks to protect the justice system and preserve the rule of law by ensuring that all individuals, predisposed or not, are protected from improper police conduct (Mack, at p. 961). [Emphasis Added].

Virtual Spaces

[18] The majority acknowledged that virtual locations like phone numbers or message boards on websites can qualify as places over which the police can have reasonable suspicion. However, a key requirement is that “the virtual space in question must be defined with sufficient precision”. (Ahmad, at para. 41)

[19] The Court pointed out that virtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives, because of the breadth of some virtual places (for example, social media websites), the ease of remote access to a potentially large number of targets that technology provides law enforcement, and the increasing prominence of technology as a means by which individuals conduct their personal lives. The Court commented at paras. 37-39:

It follows that state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space. Technology and remote communication significantly increase the number of people to whom police investigators can provide opportunities, thereby heightening the risk that innocent people will be targeted. Online anonymity allows police to increasingly fabricate identities and “pose” as others to a degree that would not be possible in a public space like the Granville Mall. And they can do so anytime and anywhere, since cell phones are a 24/7 gateway into a person’s private life. Individuals must be able to enjoy that privacy free from state intrusion, subject only to the police meeting an objective and reviewable standard allowing them to intrude (see Barnes, at p. 481, per McLachlin J., dissenting but not on this point).

Section 8 jurisprudence recognizes that at the “heart of liberty in a modern state” is the need to “set a premium” on the ability of its citizens to carve out spaces in their lives, sanctuaries where they may interact freely, unhindered by the possibility of encounters with the state …

Relatedly, the entrapment doctrine ensures Canadians can “go about their daily lives without courting the risk that they will be subjected to the clandestine investigatory techniques of agents of the state” (Barnes, at p. 480, per McLachlin J., dissenting). It is therefore important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime. As Lamer C.J. noted in Barnes, at pp. 462‑63, a reasonable suspicion can attach to a place only if it is defined with sufficient precision and “in many cases, the size of the area itself may indicate that the investigation is not bona fide.” Given that such an inquiry hinges on the presence of reasonable suspicion, the location must be “sufficiently particularized” (Chehil, at para. 30; see also S. Penney, “Standards of Suspicion” (2018), 65 Crim. L.Q. 23, at pp. 24 and 26). [Emphasis added]

[20] In deciding whether the police have “reasonable suspicion” in relation to a particular virtual space, the majority indicated that the following factors may be helpful: the seriousness of the crime in question; the time of day and the number of activities and persons who might be affected; whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location; the level of privacy expected in the area or space; the importance of the virtual space to freedom of expression; and the availability of other, less intrusive investigative techniques. See Ahmad, paras. 41-42.

Application to the Facts of this Case

[21] In this case, the Crown takes the position that the “Escort” section of Backpages is a circumscribed area within which it was objectively reasonable for police to suspect that juvenile prostitution offences were occurring. Given the extensive training and experience of the undercover officers, they had ample reason to believe child prostitution was taking place in York Region and Backpage.com was the location being used for the commission of those offences. In short, Backpage.com (specifically the “Escort” section) was known to the police as the website being used in York Region to buy and sell children for sex as of 2017.

[22] I agree with the Crown that the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com. As noted in my previous decision, I also find the decision to investigate Backpage.com for individuals seeking underage prostitutes was a legitimate police initiative. I agree with the Crown that the police must be given considerable latitude in investigating criminal activity. This is particularly true where the crimes are serious and are otherwise difficult to investigate. The Supreme Court addressed the particular concerns raised with child exploitation on the internet in R. v. Mills, 2019 SCC 22, at para. 23:

This Court has recognized that children are especially vulnerable to sexual crimes (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 2); that the Internet allows for greater opportunities to sexually exploit children (R. v. Morrison, 2019 SCC 15, at para. 2); and that enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 66, citing Laskin J.A. in R. v. Budreo (2000), 2000 CanLII 5628 (ON CA), 46 O.R. 481 (C.A.)). This leads me to conclude that, on the normative standard of expectations of privacy described by this Court (Tessling, at para. 42), adults cannot reasonably expect privacy online with children they do not know. That the communication occurs online does not add a layer of privacy, but rather a layer of unpredictability.

[23] In my view, the police were justified in conducting an investigation into ongoing juvenile prostitution on Backpage.com given the information available to them.[^3]

[24] However, while juvenile prostitution was clearly occurring on the website, Backpage.com was not a website or “place” dedicated to underage prostitution. Rather, while Backpage.com was known by police to be associated with juvenile prostitution, the evidence indicates that even within the Escort section, the overwhelming majority of ads and traffic did not relate to men seeking sexual services from underage girls. On the contrary, the evidence indicates that most men were seeking sexual services from women who were of legal age.

[25] The situation here is not like the situation in Mills where the undercover officer held himself out to be a 14-year old girl at the outset, and accordingly could reasonably suspect the person contacting the ad would be looking for an underage girl. Here the person contacting the ad was not “known” or even “reasonably suspected” to be looking for a girl who was underage.

[26] While the ads posted were created to attract individuals that were looking to purchase sexual services from younger women, the original ad specifies that Michelle was 18 years old. The female officer pictured in the ad also looks to be much older than 18 years old. The female officer used in the ad photos was actually in her thirties at the time the photograph was taken.

[27] Given these features of the ad, there would be no reasonable basis to infer the caller contacting the ad would be looking for an underage girl. In fact, DC MC confirmed that most males contacting the ad and had no interest in continuing with the conversation once they learned that “Michelle” was an underage girl.

[28] Turning to the text messages, DC MC did not state that “Michelle” was underage at the outset of the conversation. Nothing in the original texts by the Applicant would indicate the Applicant was looking for an escort who was under the age of 18. All of the initial communications between the Applicant and the undercover officer seemingly related to obtaining sexual services from a girl who was of age.

[29] It was almost 27 minutes into the conversation before the undercover revealed that “Michelle” was 15 years of age. This revelation was made by the undercover after already making arrangements with the Applicant to provide sexual services at a specified cost. When considered in this context, the undercover officer’s initial texts inviting the Applicant to purchase sexual services encouraged or enticed the Applicant into committing the offence prior to having any suspicion that the Applicant was involved in the crime under investigation. The “bait and switch” approach used by the police here, in my view, is problematic and raises clear entrapment concerns.

[30] I accept that the police did not intend to mislead potential targets with the original ad, or with the photograph used. Backpage.com would remove any ads which listed an escort to be underage. The police were forced to use “coded” messages in the ad to draw in potential offenders. The police added phrases like “tight”, “fresh” and “new” with a view to narrowing the pool of individuals that would be drawn to the ad. This was a reasonable way to approach the investigation to reduce the risk of ensnaring unintended targets.

[31] However, in the circumstances, these coded phrases were known by police to draw in a much broader pool of individuals than simply individuals looking for “underage” girls. As the evidence indicates, most males contacting the ad were looking for a female who was not underage.

[32] Given the breadth of the potential pool, in my view, the undercover officer should have done more to satisfy himself that the Applicant was looking for an underage girl before inviting the Applicant to commit the offence. Perhaps, the undercover officer could have disclosed “Michelle’s” age at the outset of the conversation, or asked questions directed at determining whether the Applicant was looking for an underage girl. If the Applicant had made comments suggesting he was looking for an underage girl, the undercover would have been justified in engaging the Applicant with an offer to commit the offence.

[33] As explained in Ahmad, in the context of drug calls, the conversation itself can be used by police to further support a reasonable suspicion if the police have not been able to obtain the requisite reasonable suspicion in advance of placing the call/conversation. The conversation, together with the surrounding circumstances, can assist the police in determining whether the individual is involved in the criminal activity under investigation.

[34] However, in this case, there was nothing in the initial texts between the undercover and the Applicant to suggest the Applicant was looking for an underage girl. In the absence of reasonable suspicion, it was improper for the police to invite the Applicant to commit the offence. As the Court explained in Ahmad at para. 60:

Our point about timing is fundamental. Reasonable suspicion is not formed retroactively. Rather, it is applied prospectively. From its inception, the entrapment doctrine has required that police officers have reasonable suspicion of criminal activity before providing an opportunity to commit an offence. Reasonable suspicion — like any level of investigative justification — can justify an action only on the basis of information already known to police (see, e.g., Swan, at para. 27; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 64; Ormerod and Roberts, at p. 46, fn. 31). It follows that the decision to intrude into an individual’s private life and offer them the opportunity to commit a crime is justified only if the grounds predate the measure. [Emphasis added]

[32] As noted above, providing individuals the opportunity to commit offences without the foundation of a reasonable suspicion unacceptably increases the likelihood that people will commit crimes when they otherwise would not have.

[35] Random virtue testing of this sort violates the principle that it is wrong for the police to manufacture crime because it “preys on the weakness of human nature” to entice individuals into offending (R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897, at para. 58, per Lord Hoffmann).

[36] In this case, the Applicant’s conduct was clearly criminal in nature. He was also clearly willing to participate in the criminal activity under investigation. However, the question here is not on whether the Applicant was willing or perhaps predisposed to commit the offence. Again, the focus is on the police conduct and the investigative approach.

[37] 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.

[38] While there is no doubt that the Applicant failed the “virtue” test he was subjected to, and committed a crime by accepting the invitation, the police were not entitled to test the Applicant in the manner that they did.

[39] Accordingly, the charges against the Applicant are stayed.

Justice C.F. de Sa

Released Orally: October 8, 2020

[^1]: R. v. C.D.R., 2019 ONSC 4061 and R. v. C.D.R., 2019 ONSC 6894

[^2]: R. v. Ahmad, 2020 SCC 11, Ahmad was heard together with a companion case, R. v. Williams, also decided on the same day.

[^3]: After R. v. Mills, it may be that police would require a prior judicial authorization in advance of conducting similar investigations