Her Majesty the Queen v. Sivaratnam Sinnappillai

COURT FILE NO.: 17-13

DATE: 2020-11-17

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: November 9, 2020

Second preliminary ruling on the defendant’s entrapment application

C. BOSWELL J.

THE APPLICATION

[1] About five years ago, officers of the York Region Police Service ran several iterations of an investigation they dubbed “Project Raphael”. They had a reasonable basis to suspect that the escorts section of a now-defunct website called Backpage.com was a place where the sexual services of underaged females were being bought and sold.

[2] The police posted a fake advertisement for the sexual services of an 18-year-old female. When prospective clients texted the number included in the ad, they were told by the escort that she was in fact just 15. If they nevertheless arranged to pay to have sex with her, they were directed to a hotel room and arrested on arrival. To be clear, there never was a 15-year-old escort. The escort was really an adult male police officer.

[3] Project Raphael led to charges being laid against numerous individuals for internet child luring. Mr. Sinnappillai was one of those individuals. Some of those individuals were later convicted of those charges, including Mr. Sinnappillai. He was convicted by a jury in July 2019.

[4] Many of those convicted of offences laid during Project Raphael, including Mr. Sinnappillai, cried foul. They said that through Project Raphael the police manufactured, as opposed to investigated or detected, crime. They sought stays of the proceedings against them based on the doctrine of entrapment.

[5] Until recently, trial judges had uniformly dismissed all entrapment applications arising from Project Raphael cases. On October 8, 2020, however, one judge reconsidered his prior ruling and reversed it, concluding the police had indeed crossed the line into entrapment based on the design of Project Raphael. See R. v. C.D.R., 2020 ONSC 5030 (“C.D.R. 2”). He stayed the charges against the accused in that case.

[6] I dismissed Mr. Sinnappillai’s entrapment application by way of a ruling dated April 7, 2020, reported at 2020 ONSC 1989. His counsel asks that I too reconsider my prior ruling and reverse it, based on cases reported after I rendered my decision. The Crown submits that I should dismiss Mr. Sinnappillai’s request out-of-hand.

[7] There are a number of issues that I will need to address in light of Mr. Sinnappillai’s request, including:

(i) Mr. Sinnappillai was convicted in July 2019. Why has this case taken so long to get to this stage?

(ii) What was the basis for my ruling dismissing Mr. Sinnappillai’s entrapment application?

(iii) What principles govern the re-opening of applications already argued and determined?

(iv) On what basis does Mr. Sinnappillai assert that his entrapment application should be re-opened and reconsidered? And finally,

(v) Should Mr. Sinnappillai’s application be reconsidered?

[8] Before I delve into the live issues, I will provide some brief context to Project Raphael and the charges laid against Mr. Sinnappillai.

THE CONTEXT

[9] In 2016, Backpage.com was a thriving classified ads website, similar to Craigslist or Kijiji. It was distinguished from other classified websites by the fact that it had an “adult” section. Within that section was a subsection devoted to escort services; in other words, prostitution.

[10] Inspector Ryan Hogan testified during Mr. Sinnappillai’s trial that York Region does not have a downtown core to speak of. Prostitution in York Region generally occurs in adult entertainment clubs, massage parlours and hotel rooms. Backpage.com was a site commonly used by people looking to make contact with sex workers. Arrangements could be made through those contacts to meet at hotels or other locations for the exchange of money for sex.

[11] York Region police had reasons to believe that Backpage.com was being used for the purchase and sale of the sexual services of females under the age of 18. They designed Project Raphael, in Inspector Hogan’s words, to identify and apprehend individuals seeking to purchase or engage in sex with juvenile sex trade workers.

[12] Project Raphael was run a number of times. The iteration that Mr. Sinnappillai got caught up in was run in March 2016. Inspector Hogan posed as a young female escort named Kathy. The police posted the following advertisement in the adult section of Backpage.com:

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

[13] 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.

[14] Kathy directed Mr. Sinnappillai to a local hotel room, where police officers sat in wait. He was arrested upon arrival and charged with internet child luring and with communicating for the purpose of obtaining the sexual services of a person under the age of 18. Convictions followed in July 2019.

THE LIVE ISSUES

(i) Why has this case taken so long to get to this point?

[15] Mr. Sinnappillai was convicted sixteen months ago. The Court of Appeal recently established a presumptive ceiling for post-verdict delay of five months. In other words, they determined that a convicted offender is entitled to be sentenced within five months of conviction, pursuant to s. 11(b) of the Charter of Rights and Freedoms. See R. v. Charley, 2019 ONCA 726.

[16] Defence counsel was diligent in commencing her entrapment application. But she was aware that there had been numerous prior rulings on entrapment applications arising from Project Raphael convictions. At least one was appealed to the Court of Appeal. Counsel’s preference was to wait until the Court of Appeal ruled on the entrapment issue before proceeding to argue her application. In the result, and with the consent of the Crown and an 11(b) waiver, Mr. Sinnappillai’s entrapment application – and his sentencing more generally – were deferred pending direction from the Court of Appeal.

[17] In the spring of 2020, still without the benefit of an appellate ruling on Project Raphael, the Crown elected to move to dismiss Mr. Sinnappillai’s entrapment application and get on with his sentencing. She argued that I should respect and follow other trial court’s rulings that concluded the police did not entrap targets through the operation of Project Raphael.

[18] According to the Canadian entrapment doctrine, the police may offer a target an opportunity to commit a crime if they either have a reasonable suspicion that the target is involved in criminal activity or if the opportunity is offered in the context of a bona fide investigation. An investigation is “bona fide” where the police have a reasonable suspicion that a particular crime is being committed in a specific location and where they have a genuine purpose of investigating and repressing crime. See R. v. Ahmad, 2020 SCC 11, at para. 20.

[19] The thrust of Mr. Sinnappillai’s entrapment application was that Project Raphael was not a bona fide investigation.

[20] At least five trial judges have previously determined that Project Raphael was a bona fide investigation. Prior to October 2020, all entrapment applications raised in relation to charges arising from Project Raphael were dismissed on that basis. In the result, I agreed with the Crown’s position and on April 7, 2020 dismissed Mr. Sinnappillai’s application, at least to the extent that it relied on the assertion that Project Raphael was not a bona fide investigation.

[21] At the time I released my ruling in April 2020, the normal operations of the court were suspended, due to the COVID-19 pandemic, by order of the Chief Justice dated March 15, 2020. Mr. Sinappillai was remanded to June 3, 2020 in accordance with the Chief Justice’s order. He was subsequently remanded to July 7, 2020 and to September 16, 2020 in accordance with further orders of the Chief Justice.

[22] The September 16, 2020 return date was pre-empted by counsel. In a teleconference conducted on September 11, 2020 defence counsel indicated her intention to apply to re-open my April 7, 2020 ruling. November 9, 2020 was fixed for the argument of that application, again with a continuing s. 11(b) waiver.

(ii) What was the basis for my ruling on April 7, 2020?

[23] As I noted in my prior ruling, Canadian 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 CanLII 84 (SCC), [1991] 1 S.C.R. 449 at para. 14.

[24] An accused person bears the onus to establish that he or she was entrapped. He or she can meet that onus by establishing, on a balance of probabilities, that either:

(a) the authorities provided him or her with an opportunity to commit an offence without a reasonable suspicion that he or she was 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, the authorities went beyond providing an opportunity and induced the commission of an offence.

See R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903

[25] It has never been asserted, to my knowledge, that the police had a reasonable suspicion that any particular individual charged in the course of Project Raphael was engaged in the criminal activity under investigation. Instead, entrapment applications related to Project Raphael have uniformly been based on the assertion that it was not a bona fide investigation. More particularly, the assertion has always been that the location targeted by the project was not identified with sufficient precision. It targeted too wide a base and was, in effect, random virtue testing. Random virtue testing is expressly prohibited by the entrapment doctrine.

[26] At least five trial judges ruled on entrapment applications arising from Project Raphael convictions prior to my April 7 ruling. See 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. Four of these five prior rulings emanated from judges of this court.

[27] In each case, the trial judge ruled that Project Raphael was a bona fide police investigation. Each application was dismissed.

[28] The Crown’s motion to dismiss Mr. Sinnappillai’s entrapment application was grounded in the doctrines of stare decisis and judicial comity. Both are conventions of legal precedent. Both promote consistency, certainty and predictability in the law, which in turn enhance the reputation of the common law. See David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (C.A.) at paras. 119-120.

[29] Superior Court judges are bound to follow vertical precedents – in other words, decisions of appellate courts, including the Divisional Court, the Court of Appeal and the Supreme Court of Canada. Superior Court judges are not, strictly speaking, bound to follow horizontal precedents, meaning decisions emanating from judges of concurrent jurisdiction. But the conventions of stare decisis and judicial comity compel Superior Court judges to follow horizontal precedents unless they are plainly wrong. See R. v. Scarlett, 2013 ONSC 562 at para. 43.

[30] I could not say that the uniform decisions of my colleagues on the bona fides of the Project Raphael investigation were plainly wrong. In the result, I determined that, by convention of horizontal precedent, I was compelled to follow them. I therefore concluded that Project Raphael was a bona fide investigation, which undermined Mr. Sinnappillai’s application. I dismissed his application, though I recognized that he would continue to have the opportunity to argue that, despite the bona fide nature of the investigation, the police went further than offering him the opportunity to commit the charged offences and actually induced him to do so.

[31] Mr. Sinnappillai has not pursued the inducement argument.

(iii) What principles govern the re-opening of applications already decided?

[32] The tradition in this court has always been that applications are argued, decisions are rendered and the parties move on. They either live with the result or they appeal it to a higher court. There are compelling reasons for this tradition. The two most compelling are:

(a) The efficient use of limited resources. The administration of justice has relatively scarce resources. Hearing and deciding cases once is enough of a strain on those resources. To have to revisit, rehear and redecide the same issues more than once is an unacceptable strain; and,

(b) The reputation of the administration of justice would be significantly undermined if judges routinely reconsidered cases already decided and changed their minds. The integrity of judicial decisions would be seriously jeopardized.

[33] Having said that, our law recognizes that decisions made during the course of judicial proceedings may be revisited if, while those proceedings remain extant, there has been a material change in circumstances that affects the result. See R. v. Li, 2012 ONCA 291 and R. v. La (Appeal by Vu), [1997] 2 S.C.J. No. 30.

[34] A material change is a change that one can say might reasonably have affected the original result if known at the time. See R. v. St. Cloud, 2015 SCC 27 at para. 137 and Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670.

[35] To be clear, “if known” includes information actually known, or which could have been discovered through the application of reasonable diligence.

(iv) Mr. Sinnappillai’s Allegation of a Material Change

[36] Mr. Sinnappillai asserts that the material change justifying the re-opening of his entrapment application is found in two rulings made after April 7, 2020.

[37] The first is the Supreme Court’s ruling in R. v. Ahmad, as above, which was released May 29, 2020. The focus of Ahmad was the application of the entrapment doctrine in the context of “dial-a-dope” operations. The court, however, made a number of comments relating to the broader application of the entrapment doctrine. Of particular interest to defence counsel are the court’s remarks about police investigations conducted in virtual spaces.

[38] Mr. Sinnappillai’s counsel concedes that Ahmad does not fundamentally alter the existing entrapment doctrine. But, she submits, it changes the landscape in relation to police sting operations undertaken in virtual spaces. In her view its impact is significant enough, on its own, to justify re-opening Mr. Sinnappillai’s entrapment application and ordering a full hearing.

[39] The second ruling of note is CDR 2, released October 8, 2020.

[40] On November 28, 2019, De Sa J. dismissed an application to stay proceedings against an accused on the basis that he was entrapped by the design of Project Raphael. See R. v. C.D.R., 2019 ONSC 6894 (“C.D.R. 1”). He explicitly found that the police had defined the location targeted by their investigation with sufficient precision that it was a bona fide investigation. C.D.R. 1 was one of the horizontal precedents I relied on and followed when I dismissed Mr. Sinnappillai’s entrapment application in April.

[41] On October 8, 2020, however, De Sa J. reversed his earlier decision. Having had the benefit of the Supreme Court’s ruling in Ahmad, De Sa J. determined that his earlier views about Project Raphael were wrong. He found that the design of Project Raphael cast too broad a net in effectively targeting any individuals visiting the escort section of Backpage.com. In his view, informed by Ahmad, the police conducted random virtue testing. He stayed the proceedings against the accused.

[42] Mr. Sinnappillai’s counsel relies on C.D.R. 2 in two respects. First, as confirmation that the ruling in Ahmad makes a difference – that it is a material change in circumstances. Second, to shake the foundation upon which my earlier ruling was based. In other words, she argues that I am no longer compelled, by the conventions of horizontal precedent, to follow any particular earlier decision, since there are now decisions going both ways.

(v) Should I re-open Mr. Sinnippillai’s entrapment application?

The Positions of the Parties

[43] My earlier ruling dismissing Mr. Sinnappillai’s entrapment application was the result of following the conventions of horizontal precedent. The application did not reach the point where evidence was adduced about the design of Project Raphael. I made no independent determination that Project Raphael was a bona fide investigation. I simply concluded that other judges who had found Project Raphael to be a bona fide investigation were not plainly wrong.

[44] Mr. Sinnappillai’s counsel submits that the guidance provided by the Supreme Court in Ahmad should persuade me to revisit my conclusion that prior rulings were not plainly wrong; she contends they were. And to buttress that submission she can now point to Justice De Sa’s reconsideration in C.D.R. 2.

[45] At the very least, given that there are now cases that go both ways on the bona fide nature of Project Raphael, defence counsel contends that the pull of horizontal precedent is no longer as strong. She says I ought to conclude that a material change in circumstances has occurred that warrants a full evidentiary hearing.

[46] The Crown asserts that Ahmad does not change the law of entrapment. It should not, in any way, in the Crown’s submission, undermine this court’s confidence in prior rulings on the bona fide nature of the Project Raphael investigation.

[47] The Crown further submits that Justice De Sa’s decision to revisit and reverse his earlier findings about Project Raphael in C.D.R. 2 was in error. Crown counsel contends that Justice De Sa situated his analysis within the bona fide investigation framework set out in R. v. Mack. But he strayed out of that framework and found that the police should have taken steps to determine if they had a reasonable suspicion of Mr. Sinnappillai. He was wrong to do so, the Crown asserts, because the bona fide investigation prong of the entrapment doctrine requires only that the police have a reasonable suspicion about criminal activity at a location. Provided the police have defined the location with sufficient precision, it is open to them to present opportunities to commit a crime to individuals at that location, without having a reasonable suspicion about the individuals themselves. The Crown urges the court to conclude that C.D.R. 2 is plainly wrong and continue to follow the remainder of the prior rulings on this issue.

[48] In short, the Crown urges the court to dismiss Mr. Sinnappillai’s application.

Discussion

[49] Mr. Sinnappillai is not asking that I reverse my earlier decision and immediately grant his entrapment application. Instead, he wants me to re-open the issue and allow him to adduce evidence about Project Raphael and ultimately make my own independent determination as to whether Project Raphael was a bona fide investigation.

The Bottom Line

[50] For the reasons that follow, I conclude that Ahmad does not alter the entrapment doctrine in any way. It does, however, provide helpful guidance to trial judges faced with determining whether a police investigation conducted in a virtual space was bona fide as that term is understood in the context of the entrapment doctrine. I am not satisfied, however, that this guidance, on its own, is the type of material change that would justify the re-opening of Mr. Sinnappillai’s entrapment application.

[51] On the other hand, Justice De Sa’s reconsideration and reversal of his prior decision in C.D.R. 2 is a material change that, in my view, does justify re-opening Mr. Sinnappillai’s application.

Ahmad Does not Alter the Entrapment Doctrine

[52] I have given considerable thought to how much analysis I ought to undertake in relation to the Supreme Court’s ruling in Ahmad. I have decided that, on balance, I need to say very little about it.

[53] There is no conflict between counsel about whether the Supreme Court’s ruling altered the entrapment doctrine as it was settled in R. v. Mack and affirmed in R. v. Barnes. It did not. Indeed, the majority in Ahmad expressly stated, at para. 23:

We see no reason to alter this carefully calibrated balance struck in Mack and affirmed in Barnes. The entrapment framework has proved workable for decades in a variety of contexts, including drug trafficking…It has stood the test of time, furnishing a principled, stable and generally applicable doctrine that is fully capable of adapting to a variety of circumstances and responding to the evolution of crime and police tactics. No principled reason supports departing from it. (Internal citations omitted).

[54] Defence counsel does not argue that the court’s review of the principles of the entrapment doctrine supports the assertion of a material change in circumstances. She focuses instead on what the court had to say about police investigations occurring in virtual spaces.

[55] There has never been a suggestion that the police had a reasonable suspicion that Mr. Sinnappillai was personally engaged in criminal activity. The contention has always been that they had a reasonable suspicion that juvenile prostitution was occurring in a virtual location – the escort section of Backpage.com. Defence counsel asserts that Backpage.com was a virtual location not defined with sufficient precision to support the conclusion that it was a bona fide investigation. She says that comments made by the majority in Ahmad support her position and provide the change in circumstances necessary to justify re-opening the entrapment application.

[56] I do not accept that the concerns voiced by the majority in Ahmad about police investigations in virtual spaces constitute a material change in circumstances. It is unnecessary, however, that I explain why because I am satisfied that C.D.R. 2 is a material change that justifies re-opening Mr. Sinnappillai’s application.

The Reversal in R. v. C.D.R. 2

[57] The Crown urges me to reject Justice De Sa’s analysis in C.D.R. 2 as plainly wrong. If I do so, the argument goes, I could continue to follow the horizontal precedents that otherwise uniformly found that Project Raphael was a bona fide investigation.

[58] But whether I agree or disagree with Justice De Sa’s recent decision is not, in my view, the point. The question is whether the appearance of that decision constitutes a material change in circumstances.

[59] To determine if C.D.R. 2 is a material change I must consider whether it likely would have affected my decision had I known about it in April 2020. I conclude that it would have.

[60] As I explained, my decision was based on the application of horizontal precedent. I found that prior decisions about Project Raphael had uniformly determined that it was a bona fide investigation. I concluded that I could not say those decisions were plainly wrong and on that basis I elected to follow them and to dismiss Mr. Sinnappillai’s application without a full hearing.

[61] The bedrock of my prior ruling has now been cracked. If I had C.D.S. 2 when I was considering my prior ruling, I would have been faced with decisions on the bona fide nature of Project Raphael that went both ways. And I expect that in those circumstances, rather than offer an opinion about what prior decisions were rightly or wrongly decided, I would have concluded that the most reasonable course of action would be to hear evidence and make my own independent determination about the bona fide nature of the investigation.

[62] That being the case, the appropriate course of action is now, in my view, to re-open the entrapment application, to permit an evidentiary record to be adduced (focussed on the bona fide investigation issue) and to render a decision based on that record.

Boswell J.

Released: November 17, 2020