NEWMARKET COURT FILE NO.: CR-18-728-00
DATE: 20201215
CORRIGENDA DATE: 20201216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.A.C.
Applicant
S. Kumaresan, for the Crown
D. Lerner, for the Applicant
HEARD: December 3, 2020, by videoconference
REVISED ENTRAPMENT RULING
MULLIGAN J.:
[1] M.A.C. brings an Entrapment Application following his conviction by a jury on January 15, 2020 on a count of child luring under s. 286.1(2) by means of telecommunication pursuant to s. 172.1 of the Criminal Code. If entrapment is found, M.A.C. seeks a stay as the appropriate remedy.
BACKGROUND
[2] The Application was not brought until November, 2020, just prior to the sentencing hearing. The Crown consented to the Application. There were two reasons for the delay. First, the sentencing hearing was delayed because a PSR was ordered, then a psycho-sexual assessment was ordered. During much of this time the courts were shut town for several weeks following the Covid-19 pandemic. Second, counsel for M.A.C. became aware of the October 8, 2020 entrapment decision of de Sa J. in R. v. C.D.R., 2020 ONSC 5030, which I will refer to as C.D.R. #2.
[3] Justice de Sa reversed his earlier entrapment decision, found at R. v. C.D.R., 2019 ONSC 6894 (C.D.R. #1). In a case with facts similar to M.A.C.’s case, de Sa J. found entrapment had occurred. A stay was issued. Justice de Sa reconsidered entrapment in the light of the Supreme Court of Canada’s recent decision in R. v. Ahmad, 2020 SCC 11.
[4] M.A.C.’s conviction was the result of a sting operation mounted by York Regional Police (YRP), known as “Project Raphael”. I will have more to say about this project throughout these reasons. The project resulted in many arrests over the years it was in operation. Several entrapment applications were brought. All were dismissed, including C.D.R. #1. I will discuss several of these cases in this Ruling, including R. v. Haniffa, 2017 ONCJ 780, R. v. Dare (unreported June 22, 2018 - Newmarket CR-16-00002298) and R. v. Sinnappillai, 2020 ONSC 1989. All were decided prior to the Supreme Court’s decision in Ahmad.
Entrapment and its Remedy
[5] The law of entrapment is well settled in Canada. In Ahmad, the court set out the test as follows at para. 15:
Over thirty years ago, this Court’s decision in Mack settled the law of entrapment in Canada. It set out two alternative branches either of which is sufficient to ground an accused’s claim of entrapment and justify a stay of proceedings:
There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides…or, (b) having a 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. [Citations omitted]
[6] In Ahmad, the Supreme Court made reference to its earlier decision in R. v. Mack, 1998 SCJ 9. Entrapment is not a defense to a charge, rather it is an application brought by the offender after a finding of guilt. As the court stated in Mack at para. 149:
In conclusion, the onus lies on the accused to demonstrate that the police conduct has gone beyond permissible limits to the extent that allowing the prosecution or the entry of a conviction would amount to an abuse of the judicial process by the state. The question is one of mixed law and fact and should be resolved by the trial judge. A stay should be entered in the “clearest of cases” only.
[7] In acknowledging that the test was over 30 years old, the court focused on new concerns especially when virtual spaces, such as telephone numbers, are concerned. In M.A.C.’s case, the virtual space is the texting from phones based on escort advertisements posted on the escort section of the internet site: Backpage.com.
[8] M.A.C.’s application relies on the first branch of the test: opportunity-based entrapment.
The Facts of the Case
[9] In his application, M.A.C.’s counsel provided a summary of the facts. It is not necessary to repeat them here. The Crown takes no issue with the summary.
[10] The viva voce evidence at the entrapment hearing came from Detective T. Cober, who was the investigating officer texting M.A.C. while posing as an underage escort.
[11] The evidence of Superintendent T. Truong was also introduced as Exhibit 1 on this hearing. This exhibit consisted of Supt. Truong’s testimony at three earlier trials. First, was his testimony given in R. v. Haniffa at the June 19 and 20, 2017 trial before Kenkel J. His Honour’s entrapment ruling can be found at: R. v. Haniffa, 2017 ONCJ 780.
[12] Second, was his testimony at the preliminary hearing of C.D.R. before the preliminary inquiry judge, Chester J., on October 15, 2018. The trial proceeded before de Sa J. and an entrapment application followed a finding of guilt. Justice de Sa’s first entrapment ruling, after conviction, can be found at R. v. C.D.R., 2019 ONSC 6894 (C.D.R.#1).
[13] Third was his testimony at the Dare trial, on June 18, 2018, before Bird J. Her Honour’s dismissal of the entrapment ruling is R. v. Dare (unreported June 22, 2018 - Newmarket CR-1600002298).
[14] The testimony of Supt. Truong, at these earlier proceedings, provides important context concerning Project Raphael and the use of the Backpage website. Supt. Truong was the architect of this YRP project which first ran in 2014. It was repeated for a few days in the following years 2015, 2016 and 2017. He began the project when he had the rank of detective in 2014.
[15] A brief review of some points in his testimony follows.
Superintendent Truong’s Testimony in R. v. Haniffa
[16] The background to Project Raphael was the Backpage.com website. As Supt. Truong explained[^1]:
…that’s the site that we have identified that has a significant problem with juvenile prostitution. Our investigations have all surrounded Backpage. The information across North America has identified Backpage and we specifically identified Backpage as the website where juveniles were being bought and sold.
[17] Traffic on Backpage increased significantly when Craigslist closed its escort section. Backpage allowed escort ads but only if the poster stated they were 18 years of age or older.
[18] Supt. Truong testified that juvenile prostitution was a big problem in the region. It had moved from the street to online. Juveniles represented a vulnerable population whose victims’ who often came from broken homes. He testified that crimes were being committed against juveniles, not only by pimps but by purchasers.
[19] Supt. Truong testified that with the change to online escort sites, police had to change the way they did things. In 2013, a vice probe was conducted in a project dubbed: “Home for Christmas”. As he explained, Backpage ads were reviewed to see if the poster, stating they were 18, might be younger. As he testified, he identified 31 girls he thought might be working under the age of 18. Of the 31 ads checked, 9 of the escorts were under the age of 18. The average age of entry of those juveniles into prostitution was 14.8 years of age.
[20] As the architect of YRP’s Project Raphael, Supt. Truong did some research on other operations in Canada and considered entrapment issues. As he stated[^2]:
Bayat [R. v. Bayat, 2011 ONCA 778] confirmed to me what I needed to understand from Chiang [R. v. Chaing, 2012 BCCA 85]. It confirmed to me that again, I needed to have a bona fide reason to conduct this investigation. I identified that Backpage was an issue in our community with juvenile prostitution. Bayat also confirmed to me that with the age of the internet with technology these days that the courts have confirmed that police have to evolve with technology and to identify child sex offenders and predators that we need to think outside the box. And these types of crimes obtaining services from a person under 18, the luring charges, …we have to utilize special techniques. And that we needed a reasonable suspicion that there was criminality occurring.
[21] Supt. Truong explained the project as follows[^3]:
So we posted ads on Backpage. Put photographs of some police officers posing as escorts, listing the age of the escort being advertised as 18 years old providing a description, a rate, and a phone number to contact if purchasers were interested to purchase sex. Once purchasers contacted the advertiser, specifically myself that was controlling that telephone number, there was instruction to communicate only by text messaging. Once there was engagement and interest, I would then tell the purchaser that they were communicating with a child. The majority of the men who contacted the ad, the minute they were aware that they were communication with a child they disengaged and didn’t go any further. The minority continued and would facilitate, negotiate a price and a sexual act to purchase the child. They would arrive at the hotel to complete the transaction, that’s when they would be arrested.
[22] Supt. Troung indicated that the project was run for a few days in each of the years under discussion. In 2014, there were 10 arrests; in 2015 there were 22 arrests; and in 2016 there were 53 arrests.
[23] In dismissing the entrapment application in R. v. Haniffa, 2017 ONCJ 780, 2017 OJ 6016, Kenkel J. made the following findings of fact:
- DS Troung was acting pursuant to a bona fide or good faith police project aimed at curbing juvenile prostitution. (Para. 20)
- Juvenile prostitution is a serious problem in the region…the ad he placed here was targeted specifically at that small group. (Para. 22)
- There is no evidence of random virtue testing or conduct that would breach principles of fairness or justice. (Para. 23)
Superintendent Truong’s Testimony in R. v. Dare
[24] Supt. Truong again testified on an entrapment hearing before Bird J. in R. v. Dare. After he posted as 18 years old, he then spoke about texting the age as under 18 years of age in an earlier project, then lowering it in the following years to 16, then 15, then 14. His goal was to target “those men who were purchasing more vulnerable girls or sort of younger girls.” He stated, “we posted at 18, the lowest you can go, the lowest that back page would allow you to post, used content that suggested the girl was inexperienced, new, fresh to the industry.”[^4]
[25] As to Backpage's role in juvenile prostitution he testified that: “Backpage.com is a market leader for sex advertising, so with that came substantial amounts of child prostitution.”[^5]
[26] Justice Bird dismissed the entrapment hearing. She summarized some of Supt. Truong’s evidence at page 7 as follows:
Inspector Truong had a wealth of experience from which to conclude that the escort section of Backpage.com was being used for the purpose of facilitating the criminal offences he was investigating. In my view, he had far more than the necessary reasonable suspicion that this activity was occurring regularly on this website.
Superintendent Truong’s Testimony in R. v. C.D.R.
[27] Supt. Truong testified at the preliminary hearing in R. v. C.D.R. He once again noted that he was mindful of entrapment and any inducements. He agreed there were three categories of responders: some men wanted an adult sexual partner; some men wanted sex with an adult partner, but would not take reasonable steps to ensure they were not having sex with children; and, some men were seeking to have sex with children. He was asked if the ads were insinuating that it was a younger girl. His answer was yes. He was asked if the design of the ad was to convey “coded terms” than the person was under 18. His answer was yes. Once again, he testified that the majority of men did not proceed when the poster indicated an age under 18. He further testified about communicating the age early. He stated, “the intention in the best case scenario is introducing it naturally at the beginning…it’s not present immediately because it’s not natural.”[^6] He was asked that although not everyone on Backpage was looking for sex with people under 18, those people who are looking for sex with children in 2017 would go to Backpage. His answer was yes.
[28] In C.D.R. #1, de Sa J. considered the Project Raphael evidence including the evidence of Supt. Truong and dismissed the entrapment application. He concluded at para. 64:
…in my view, an average person, with both strengths and weaknesses, in the position of the Applicant would not be induced into the commission of the offence…most individuals calling were not interested in having sex with “Michelle” when explained that she was 14 years of age.
Testimony of Detective T. Cober
[29] Det. Cober gave viva voce evidence at this hearing as well as at M.A.C.’s jury trial. He was the officer receiving texts from individuals responding to the Project Raphael posts in the January 2017 project.
[30] As set out in M.A.C.’s Factum at para. 5, the posted Backpage advertisement contained the following description.
New Young n Fresh – 18 Hi guys Im super new n flexible so be gentle please 80 hh 140 fh – in calls near Leslie n Hwy 7 TEXT ONLY 647-792-5108 – duos available https://m.facebook.com/Pandora12345 Poster’s age: 18
[31] The advertisement was accompanied by photographs of a woman, who was actually a female YRP officer in her 20s. No face was shown. She was wearing a tee shirt showing a capital M, which turned out to be from a local high school.
[32] Det. Cober had extensive experience with earlier versions of Project Raphael. He was aware that Backpage would not accept an ad if it said the poster was less than 18 years of age. The ad was designed to suggest the poster was under 18.
[33] The ad generated dozens of calls on January 18 and 19, 2018. M.A.C.’s counsel took the officer through a summary of the extraction report of Det. Cober’s phone. During his texting back and forth to many texters, he introduced that the poster was underage. Counsel noted that age was introduced about 97 times with texters and Det. Cober allowed that it was possible. Of this number, 5 men continued the conversation, made arrangements to meet and were arrested. The vast majority ended the conversation or did not show up. Some threatened to call the police, at least one said that he thought the poster was police.
[34] The actual texts from a phone later determined to be M.A.C.’s are set out in his Factum. As para. 8 states:
On January 18, 2018, the Applicant [M.A.C.] responded to the advertisement, leading to the following conversation (“MC” refers to the Applicant, “TC” refers to Detective Thomas Cober, the undercover officer):
MC (21:28): Send me your rates and services TC (21:29): $ 80 hh $ 140 includes protected sex and oral MC (21:30): Which part of town TC (21:31): Leslie and hwy 7
[35] Therefore, on January 18, 2018, M.A.C. sent two brief texts and Det. Cober sent two brief replies. The texting ended, no meeting was arranged, no age was introduced.
[36] Paragraph 9 of the Factum states:
The Applicant did not continue the conversation on January 18th. [M.A.C.] resumed the conversation on the next day, January 19, 2018:
MC (13:52): Are you working today I don’t see your ad up MC (17:05): Are you available at 5:30 TC (17:08): Yes babe why? MC (17:09): Hh visit TC (17:12): What do you want for the half hour? MC (17:14): What’s available TC (17:17): $ 80 half hour, $140 hour – oral + protected sex MC (17:18): Ok the half hour TC (17:23): When are you ready MC (17:25): Can you do a half hour now MC (17:27): ?????? MC (17:32): Are you available now TC (17:35): Hour TC (18:05): Do u mind if I’m younger than 18? MC (18:07): That’s fine.
[37] As can be seen, on January 19, 2018, M.A.C. resumed the texting. Once again, the texts were brief, and intermittent, over the space of about an hour. M.A.C. asked about services and rates and if the poster was available. On his sixth text, Det. Cober texted: “Do u mind if I’m younger than 18?” M.A.C. replied: “that’s fine”, but no meeting was arranged. M.A.C. discontinued texting for the day.
[38] M.A.C., not Det. Cober, resumed the texting the next day. The evidence at trial showed that the officer raised the topic of the poster’s age several more times stating age 14. Days later a meeting was arranged, and M.A.C. was arrested when he arrived at the meeting location on January 26, 2018.
ANALYSIS
R. v. Sinnappillai
[39] Project Raphael has been the subject of several entrapment applications. As Justice Boswell stated in R. v. Sinnappillai, 2020 ONSC 7038 at para. 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.
[40] In his prior Sinnappillai entrapment decision, Boswell J. dismissed the entrapment application based on stare decisis and judicial comity following prior judicial dismissals from Project Raphael entrapment applications.
[41] But after a consideration of C.D.R. #2, Boswell J. ordered the reopening of the entrapment hearing. He noted that Ahmad did not alter the entrapment doctrine and was not a change in circumstances. But he found that C.D.R. #2 was a material change in circumstances, with authorities now going both ways. That hearing has yet to be concluded.
R. v. C.D.R.
[42] The facts in C.D.R. are strikingly similar to the facts in M.A.C.’s case. But there are differences as to when the poster’s age was introduced into the texting, and as to when arrangements for sexual services were made. Justice de Sa noted in C.D.R. #2, at para. 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 provided 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.
[43] I pause to note that in M.A.C.’s case no arrangements had been made when the officer asked, “Do u mind if I’m younger than 18?” In fact, arrangements to meet for sexual services were not made until the next day when M.A.C. resumed texting.
[44] In C.D.R. #2, de Sa J. granted a stay finding that the officer could have done more to satisfy himself that the Applicant was looking for an underage girl. As de Sa J. stated at para. 32: “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.”
R. v. Ahmad
[45] Justice de Sa’s reconsidered decision was rendered after he considered the Supreme Court of Canada’s decision R. v. Ahmad, 2020 SCC 11. That case covered appeals by Mr. Ahmad and Mr. Williams following their convictions stemming from police “dial-a-dope” operations. The police had an unsubstantiated tip that a phone number was associated with a suspected dial-a-dope operation. The Supreme Court took the opportunity to review entrapment in the context of the emerging world of virtual spaces.
[46] The majority found that in the circumstances, Mr. Ahmad was not entrapped but Mr. Williams was.
[47] When considering the police operation in Project Raphael, the following points drawn from Ahmad assist:
- The law of entrapment is well settled. (Para. 15)
- The criminal landscape has changed dramatically since the seminal entrapment cases R. v. Mack and R. v. Barnes. (Para. 86)
- Police cannot subject anyone to random virtue testing…without reasonable suspicion. (Para. 27)
- Police may present an opportunity to commit a crime only upon forming a reasonable suspicion that … people are carrying out criminal activity at a specific location. (Para. 19)
- A generalized suspicion is not enough. (Para. 48)
- Reasonable suspicion insists on an objective assessment of the information the police had. (Para. 29)
- An investigation is bona fide where the police have a reasonable suspicion over a location or area. (Para. 20)
- To permit police to target wide virtual spaces is inconsistent with Mack. (para. 43)
- There is a fundamental need to balance society’s interests…to avoid indiscriminate and discriminatory police conduct. (Para. 25)
- The virtual space in question must be defined with sufficient precision in order to ground reasonable suspicion. (Para. 41)
- Some crimes are particularly difficult to investigate…such as child luring. (Para. 18)
- The risk is highest for people who are vulnerable or otherwise marginalized. (Para. 28)
[48] As noted, de Sa J. granted a stay after the second entrapment hearing in C.D.R. #2. Because the facts in C.D.R. #2 closely mirror the facts in M.A.C.’s case, a close look at the facts is important. In addition, I will do an independent analysis of whether not the police had reasonable suspicion in mounting Project Raphael.
THE FACTS
[49] It is not necessary to review all of the factual similarities in both cases involving the Backpage escort site; however, I find that there are two important differences.
[50] First, in C.D.R. #2, de Sa J. found that the undercover officer used a “bait and switch” tactic in dealing with C.D.R. His Honour found at para. 29:
…this revelation [of the poster’s age of 15] was made by the undercover officer 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.
[51] As previously noted in M.A.C.’s case, prior to any arrangements to meet for sexual services, Det. Cober asked M.A.C. if he minded if the poster was under 18 years of age. M.A.C. responded: “that’s fine.” In fact, no arrangements were made until the next day when M.A.C., without solicitation, resumed texting.
[52] Second, de Sa J. stated that the undercover officer could have done more to satisfy himself that C.D.R. was looking for an underage girl. As he stated para. 32:
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.
[53] The texting in that case spanned 26 minutes but the conversation only turned to age after C.D.R. confirmed he wanted to meet.
[54] In M.A.C.’s case, Det. Cober brought up the age issue in his sixth text, and the day before arrangements to meet were made. Recall Supt. Truong’s testimony at the preliminary hearing in R. v. C.D.R. about his understanding of the law of entrapment. As to introducing age into the text conversation he testified[^7]:
…the intention in the best case scenario is introducing it naturally at the beginning….it’s not presented immediately because it’s not natural or it’s the way the conversation is going, but your earliest opportunity to introduce the age is the best practice.
[55] In this case, I am satisfied that Det. Cober followed best practices and introduced the age issue at an early opportunity and well before arrangements to meet were made the following day.
Virtual Spaces
[56] I am satisfied that Backpage.com is a virtual space just as a telephone was in Ahmad. But police cannot target wide virtual spaces without reasonable suspicion. A hunch or generalized suspicion is not enough. In this case, the virtual space was narrowed. Not everyone clicking on Backpage would see these ads. As Justice Bird noted in Dare, someone wanting to buy a car would never see these ads. The ads would be seen only if the user clicked on the Escort section and scrolled down to ads for escorts in the 18 years of age range. In this virtual space, by placing ads on Backpage.com, police were seeking to investigate serious crimes: child sexual exploitation.
Reasonable Suspicion
[57] Justice deSa considered the facts before him and concluded at para. 34, “In the absence of reasonable suspicion, it was improper for the police to invite the Applicant to commit the offence.”
[58] But His Honour agreed 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, and that the crimes being investigated were serious: see para. 22. And further noted at para. 29, “that police did not intend to mislead potential targets with the original ad or with the photograph used.”
[59] In Ahmad, the Supreme Court declined to abandon the “reasonable suspicion” standard for scrutinizing police conduct in such projects. A reasonable standard is more than a hunch and more than a “generalized” suspicion. It compels the police to disclose objective evidence that is amenable to exacting review: see para. 30.
[60] In objectively assessing the evidence, Project Raphael can be examined in three respects. First, what YRP knew about juvenile prostitution in the region; second, how the project was designed; and, third, how the project was implemented.
What York Regional Police Knew
[61] Supt. Truong gave evidence at earlier trials about the growing problem of juvenile prostitution in the region. He had considerable knowledge, training, and experience in child exploitation cases. He said that prostitution had moved from the street to the internet through sites like Backpage.com. The 2013 project “Home for Christmas” involved a vice probe of Backpage ads that could be seen as suggesting, through coded language, that juvenile prostitutes were being offered for hire. Of the 31 ads deemed suspicious, 9 underage girls were discovered.
[62] Because Backpage would not accept ads for anyone under 18, police looked for ads indicating that the poster was 18 and then looked to see if coded words like “fresh” or “new to the industry” would appear.
How the Project was Designed
[63] As the architect of the project, Supt. Truong was a detective in 2014. He designed ads and used photos that could infer that the poster might be less than 18 years of age. Coded words were used. In this case the ad said the poster was 18, as required by Backpage, but added “New, Young n Fresh” and “super new n flexible.” Supt. Truong had reviewed cases at the time on the law of entrapment in Canada. He knew he needed a bone fide reason to investigate this online site that had been closely linked to juvenile prostitution. He knew that reasonable suspicion was required and he knew novel techniques were required in the age of the internet. There was no suggestion that the design sought to prey on vulnerabilities, stereotyping or racial profiling. (See Ahmad para. 41)
How the Project was Implemented
[64] Although there were some minor variations over the years, the basic design was this: an undercover officer would place an ad on Backpage.com. Not just anywhere but in the escort section. There were hundreds of ads being placed, so the minimum allowable age of 18, was used. But the ads used coded words that might suggest that the poster was under 18, a child. The photograph was of an adult female officer with no face shown. The ad contained a phone number inviting reply by text only. If an individual replied the officer would role-play about the cost of sexual services, location to meet, etc. As a best practice, at some point early in the texting, the officer would introduce that the poster was younger than 18. Projects in earlier years suggested 16 or 15. In M.A.C.’s case, age 14 was stated when M.A.C. resumed texting the next day. The experience in earlier projects taught Supt. Truong and Det. Cober that many men, in fact the majority, would break off the call when an age under 18 was raised. That was not the group the police were targeting. A small minority of those texters would continue texting, arrange a meeting, attend at a hotel and be arrested.
[65] In my view, the introduction of any age under 18 became a “bright line” in the Project Raphael design. It served to weed out men whose sought out only adult escorts. Those seeking juvenile prostitutes continued to engage. This minority was the very target group that the project sought to investigate.
CONCLUSION
[66] In this entrapment application the onus falls to M.A.C. on a balance of probabilities. I have considered the evidence at this hearing, the submissions of both counsel and their Books of Authorities.
[67] Prior to CDR #2 all previous entrapment applications stemming from Project Raphael were dismissed. But in CDR #2, an entrapment application was granted, and a stay was ordered. Justice de Sa reconsidered his earlier ruling in light of the Supreme Court’s decision in Ahmad. As Boswell J. observed in Sinnappillai, there are now decisions going both ways. I am not bound by stare decisis or judicial comity, therefore my focus is on the facts in R. v. M.A.C. and my own independent assessment of this project as to whether police had a reasonable suspicion in targeting men through the escort section of Backpage.com.
The Facts Distinguished
[68] Despite the similarities in how the project unfolded in R. v. C.D.R. and R. v. M.A.C., I find that there were two important differences in the facts.
[69] First, in R. v. C.D.R., the undercover officer did not raise the age issue until after arrangements to meet for sexual services had been made. The court found that the police had employed a “bait and switch” tactic. That did not happen in R. v. M.A.C. The undercover officer asked if M.A.C. minded if the poster was under 18 years of age. No arrangements for sexual services had been made at that time, and nor were such arrangements made that day.
[70] Second, in R v. C.D.R. #2, the court found that the age issue should have been raised earlier in the texting. In R. v. M.A.C., I find that the age issue was raised early in the texting. It was Det. Cober’s sixth text and it was made clear before any arrangements to meet had been made. Raising the poster’s age early was a best practice according to the evidence of Supt. Truong.
Reasonable Suspicion
[71] In Ahmad the Supreme Court repeated the reasonable suspicion test that had been established in Mack, stating at para 15 that “there is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides…”
[72] The Court recognized the changing landscape with the growth of virtual spaces. It provided guidance on the limits of police investigation in such spaces, but noted that some crimes, such as child luring, are particularly difficult to investigate. Police are not permitted to target wide virtual spaces; furthermore, virtual spaces under review must be defined with sufficient precision to avoid indiscriminate and discriminatory police conduct. A generalized suspicion is not enough, nor is a mere hunch.
[73] In Ahmad, the Supreme Court considered a phone as a virtual space. I am satisfied that a website can also be considered a virtual space. But Project Raphael did not target Backpage at large as a virtual space. In Project Raphael, the focus was narrowed to the escort section, especially focusing on escorts posting as 18 years of age, then using code words that could suggest the poster was younger than 18, and a juvenile.
[74] Backpage would not accept an ad from anyone stating they were under 18 years of age. But through his investigations, Supt. Truong had learned a great deal about juvenile prostitution, which he said was a big problem in the region. The sex trade had moved from the street to online. In 2013, YRP conducted a vice probe into the Backpage escort section. The project was dubbed: “Home for Christmas”. The project focused on 31 ads which possibly suggested the poster was under 18 years old. When investigated, nine posters were found to be juvenile prostitutes. So, it was clear that this escort section of Backpage was a place where juveniles were being made available for some men who were seeking children for sexual services.
[75] As the architect of Project Raphael in 2014, Supt. Truong informed himself about the law of entrapment in Canada. He was aware that police needed reasonable suspicion in any such project. The goal was to curb juvenile prostitution in the region by targeting men who were purchasing children for sexual services online. Best practices called for the undercover officer to reveal early in the texting conversation that the poster was under 18 years of age. According to the statistics from Det. Cober, this proved to be a way to screen out men who only sought sex with adult escorts. He indicated that when a younger age was revealed in texts during this operation in 2017, 92 men out of 97 discontinued the conversation. Five continued texting and arranged a meeting with what was thought to be a juvenile prostitute. When the undercover officer clearly stated an age that was under 18, it was not a coded message; it was blunt, and it was a bright line narrowing the project’s target to the minority of men who were willing to meet to seek sexual services from juveniles.
[76] In my view, Project Raphael was made operational because YPR had well-founded reasonable suspicions about this escort subsection of Backpage.com. In Ahmad, the Supreme Court recognized that virtual spaces, if sufficiently defined, could ground reasonable suspicion. The court also noted that some crimes such as child luring are difficult to investigate.
[77] I am satisfied that YRP’s Project Raphael was grounded in a reasonable suspicion of this virtual space and did not amount to entrapment.
[78] This is not one of the clearest of cases where the remedy of a stay ought to be granted.
[79] Application dismissed.
Justice G. Mulligan
Dated: December 15, 2020
CORRIGENDA
Since the release of this decision on December 15, 2020, counsel have requested, and Justice Mulligan has agreed, that there be a Publication Ban in place on this decision.
Therefore, the name of the defendant in this matter has been removed and identified only by initials, in order to comply with the said Publication Ban.
[^1]: Haniffa, trans. of Supt. Truong, September 19, 2017, p. 44, l. 2 to 7. [^2]: Haniffa, trans. of Supt. Truong, September 20, 2017, p. 26, l. 9 to 25. [^3]: Haniffa, trans, of Supt. Truong, September 19, 2017, p. 40, l. 25 to 35 and p. 41, l. 1 to 8. [^4]: Dare, trans. of Supt. Truong, June 18, 2018, p. 23, l. 24 to 27. [^5]: Dare, trans. of Supt. Truong, June 18, 2018, p.9, l. 19 to 24. [^6]: C.D.R., trans. of Supt. Truong, October 15, 2018, p. 34, l. 8 to 10. [^7]: C.D.R., trans of Supt. Truong, October 15, 2018, p. 34, l. 9 to 11)