COURT FILE NO.: CR-23-94-00AP DATE: 2024/09/16

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HIS MAJESTY THE KING – and – SALAH HASSANPOUR

Counsel: Greg Skerkowski for the Crown Arash Ghiassi, for the Appellant

HEARD: AUGUST 19, 2024

REASONS FOR JUDGMENT On appeal from the decision of Wheeler J. dated March 31, 2023

A. KAUFMAN J.

I. Introduction

[1] Mr. Hassanpour appeals from Justice Wheeler's decision of March 31, 2023. In that decision, Justice Wheeler rejected his application for a stay of proceedings on the grounds of entrapment. Mr. Hassanpour had entered a guilty plea to one count of making sexually explicit material available, in violation of section 171.1(1)(b) of the Criminal Code, as well as two counts of child luring under section 172.1(1)(b). Pursuant to the Kineapple principle, Wheeler J. conditionally stayed two of the charges, ultimately convicting Mr. Hassanpour on a single count of child luring. She imposed a sentence of 448 days of incarceration, followed by two years of probation and additional ancillary orders.

II. Issue

[2] The sole issue in this appeal is whether the applications judge erred in concluding that the undercover officer did not offer the Appellant an opportunity to commit the offence of child luring without possessing a reasonable suspicion beforehand.

III. Legal Framework

[3] Entrapment does not serve as a defense but functions as a doctrine allowing for a conviction to be stayed when investigative conduct is exploitative or corruptive. This doctrine is based on the public's expectation that the police's role is to prevent and investigate crime, rather than generate it. The police should act as investigators, not instigators of crime. Nevertheless, in the case of certain offences, particularly "consent crimes" like drug trafficking and child luring, police must be granted broad discretion in their investigations. These crimes are difficult to detect, and their victims often are reluctant to report them: R. v. Ramelson, 2022 SCC 44, at para 33.

[4] There are two forms of entrapment, but in this case, only the first type—opportunity-based entrapment—applies. Entrapment occurs when police provide an individual with the opportunity to commit an offence without having reasonable suspicion that the individual is already involved in such criminal behavior or without conducting a bona fide inquiry. To avoid leading otherwise law-abiding individuals into temptation, police must have reasonable suspicion or engage in a bona fide inquiry before offering someone the chance to commit a crime. It is improper for police to use their authority to randomly test individuals' virtue: R. v. Mack, [1988] 2 S.C.R. 903, at paras.73-76.

IV. Analysis

[5] This appeal focuses on the initial interaction between an undercover officer and the Appellant. The officer created a ChatIW profile under the username “Lexijade14,” purporting to be a female, age 18, located in Canada. The lowest age a person can enter on the site was 18. The Appellant was present on the site with the username “TorontoM39Hung.” The Appellant was the one who initiated a chat with the officer:

TorontoM39Hung: Hi nice to meet you TorontoM39Hung: Are you attracted to older men? Lexijade14: yea sometimes ..... im 14 tho, not 18 lik I had to put to get in here TorontoM39Hung: That’s okay TorontoM39Hung: Have you hooked up with any older men so far Lexijade14: hmm ..... not relly old TorontoM39Hung: I’d love to be your first one.

[6] The applications judge determined that there were objective factors supporting a reasonable suspicion that the Appellant was involved in child luring during his initial interaction with the officer. The reasonable suspicion standard was objectively met, given the sexualized and anonymous nature of the site, the username “Lexijade14,” the profile age set at 18—the youngest permissible—and the Appellant's inquiry about whether she was attracted to older men. However, the applications judge concluded that the officer did not turn his mind to this issue. Since objectively reasonable suspicion must be accompanied by the officer's subjective belief, the officer could not extend an opportunity for the Appellant to commit the offence at that early stage.

[7] Police may establish reasonable suspicion during a conversation with the target, provided it occurs before offering the opportunity to commit a crime: R. v. Ahmad, 2020 SCC 11, at para 54. There can be no doubt that the police would have had the required reasonable suspicion seconds after the impugned first exchange when the Appellant asked, “Have you hooked up with any older men so far?” and stated “I’d love to be your first one.”

[8] The Appellant argues that the trial judge made an error in determining that the undercover officer did not extend an opportunity for him to commit an offence in the officer's initial message. He argues that the officer's statement regarding being both underage and “sometimes” attracted to older men constituted an opportunity for luring. Despite the able submissions of his counsel, I am not persuaded that the applications judge made any such error.

[9] The assessment of whether a police action constitutes an opportunity to commit an offence is guided by both the definition of the offence and the context in which the action took place. In the realm of drug trafficking, the Supreme Court adopted the conclusion articulated by Justice Trotter in R. v. Williams, 2014 ONSC 2370: an opportunity to commit an offence is presented when the officer makes a statement that allows the accused to engage in criminal behavior simply by responding "yes": Ahmad, supra, at para 64.

[10] The Appellant contends that by replying "yea, sometimes" to the question, "Are you attracted to older men?" and disclosing her age, he effectively committed the offence under section 172.1(1) with any response other than terminating the chat.

[11] The applications judge concluded that the Ahmad analysis, originally developed in the context of dial-a-dope cases, is not easily applied to child luring situations. In trafficking cases, the officer's inquiry is structured such that a "yes" response would constitute the commission of the offence. In contrast, child luring is not a transactional offence; it encompasses a wider spectrum of behavior and intent related to facilitating the commission of an enumerated offence within the luring context.

[12] The few cases that have applied the concept opportunity-based entrapment in the internet child luring context have focused on whether the officer, through words, conveyed to the accused that the underaged persona was receptive to sexual activity.

[13] In R. v. Ghotra, 2020 ONCA 373, the accused participated in an online conversation with a police officer posing as a 14-year-old girl. He expressed a desire to meet the young girl and was subsequently arrested when he arrived at what he thought was her apartment. The accused's application for entrapment was dismissed. The Court of Appeal for Ontario upheld this dismissal, stating that the accused's argument could only prevail "in a world where any 14-year-old girl who agrees to chat online with an adult male in a general interest chat room is thereby communicating that she is potentially receptive to a sexual encounter."

[14] Similarly, in R. v. Leskosky, 2020 ABQB 517, the Alberta Court of Queen's Bench examined the concept of "opportunity" in the context of investigating online sexual offences, such as child luring. The Court determined that an opportunity is presented when the language used by the officer conveys "permission, acceptance, or willingness" to engage in the particular sexual offence.

[15] In my assessment, the Appellant attributes excessive significance to the response "yea, sometimes" to the question "are you attracted to older men?" I concur with the applications judge that this answer is "neutral," "relatively passive," and "ambiguous." If a 14-year-old girl indicates that she is "sometimes" attracted to "older men," it does not imply an interest in engaging in any form of sexual activity with a stranger in a chat room. Rather, it merely suggests that, on occasion, she has found an older man attractive. It is important to remember that, from the perspective of a 14-year-old, an 18-year-old qualifies as "an older man".

[16] The Appellant relies on R. v. Kainth, 2021 ONSC 1941, where the accused posted an advertisement on a website called Locanto.com, which featured a section for casual sexual encounters. The ad was titled "Male looking for a hot girl – 32," and it included the following message: “Hi… I'm looking for a [sic] hot girl in the Brampton area for oral sex. … I'm available day and night. I can’t host…. Reply.” The police responded under the username "kitykaty14," saying, “Hi, I just saw your ad. I'm 14… how r u?”

[17] D. E. Harris J. concluded that the accused had been entrapped. The ad did not indicate that the accused was seeking an underage individual, and therefore, the officer lacked objectively verifiable reasonable suspicion. Nonetheless, the ad made it clear that the accused was seeking a sexual encounter. In this context, the response from the 14-year-old female indicated interest in the sexual act proposed by the accused. The applicant extended an invitation, which the officer accepted while posing as a 14-year-old female.

[18] In my view Kainth is clearly distinguishable. In Kainth, the accused did not initiate the conversation with the officer; rather, the officer initiated the interaction. The accused had posted an advertisement seeking oral sex, which was not directed at any specific individual and contained no indication that the accused was interested in minors. It was the undercover officer who began the conversation with the accused, suggesting that she was interested in what he was advertising. In contrast to the Appellant's situation, the accused in Kainth did not steer the conversation, and there was no "originating criminal spark."

[19] I concur with the applications judge that the response "yea, sometimes" constituted a step in the investigation, allowing for the possibility of further dialogue while also informing the Appellant that he was engaging in conversation with a minor. The Appellant had the option to guide the discussion towards any number of topics; however, he opted to direct the conversation towards sexually explicit topics, thereby committing the offence of child luring.

[20] Finally, in Ahmad, the Court of Appeal warned that an overly technical interpretation of the entrapment doctrine risks disconnecting it from its fundamental purpose: to prevent investigations that undermine the community's sense of decency and fair play. This remedy is reserved for the clearest cases of uncondonable state conduct. In this instance, the actions that took place during the investigation do not approach offending the court’s sense of justice. The accused led the conversation by making overt sexual advances, offering to rent a hotel room, soliciting her picture, and even sending an explicit image, ultimately arranging to meet at a hotel.

V. DISPOSITION

[21] The applications judge correctly determined that the accused was not entrapped, and this appeal is accordingly dismissed.

A. Kaufman J. Released: September 16, 2024