On November 24, 2022, the Supreme Court of Canada released four judgments in which it considered the defence or excuse of entrapment (R. v. Ramelson, 2022 SCC 44, R. v. Jaffer, 2022 SCC 45, R. v. Haniffa, 2022 SCC 46, and R. v. Dare, 2022 SCC 47). The entrapment issue was considered in these appeals in the context of online police investigations in which the police provided individuals with an opportunity to commit sexual offences against children. All four of the appeals involved the accused communicating with undercover police officers through an online escort service. In each case, the undercover officers indicated that they were children. In each case, the accused, despite this information, agreed to meet the children at a hotel room. All four went to the designated room where they were arrested and charged with various offences.
At their trials, all four argued that a judicial stay of proceedings should be entered based upon them having been entrapped. These arguments were rejected by the trial judges in all of the cases except one (Ramelson). In the latter case, the Ontario Court of Appeal set aside the stay. All four individuals were granted leave to appeal by the Supreme Court of Canada.
The Circumstances Involved:
The general circumstances involved, which were common to each accused, were described by the Supreme Court of Canada in the following manner (at paragraphs 3, 12 and 15 of Ramelson):
Between 2014 and 2017, “Project Raphael”, an online investigation of the York Regional Police (YRP), led to the arrests of 104 men for child luring and related offences. Ads posted by the police on the escort subdirectory of Backpage.com spurred text-message conversations, where an undercover officer, after agreeing to provide sexual services, revealed themselves to be a juvenile. All those who took up the invitation to visit the designated hotel room were arrested. Among them was the appellant in this case, Mr. Ramelson, as well as the three appellants in the related appeals (Mr. Jaffer (R. v. Jaffer, 2022 SCC 45), Mr. Haniffa (R. v. Haniffa, 2022 SCC 46), and Mr. Dare (R. v. Dare, 2022 SCC 47)). They argue they were entrapped.
Project Raphael placed similar ads on Backpage, listing the age as 18 (the minimum the website would permit) and using words like “tight”, “young”, “new” or “fresh” in the ad’s text, emulating common Backpage advertisements for the youngest sex workers (2019 ONSC 6894 (first ruling on entrapment), at para. 11 (CanLII); A.R., vol. II, at p. 135). When potential clients responded, the police, imitating an adolescent’s idiom, arranged a sexual transaction. When the client agreed, the police revealed the sex worker was underage. When the client continued to engage, the police invited them to a hotel room.
Although never recorded, the number of responses was “overwhelming”. And the number of arrests was significant. In 2014-15, posing most often as a 16-year-old, the police made a total of 32 arrests in 8 days online. In 2016, with the age lowered to 15, the police made 53 arrests in 8 days. And in 2017, with the age further lowered to 14, the police made 19 arrests in 4 days. In total, Project Raphael led to the arrest of 104 people, all in only 20 days of operation.
The Elements of the Defence of Entrapment:
The Supreme Court described the elements of the entrapment defence as follows (Ramelson, at paragraphs 4 and 5):
When the police lack reasonable suspicion that the individual is already engaged in criminal activity, the entrapment doctrine forbids them from offering opportunities to commit offences unless they do so in the course of a “bona fide inquiry”: that is, where they (1) reasonably suspect that crime is occurring in a sufficiently precise space; and (2) have a genuine purpose of investigating and repressing crime (R. v. Ahmad, 2020 SCC 11, at para. 20). That test applies to investigations in physical and virtual spaces alike. But as this Court noted in Ahmad, “state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space” (para. 37). There, the Court considered those differences in the context of surveillance that transpired in the investigative “space” of a phone number. This appeal, and the three related appeals, require us to do the same in the context of the Internet.
At its core, the entrapment doctrine recognizes that sometimes “the ends do not justify the means” (R. v. Mack, [1988] 2 S.C.R. 903,at p. 938). Given the Internet’s potential reach, there is a strong public interest in ensuring that online police investigations do not unduly intrude on public life. In assessing whether an online space is sufficiently precise to ground the police’s reasonable suspicion, then, the Internet’s unique features must be considered. Being informational rather than geographical, online spaces flout the limitations of physical spaces; they may lead people to behave differently than they do in person; and their use can raise distinct rights concerns, notably over privacy. Unlike physical spaces, an online space’s parameters may say little about whether the space of an investigation was sufficiently precise. Instead, the space must be viewed with particular attention to its functions and interactivity to ensure that the space has been “carefully delineate[d] and tightly circumscribe[d]” (Ahmad, at para. 39). The factors discussed by this Court in Ahmad — in particular, the number of activities and people affected, the interests of privacy and free expression, and the availability of less intrusive investigative techniques — may assist in that assessment. They may be key to ensuring that the purview of an online police investigation was no “broader than the evidence allow[ed]” (para. 41).
The Entrapment Doctrine:
The Supreme Court noted that “[w]hatever their utility in fighting crime, some police techniques are ‘unacceptable in a free society with strong notions of fairness, decency, and privacy’…Entrapment is one of them. It is not a traditional defence, but a form of abuse of process whose only remedy is a stay of proceedings. It may occur in two ways” (Ramelson, at paragraph 29):
(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;
(b) although having such 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.
However, the Supreme Court also indicated that the police are entitled to “considerable latitude” in their investigations, “such that a finding of entrapment should issue only in the ‘clearest of cases’…The doctrine thus strives to balance competing imperatives: ‘The rule of law, and the need to protect privacy interests and personal freedom from state overreach’ on the one hand, and ‘the state’s legitimate interest in investigating and prosecuting crime’ on the other” (at paragraphs 33 and 34).
The lead decision was rendered in Ramelson. The remaining three appeals were decided based on the principles enunciated in Ramelson.
R. v. Ramelson:
In this case, the charges against the accused were stayed by the trial judge. The Ontario Court of Appeal set aside the stay. The accused was granted leave to appeal to the Supreme Court of Canada,
The accused in this case “was among those arrested in 2017. On March 27, he messaged ‘Michelle’, aged 18, who was described as a ‘Tight Brand NEW girl . . . who is sexy and YOUNG with a tight body’, with a ‘YOUNG FRIEND if your [sic] interested too’…The ad featured three faceless photographs of an undercover officer in her 30s, wearing a t-shirt from a local high school. After 27 minutes of somewhat sporadic conversation, and having agreed to a transaction, the undercover officer (UC) revealed their ‘true’ ages” (at paragraph 16):
[UC]: Just so you know we under 18. Some guys freak out and I don’t want problems. We are small and it’s obvious.
[Ramelson]: I’m cool with it. I’ll be gentle as long as you’re sexy and willing
[UC]: We are both willing. We’re 14 but will both be turning 15 this year. That cool? We are buddies and very flexable [sic]??
[Ramelson]: Should be lots of fun.
Ramelson was arrested when he arrived at the hotel room. He was charged with three offences:
Telecommunicating with a person he believed was under the age of 16 years for the purpose of facilitating the commission of an offence, contrary to section 152 of the Criminal Code of Canada;
Communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years, contrary to contrary to section 286.1(2) of the Criminal Code; and
Telecommunicating to make an arrangement with a person to commit an offence under s. 152 (invitation to sexual touching) contrary to s. 172.2(1)(b) of the Criminal Code.
The Appeal:
The Supreme Court indicated that the appeal raised “two broad issues” (at paragraph 26):
• How does the bona fide inquiry prong of the entrapment doctrine apply in the context of online police investigations?
• Did the application judge err in concluding that Mr. Ramelson was entrapped?
(i) Did the police have reasonable suspicion that the s. 286.1(2) offence was occurring in a space defined with sufficient precision?
(ii) If so, were the police entitled to offer the opportunity to commit child luring offences under ss. 172.1 and 172.2 of the Criminal Code?
The Supreme Court indicated that the “central issue on appeal is whether Project Raphael was a bona fide inquiry. This has two criteria: the police must have had (1) reasonable suspicion over a sufficiently precise space; and (2) a genuine purpose of investigating and repressing crime…Satisfying those criteria entitles the police to present ‘any person associated with the area with the opportunity to commit the particular offence’ — even without individualized suspicion in the person investigated” (at paragraph 35).
The Court noted that “reasonable suspicion is not onerous; it requires only the reasonable possibility, not probability, that crime is occurring…Yet it still subjects police actions to ‘exacting curial scrutiny’, to ensure they were founded on objective evidence rather than on profiling, stereotyping or other improper grounds…As an objective standard, it ‘protects everyone from random testing’, whether they are tempted to commit crimes in the space or not” (at paragraph 53).
As regards how the doctrine of entrapment applies to online investigations, the Supreme Court indicated that “courts assessing whether an online police investigation was bona fide must pay close attention to the space’s functions and interactivity — that is, to the permeability, interconnectedness, dynamism and other features that make the Internet a distinctive milieu for law enforcement. Even tailored online investigations may represent a broad and profound invasion into peoples’ lives. Given the potential of online investigations to impact many more individuals than an equivalent investigation in a physical space, the nature of those impacts deserve scrutiny. How the police act on the Internet may matter as much or more as where they act” (at paragraph 35).
As a result, the Supreme Court indicated that online police investigations will “require the police to focus on more carefully delineated spaces and target their opportunities to particular subspaces or to particular ways in which users engage with the space. This is especially true in places frequented by vulnerable groups, such as racial, religious or sexual minorities, or in spaces whose use carries important rights implications, where the need for precision is particularly critical” (at paragraph 64).
The Decision:
The Supreme Court indicated that it agreed “with the Court of Appeal for Ontario that the application judge erred by failing to consider factors beyond the number of people affected by the police investigation. On the correct analysis, the police had reasonable suspicion over a sufficiently precise space and the offences the police offered were rationally connected and proportionate to the offence they reasonably suspected was occurring. Mr. Ramelson was therefore not entrapped” (at paragraph 6).
The Supreme Court held that the evidence established that police had reasonable suspicion to believe that the offence of communicating for the purpose of obtaining the sexual services of a person under the age of 18 years was “occurring in the space” they placed their advertizements. The Court concluded that “[i]f the [police] were to address offences related to juvenile sex work, ads in the York Region escort subdirectory of Backpage for the youngest sex workers were places to do so” (at paragraph 76).
The Supreme Court also concluded that the trial judge “failed to properly consider the entire context — in particular, the seriousness of the crimes and the difficulty investigating them via alternative techniques. Like the Court of Appeal, a review of the full context leads me to conclude that the online space in which Project Raphael offered opportunities was defined with sufficient precision to ground the police’s reasonable suspicion. I begin with the virtual space’s definition, which must be carefully delineated, including, as I have explained, with a view to the space’s functions and interactivity” (at paragraph 78).
Finally, the Supreme Court pointed out that it was “when the police mentioned the sex worker’s age — that they provided him with the opportunity to commit the offences under ss. 286.1(2), 172.1 and 172.2…By agreeing to proceed with the transaction, all the elements of the offences were satisfied…[s]ting operations have become ‘an important tool — if not the most important tool — available to the police in detecting offenders who target children and preventing them from doing actual harm to children’…Given the ‘considerable latitude’ police are owed in their investigations…, sting operations like Project Raphael should not be foreclosed lightly” (at paragraphs 84 and 92).
R. v. Jaffer:
In this case, the accused’s application for a stay of proceedings to be entered was denied by the trial judge and he was convicted of the offences of telecommunicating with a person he believed to be under the age of 18 contrary to section 172.1(1)(a) of the Criminal Code, and communicating to obtain for consideration the sexual services of a person under 18 contrary section 286.1(2)). His appeal from conviction was dismissed by the Ontario Court of Appeal. He was granted leave to appeal to the Supreme Court of Canada.
The Circumstances Involved:
While “browsing the escort subdirectory of Backpage.com, Mr. Jaffer messaged ‘Kathy’, aged 18, who was described as a ‘Tight Brand New girl’ who is ‘sexy and young with a tight body’…The posting listed a phone number and an email address titled ‘[email protected]’. Communicating by text with Mr. Jaffer, the undercover officer (UC) eventually revealed to him that ‘she’ was 15 years old” (at paragraph 2):
[UC]: . . . how old r u
[Jaffer]: 22
[UC]: . . . well im not quite 18 yet r u ok with that
[Jaffer]: Yeah I’m ok . . . but how much younger are u? 17?
[UC]: im turning 16 on sunday but I look 18
[Jaffer]: Um . . . ok but how do I know you’re not a cop?
[Jaffer]: I really don’t want to get in trouble ya know
[UC]: and i definitely don’t want trouble
[Jaffer]: Ok can I ask why you’re escorting if it’s ok with u? Usually people your age don’t know about this industry
[Jaffer]: Just curios
[UC]: my friend got me into it . . . i just need the money i dont do this all the time its my second time honestly i need the money .
[Jaffer]: I see . . . I like that you’re honest. I can trust u then . So I’ll come then but please please let’s keep this between ourselves.
The Supreme Court’s Decision:
The appeal was dismissed and the convictions affirmed. The Supreme Court indicated that the accused adopted “the arguments raised in the companion appeals as they concern opportunity-based entrapment, adding that the police lacked reasonable suspicion over him personally. I have addressed these points in my reasons in Ramelson, where I concluded that Project Raphael was a bona fide inquiry. For the reasons given in that case, I would not accede to these grounds of appeal” (at paragraph 7).
However, Mr. Jaffer also raised an additional argument. He argued that the trial judge erred “in failing to take his personal circumstances into account when assessing whether he was induced. Mr. Jaffer acknowledges that the police could not have known that he was living with undiagnosed Asperger’s Syndrome, but submits that such personal circumstances are relevant and ought to be considered in the analysis of inducement-based entrapment. Mr. Jaffer explains that the common symptoms of his condition — in particular, a difficulty socializing and rigid rule compliance — put him at a heightened risk for being induced. In addition, that condition, and an earlier interaction he had with police, where he had agreed to provide information about a particular sex worker and her pimp, lent credence to his explanation that he had planned to meet ‘Kathy’ only to gather information and alert the authorities” (at paragraph 8).
The Supreme Court indicated that the entrapment excuse allows a trial judge to consider judge whether the police “appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction”. However, the Court declined to deal with this issue, holding that there was no evidence “that the police ‘employed means which go further than providing an opportunity’ to commit the offences” (at paragraphs 9 and 10):
The inducement branch of the entrapment doctrine provides that even if the police have reasonable suspicion over an individual or act under a bona fide inquiry, they cannot “emplo[y] means which go further than providing an opportunity” to commit a crime (R. v. Mack, [1988] 2 S.C.R. 903, at p. 966). That assessment may include looking at “whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime” or whether the police “appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction”, among other factors (p. 966). But the assessment is objective and focuses on the police’s conduct, not on that conduct’s effect “on the accused’s state of mind” (p. 965).
In my view, the issue of whether that framework ought to be revised is better left for another case. Whatever the merit of Mr. Jaffer’s legal arguments — a point I do not decide here — the jury, in full knowledge of Mr. Jaffer’s circumstances, rejected his evidence that he had intended to visit the hotel room solely to gather information. In convicting him, the jury did not have a reasonable doubt about the purpose for which he arranged the meeting. Echoing that conclusion, the application judge found that Mr. Jaffer had been intent on a sexual transaction, even after learning the sex worker’s age. No error in those findings has been demonstrated. Nor has Mr. Jaffer pointed to any indication that the police “employed means which go further than providing an opportunity” to commit the offences (Mack, at p. 966). Even if Mr. Jaffer’s subjective circumstances were considered under the legal framework for inducement, then, they could not affect the result. I would not accede to this ground of appeal.
R. v. Haniffa:
In this case, the accused’s application for a stay of proceedings to be entered was denied by the trial judge and he was convicted of the offences of telecommunicating with a person he believed to be under the age of 18 years, for the purpose of committing an offence, contrary to section 172.1(1)(a) of the Criminal Code; telecommunicating with a person he believed to be under the age of 16 years for the purpose of committing an offence under section 152 (invitation to sexual touching), contrary to s. 172.1(1)(b); and communicating to obtain sexual services for consideration from a person under 18 years, contrary to s. 286.1(2). His appeal from conviction was dismissed by the Ontario Court of Appeal. He was granted leave to appeal to the Supreme Court of Canada.
The Circumstances Involved:
While “browsing the escort subdirectory of Backpage.com, Mr. Haniffa responded to an ad purportedly placed by ‘Jamie’. The ad indicated she was 18 years old (the minimum age allowed by the website), and described her as ‘YOUNG Shy FRESH and NEW’, ‘super new to this and pretty shy’ and as having a friend who is ‘young like me’. Communicating with Mr. Haniffa by text, the undercover officer (UC) eventually revealed to him that ‘she’ was 15 years old” (at paragraph 3):
[Haniffa]: U busy?
[UC]: im free tn after school
[Haniffa]: What time is school done?
[UC]: 330
[UC]: r u ok if im not quite 18 yet?
[Haniffa]: Is this like a cop thing or something?
[Haniffa]: Can u call u?
[UC]: .no silly
[Haniffa]: How old r u?
[UC]: im 15 to be hones but I look older hun
[Haniffa]: Mm
[Haniffa]: Ok so where will u be working?
[UC]: why the mm babe
[Haniffa]: As in mm ok.
The Supreme Court’s Decision:
The accused in this case raised the same arguments presented in Ramelson. For the reasons provided in that decision, the appeal was dismissed (at paragraph 7):
In this appeal, Mr. Haniffa adopts the questions in issue as set out in the appellant’s factum in Ramelson, and acknowledges that ‘the facts of the present case are sufficiently similar, so that the same conclusions must follow.
However, the accused in this appeal raised an additional ground of appeal. He argued that the evidence of the primary investigator (Inspector Truong), upon whom the Crown relied to establish a bona fide investigation, “was insufficient to ground reasonable suspicion: it was based too heavily on his personal experiences, failed to show the targeted offences were prevalent, and failed to explain how a user would actually locate a juvenile sex worker through the website, given its parameters. And given the potential breadth of investigations into spaces, the police should be limited, in the context of bona fide inquiries, to offering the same offences they suspect are occurring; they should not be entitled to offer those that are only rationally connected and proportionate” (at paragraph 7).
The Supreme Court indicated that “[f]or the reasons given in Ramelson, I would not accede to these arguments. As I explained there, the police had reasonable suspicion over a sufficiently precise space and the Mack standard of ‘rationally connected and proportionate’ applies and was satisfied. Project Raphael was thus a bona fide inquiry. I conclude that Mr. Haniffa was not entrapped” (at paragraph 8).
R. v. Dare:
Finally, in this case, the accused’s application for a stay of proceedings to be entered as a result of being entrapped was denied and he was convicted of the offences of telecommunicating with a person he believed to be under the age of 18 years, for the purpose of committing an offence, contrary to section 172.1(1)(a) of the Criminal Code; telecommunicating with a person he believed to be under the age of 16 years for the purpose of committing an offence under section 152 (invitation to sexual touching), contrary to section 172.1(1)(b); and communicating to obtain sexual services for consideration from a person under 18 years, contrary to section 286.1(2). His appeal from conviction was dismissed by the Ontario Court of Appeal. He was granted leave to appeal to the Supreme Court of Canada.
The Circumstances Involved:
While “browsing the escort subdirectory of Backpage.com, Mr. Dare responded to an ad purportedly placed by ‘Kathy’. The ad indicated she was 18 years old (the minimum age allowed by the website), described her as a ‘Tight Brand New girl who is sexy and young with a tight body’, and stated that she had a ‘YOUNG FRIEND’. Communicating with Mr. Dare by text, the undercover officer (UC) eventually revealed to him that ‘she’ was 15 years old” (at paragraph 3):
[UC]: You cool with young?
[Dare]: Yes
[Dare]: Am also young
[UC]: Ok cool. I’m 15 but look bit older.
[UC]: How old are you if don’t mind me asking?
[Dare]: Ok am 22.
The Supreme Court’s Decision:
In dismissing the appeal, the Supreme Court noted that Mr. Dare adopted “the appellant submissions made in Ramelson and Haniffa, stating that ‘the facts in the present case are sufficiently similar, so that the same conclusions ought to follow’”. The Supreme Court held that for the reasons given in Ramelson, where it was held “that Project Raphael was a bona fide inquiry, I would not accede to Mr. Dare’s grounds of appeal. He was not entrapped. I would therefore dismiss the appeal” (at paragraph 7).
A Summary:
These four decisions have not radically changed the law of entrapment. The Supreme Court referred extensively to its earlier decisions in Mack and Ahmad. The Court confirmed that the entrapment inquiry requires a consideration of whether in offering an opportunity to a person to commit an offence, the police were involved in a bona fide inquiry. The Court reiterated its conceptualization of what this means as set out Ahmad by stating that this requires that the police “(1) reasonably suspect that crime is occurring in a sufficiently precise space; and (2) have a genuine purpose of investigating and repressing crime” (Ramelson, at paragraph 4).
What distinguishes this series of decisions from earlier Supreme Court of Canada entrapment decisions is the online element. In each instance, the police had no basis to believe that the person they were communicating with intended to commit a criminal offence. The initial contact was non-criminal. It was when the police provided the unknown individuals with the opportunity to engage in criminal conduct that things changed. Some individuals (these four and others) pursued the opportunity. Some did not.
All four appeals involved the accused communicating with undercover police officers through an online escort service. In each case, the undercover officers indicated that they were children. In each case, the accused, despite this information, agreed to meet the children at a hotel room. All four went to the designated room where they were arrested and charged with various offences. Based upon this scenario, it is hardly surprising that the entrapment defence was rejected. The police provided a clear opportunity to unknown individuals to commit a sexual offence involving a child, but they did not, even in the slightest fashion, induce any of the individuals to visit a hotel room where they expected to meet a child.
Finally, as judges, we now routinely see the Internet being used for the commission of offences against children. This does not mean that the police have a carte blanche authority to provide random opportunities to unknown individuals to commit offences through online investigations. However, these four decisions do mean that the police can do so when they have grounds to suspect (a low threshold) that offences are being committed in a defined portion of the Internet. These decisions do not attempt to conclusively define the scope of that space.
