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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

DEFENCES-ENTRAPMENT

In R. v. Brown, 2021 NLCA 27, May 10, 2021, the accused was convicted of three counts of child luring, contrary to section 172.1(1) of the Criminal Code.  The charges arose as a result of the accused communications with a fictional child created by an undercover police officer.  At trial, he applied for a stay of proceedings to be entered, arguing that he had been entrapped. The trial judge dismissed the application.  The accused appealed to the Court of Appeal.

The appeal was dismissed.

The Court of Appeal noted that “[i]t is clear from the decision in Ghotra, which dealt with child luring, that a website on the internet may constitute a location for purposes of an undercover police investigation. However, the police must have a reasonable suspicion, based on objectively discernable facts, that child luring is occurring on the targeted website. As discussed in Ghotra and Ahmad, the virtual location must be carefully delineated and tightly circumscribed to avoid ‘random virtue testing’; that is, providing individuals with the opportunity to commit offences that they likely would not otherwise have committed” (at paragraph 13).

The Court of Appeal concluded that “there is no basis on which to conclude that the trial judge erred in dismissing Mr. Brown’s application for a stay of the charges based on the doctrine of entrapment” (at paragraphs 18, 19 and 22):

The undercover officer explained why he had a legitimate, reasonable suspicion that child luring was occurring on the identified website. The trial judge accepted that the officer’s reasonable suspicion was grounded in objectively discernable facts, and referred to the officer’s evidence that he had used that website previously…

Each investigation must be assessed on its own facts. In this case, the fact that communications on this particular site had led to child luring charges in the past was a valid basis on which the trial judge found the necessary reasonable suspicion to ground the undercover investigation. The Crown is not required to reach back to validate the rationale that led to the first charge on the targeted location, as suggested by Mr. Brown.

The same circumstances were at play in this case. The requirement for reasonable suspicion, established by objectively discernable facts, to ground the investigation has been demonstrated.