SCC rules 9-0 men seeking sex with minors were not entrapped by online police investigation
Thursday, November 24, 2022 @ 5:27 PM | By Cristin Schmitz
Justice Andromache Karakatsanis’s 9-0 lead judgment in R. v. Ramelson, 2022 SCC 44, along with three unanimous judgments in companion cases that apply her elaboration of the entrapment framework, mark just the second time the court has spoken on police entrapment in a virtual (rather than a physical) space: R. v. Dare, 2022 SCC 47; R. v. Haniffa, 2022 SCC 46; and R. v. Jaffer, 2022 SCC 45. (It’s the third time, if one counts R v. Ghotra, 2021 SCC 12, where the court simply adopted the reasons of the Court of Appeal for Ontario without providing its own reasoning.)
The first time the top court ruled on entrapment in a virtual space was Justice Karakatsanis’s majority judgment in the groundbreaking case of R. v. Ahmad, 2020 SCC 11, co-written with Justices Russell Brown and Sheilah Martin, which clarified how the decades’ old entrapment doctrine (established in R. v. Mack  2 S.C.R. 903 and R. v. Barnes  1 S.C.R. 449) —and the reasonable suspicion standard — apply when police call a cell phone number they suspect to be part of a “dial-a-dope” operation.
Michael Lacy, Brauti Thorning LLP
The court has affirmed that the Internet, writ large, and entire webpages “will rarely, if ever, be sufficiently defined spaces to allow the police to offer opportunities to commit offences,” Lacy said. “Police conduct is circumscribed on the Internet by the entrapment doctrine even when they are investigating serious crimes like Internet luring and child exploitation offences.”
One takeaway is that what might appear to be vast places (like areas of webpages) “can be sufficiently defined, and where there is a reasonable possibility that crimes are occurring, the police can post advertisements or engage in other investigative techniques to snag people who are prepared to commit criminal offences,” he said.
Lacy noted the court also left open for another day whether the individual characteristics of a defendant are relevant to the question of whether the police improperly “induced” the offender to commit an offence he or she would not have committed.
Lacy advised that lawyers representing people charged with offences arising from online police stings will have to carefully scrutinize how, and why, the police targeted the virtual space, whether grounds existed to do so; whether other investigative techniques had proved not to be useful; and whether the police overstepped.
“I would expect greater attention being paid to obtaining disclosure relevant to these areas and more extensive evidentiary voir dires on entrapment hearings where these issues will need to be explored,” he said.
The top court did not accede to the CLA’s argument that it should create a presumptive rule that online police investigations of the kind at issue were unlawful and should only be permitted by judicial authorization. “This would allow a judge at the front end to assess whether the necessary threshold of reasonable suspicion had been met and also limit the nature of the police activity etc.,” Lacy said. “From our perspective, this is a sensible way to monitor and restrict police conduct, while still allowing them to investigate serious crimes. It would also limit litigation after the fact. But this is really a matter for Parliament as opposed to the courts.”
Toronto’s David Quayat, who with Chris Greenwood represented the intervener federal Director of Public Prosecutions, said the analysis set out by Justice Karakatsanis “is thoughtful and humble.”
David Quayat, Director of Public Prosecutions
Quayat said Ramelson acknowledges the challenges that digital spaces present in terms of balancing privacy and the needs of law enforcement in combating crime online. “The court’s reasoning respects and reaffirms the approach articulated in Ahmad — namely that courts have to take a contextual approach to evaluating police activity in virtual spaces,” he said. “What I think is new is the court eschewing bricks-and-mortar approaches to online spaces. The ruling emphasizes that no one factor in assessing police conduct in virtual spaces is controlling. Courts have to look at the whole of the context, including the seriousness of the crime, the potential impact in individuals in that space, and how the police go about operating in virtual spaces.”
Quayat advised that a takeaway for law enforcement, in the wake of Ramelson, “is to make sure they turn their minds to how they structure their online operations.”
In the appeals before the court, the investigation was tailored to the crimes that were being investigating, and in a digital place where officers had a reasonable suspicion that child sexual exploitation was occurring, he noted.
“Law enforcement will need to consider alternative forms of investigation and the seriousness of the crimes they are trying to interdict in structuring their online activities,” Quayat advised. “Put simply, thought, planning and consideration of the Ahmad factors need to feature in law enforcement’s decisions to operate in virtual spaces.”
Gerald Chan, Stockwoods LLP
“There is no simple physical-world analogue to what happens on the Internet,” Chan said. “The intrusive nature of a police investigation on a social media site, chat forum, or message board cannot be equated with that of an undercover officer offering to sell drugs in a neighbourhood.”
Among other things, he noted, online investigations are not limited by geography, are less prone to resource constraints, and undermine the stronger sense of anonymity that Canadians have come to expect in the virtual world.
“We are also encouraged that the court recognized the interconnectedness between privacy and expressive freedom, which we argued,” he said. “These Charter rights must be considered together and not in isolation. If people think the state is always listening or reading, they will self-censor.”
Chan said that going forward, police will need to be especially careful in online undercover operations to not overreach as the courts will closely scrutinize their investigations. “And the police must be especially cautious when targeting virtual spaces used by vulnerable groups, such as racial, religious, or sexual minorities,” he advised, a point also urged by the BCCLA.
“We are disappointed, however, that the Supreme Court did not agree with our arguments that the police and courts should be prohibited from passing value judgments on the social value of the expression they are chilling,” Chan said. “Instead, the court endorsed the idea that sexual communications — even where legal — can fall outside traditional categories of expression valued in a democratic society and therefore can be more readily intruded upon.”
Few forms of expression are more personal than sexual communications, he noted.
Chan suggested “the police should not have an easier time targeting private spaces where these communications are occurring because of their perceived lack of social value.”
At press time, the respondent Ontario Crown and counsel for the appellants had not yet provided comment.
Ahmad established, for both physical and virtual spaces, that when police lack reasonable suspicion that an individual is already engaged in criminal activity, the entrapment doctrine forbids them from offering opportunities to commit offences unless police do so in the course of a “bona fide inquiry” 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.
To ensure that police investigations are adequately tailored and avoid random virtue testing, Ahmad said courts should consider various factors, including (but not limited to): the seriousness of the crime in question; the time of day and the number of activities and persons who might be affected; whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location; the level of privacy expected in the area or space; the importance of the virtual space to freedom of expression; and the availability of other, less intrusive, investigative techniques.
In Ramelson, Justice Karakatsanis emphasizes that “these factors are contextual and non‑exhaustive, and no one factor should be allowed to overwhelm the analysis. The space, the crimes and the nature of the investigation all influence the acceptable scope of the police’s inquiry. The entire context, in short, determines whether the space of an investigation was sufficiently precise.”
Ramelson addresses for the first time the question when do online police investigations on platforms and websites amount to entrapment? As the intervener federal Director of Public Prosecutions pointed out in her factum, it is a very important issue since “virtual spaces have become a force multiplier in the conduct of criminal activities,” including drug, firearm and human trafficking, child abuse, and the fomenting of hate and extremist ideologies.
The four appeals before the Supreme Court asked the judges to decide the proper approach for determining whether police had a reasonable suspicion that criminal activity was occurring in a virtual space, before they extended an offer in that virtual space to commit a criminal offence.
The cases arose when the appellants (along with 100 other men) were arrested between 2014 and 2017 as a result of an operation by York Regional Police. “Project Raphael” aimed to prevent juvenile prostitution by focusing on people who attempt to purchase sexual services from children. Undercover officers posted ads for the sale of sexual services on a large website, Backpage, which advertised adult “escort” services. In the ads, “Jamie” described herself as “YOUNG shy FRESH and NEW” and as 18 years old, the minimum age allowed by Backpage. The adds included photographs of a female police officer, whose face was not shown, posing as Jamie.
While the ads did not state that the escorts were underage, that information was revealed to the men during their text messaging with “Jamie” — shortly after they contacted the advertised number. Those who continued the chat and arranged sexual services and a price were directed to a hotel room, where they were arrested and variously charged with diverse offences, including child luring under 16 and child luring under 18. The accused sought a stay of proceedings, arguing they were entrapped by police.
The Ontario Court of Appeal disagreed, see, for example, R. v. Ramelson 2021 ONCA 328 and R. v. Haniffa 2021 ONCA 326.
The Ontario Court of Appeal held that the police investigation was a bona fide police inquiry and that police did not require reasonable suspicion that the person responding to the ad was seeking someone underage before extending offers to commit the offence of communicating to obtain for consideration the sexual services of an underage person.
The Appeal Court reasoned that in conducting the investigation, the police necessarily provided persons with the opportunity to commit the rationally connected offence of communicating with a person they believed to be underage to facilitate sexual contact with them, and therefore the appellants were not entrapped.
The Supreme Court agreed with the conclusion that the appellants were not entrapped, and upheld their convictions.
“First, Project Raphael was a bona fide inquiry,” Justice Karakatsanis explained. “The police had reasonable suspicion over a space defined with sufficient precision. Here, the space was the particular type of ads within the York Region escort subdirectory of Backpage that emphasized the sex worker’s extreme youth. Second, the offences offered by the police were rationally connected and proportionate to the offence they reasonably suspected was occurring in that space.”
Justice Andromache Karakatsanis
“Some of the most pernicious crimes are the hardest to investigate,” she remarked. “To draw those crimes into the open, the police, acting undercover, sometimes create occasions for people to commit the very crimes they seek to prevent. Done properly, such techniques may cast new light on covert offending, unveiling harms that would otherwise go unpunished.”
“But taken too far,” she added, “they may tempt the vulnerable or the morally wavering into criminality, and virtue-test many others, threatening privacy and the public’s confidence in the justice system. They demand caution.”
Justice Karakatsanis said “the stakes are highest on the Internet. While the medium has made activities more efficient, widespread, and harder to track, it has also allowed state surveillance to become, potentially, ever more expansive. The dilemmas this creates for balancing law enforcement with civil liberties, the rule of law, and the repute of the justice system are ongoing. This appeal, and its companion appeals, raise one of them.”
Justice Karakatsanis emphasized that scrutiny of whether a space is sufficiently precise is crucial when police investigate broader spaces like a website.
“First, in permeable and interactive spaces, the ‘space’ of an inquiry will not necessarily be intuitive,” she elaborated. “The possibility of creating subspaces, such as postings within a broader website, suggests that the ways subspaces are embedded in broader online spaces may be critical for understanding how the space of an inquiry was tethered to reasonable suspicion.”
Second, Justice Karakatsanis wrote, whether an online space was sufficiently precise may turn as much on the space’s functions and interactivity as it does on its parameters.
“A space’s functions may require that police further tailor the location of an online inquiry,” she wrote. “They may 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 virtual space. They may also call for attention to how the space facilitates or inhibits data collection.”
Justice Karakatsanis said the Ahmad factors may assist in this determination. “Entire websites will rarely be sufficiently particularized, as multi‑functional virtual spaces will usually be too broad to support reasonable suspicion,” she said, echoing her caution in Ahmad.
“But in some virtual spaces, the criminality may be so pervasive that it supports a reasonable suspicion over the entire area,” Justice Karakatsanis said. “In sum, the Internet’s unique features are inescapable in assessing whether the location is sufficiently precise to ground reasonable suspicion.”
Justice Karakatsanis also said that bona fide inquiries do not restrict police to offering opportunities to commit only the same offences that the police suspect are occurring in the space they are investigating. Following Mack, “the crime that police offer must be rationally connected and proportionate to the offence they suspect is occurring,” she said.
In the four cases at bar, the police had the requisite reasonable suspicion that an offence was occurring within ads posted in the escort subdirectory of the York Region Backpage based on testimony of the undercover officer which was grounded in his direct and indirect experiences in law enforcement, Justice Karakatsanis held.
Moreover, their reasonable suspicion was related to a space that was sufficiently precisely defined. “The investigation did not extend to an entire website as the space was the particular type of ads within the York Region escort subdirectory of Backpage that emphasized the sex worker’s extreme youth,” Justice Karakatsanis reasoned.
“The relationship between the user‑created ads (the location where the police’s suspicion first arose) and the police‑created ads (where the police later offered their opportunities) is integral to defining the space,” she said. “It explains how the police‑created ads could be premised upon and tethered to reasonable suspicion. The space’s functions and interactivity permitted the police to design Project Raphael in a way that narrowed the investigation’s scope. Although the investigation impacted many individuals, in context, the purview of the police inquiry went no broader than the evidence allowed.”
Photo of Justice Andromache Karakatsanis by David Balfour photography
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