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Have You Been Entrapped? Supreme Court of Canada Clarifies What Counts as Entrapment

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By Joseph Neuberger and Liam K. Thompson

Last week, the Supreme Court of Canada released a number of decisions stemming from Project Raphael, a York Regional Police investigation into underage sex work (now ongoing in Durham Region). The typical charges arising from this project were internet luring, luring to commit a sexual assault, and obtain sexual services of a person under 18.  The Supreme Court clarified the law of entrapment as it relates to investigations involving the internet, and ultimately concluded that those who were caught in the Project’s net were not entrapped.

Project Raphael was a “buyer side” operation to attempt to curb child sex trafficking in York Region. Officers would post ads on the escorting section of Backpage.com with indications that the person offering those services was young, if not necessarily a child. The ads were posted with pictures of a female officer (in her 30s, but not showing her face) wearing a t-shirt from a local high school. The officers posing as a sex worker would, after agreeing to meet with the person under investigation, reveal that they were underage. If the person under investigation was unbothered by this, they would be invited to a hotel, and upon entering the hotel room, be arrested. The Supreme Court was called upon to decide whether the accused in Ramelson and its companion cases were entrapped.

Entrapment is not a traditional defence in the same way that self-defence or duress would be. Rather, it is a form of “abuse of process”—essentially, the state using its powers in an unfair way. A successful claim of entrapment does not result in an acquittal—but rather a stay of proceedings. It is not that the Crown has not proved the offence in full, and it is not that the accused is entitled to an acquittal on the charges before the court—but rather, because of the unfairness exhibited by the state actors, the Crown is disentitled to a conviction.

Certain crimes, such as those under investigation here, or drug trafficking, are more difficult to investigate because they take place covertly and in private, and in circumstances wherein even those harmed by the perpetrators of the offences—such as underage sex-workers or those addicted to drugs—will not readily report the offence. The law recognizes this and allows the police significant leeway in crafting investigations that will be able to root out these crimes and hold those who commit them accountable. However, that leeway has important limits: while the police can legitimately provide a would-be offender with a chance to commit an offence, they cannot induce someone into committing an offence when they wouldn’t otherwise.

A successful entrapment claim will require that the accused prove either that:

-the authorities provided a person an opportunity to commit an offence without acting on a reasonable suspicion that that person is already engaged in criminal activity, or without acting pursuant to a “bona fide inquiry”; or

even if the police are acting on reasonable suspicion, or acting in the course of a bona fide inquiry, they go beyond providing an opportunity to commit an offence and actually induce the commission of the offence.

An investigation will be a “bona fide inquiry” when there is reasonable suspicion over a sufficiently precise space (which, as this case demonstrates, can be physical or virtual) and the police must have a genuine purpose in investigating and repressing crime.

Mr. Ramelson appealed on two issues with respect to the entrapment doctrine: whether the police had a reasonable suspicion over a sufficiently precise space, and if that was the case, whether the child luring offences he was also charged with were sufficiently connected to the offence of communicating to obtain sexual services from a person under 18.

In this case, the police were found to have reasonable suspicion that sex work was being offered by children on the escort section of Backpages. This was proven through the testimony of Inspector Truong, Project Raphael’s architect. The York Regional Police had located 85 juvenile sex workers between 2011 and 2016, and he had interviewed hundreds of sex workers over his years of service. The space that the police confined their investigation to—was defined as ads indicating a sex worker’s extreme youth on the escort section of Backpage, and this was held to be a sufficiently precise place to ground reasonable suspicion.

With respect to the connection between the child-luring offences and the underage sex work offences, the claim was that the police, despite having reasonable suspicion that those under 18 were providing sex work through similar ads on backpages, were not allowed to then indicate that the fictional sex worker was under 16, thus increasing the potential penalty the accused would be subject to if convicted.

This case provides helpful clarification to the law of entrapment as it applies to the virtual spaces which have become so integrated into our everyday lives. It will provide important guidance to both Crown and defence counsel into how to approach an entrapment claim flowing from online sting operations.

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