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Appeal Court Dicta

Criminal - Entrapment

. R. v. R.R.

In R. v. R.R. (Ont CA, 2023) the Court of Appeal characterizes the test for criminal 'entrapment':
[7] There is no dispute regarding the law of entrapment. The cases of R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at pp. 959, R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 15, and R. v. Ramelson, 2022 SCC 44, at para. 29, set out the test that must be met.

[8] There is entrapment when:
(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; and

(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.
. R. v. Ramelson

In R. v. Ramelson (SCC, 2022) the Supreme Court of Canada reviewed and developed the law of entrapment in an internet child luring case:
[1] Some of the most pernicious crimes are the hardest to investigate. 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, 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.

[2] 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.

[3] 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.

[4] 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.

[5] At its core, the entrapment doctrine recognizes that sometimes “the ends do not justify the means” (R. v. Mack, 1988 CanLII 24 (SCC), [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).


A. The Entrapment Doctrine

[29] Whatever their utility in fighting crime, some police techniques are “unacceptable in a free society with strong notions of fairness, decency, and privacy” (Ahmad, at para. 16). 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:
(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.

(Mack, at pp. 964-65)
[30] As a form of abuse of process, the entrapment doctrine flows from courts’ inherent jurisdiction to protect the justice system’s integrity, a power necessary to preserve “the respect and support of the community”, upon which the rule of law depends (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667; see Mack, at p. 938). Like abuse of process, the entrapment doctrine censures state conduct that “violates our notions of ‘fair play’ and ‘decency’ and which shows blatant disregard for the qualities of humanness which all of us share” (Mack, at p. 940).

[31] Entrapment recognizes that “police involvement in the commission of a crime can bring the administration of justice into disrepute” (Ahmad, at para. 16). When the police offer opportunities to commit crimes without reasonable suspicion, or induce their commission, they may transgress several expectations: that the police will not intrude on privacy; that they will not randomly test the public’s propensity to commit crimes, and still less manufacture them; that they, of all actors, will not act unlawfully for the purpose of entrapping others; and that they will not squander public resources on any of the above (Mack, at p. 958). Violating those expectations reflects poorly on law enforcement, but it may also diminish confidence in the justice system more generally.

[32] The remedy for entrapment is a stay of proceedings — the “most drastic remedy a criminal court can order” (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30) — not because the accused is entitled to an acquittal, but because the Crown “is disentitled to a conviction” (R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at p. 148; Mack, at p. 944). A stay of proceedings ends prosecutions that infringe basic norms, marking courts’ refusal to “condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state” (Mack, at p. 942).

[33] Yet law enforcement also serves an important public interest. The police must innovate if they are to match offenders’ ingenuity. Some offences, too, are hard to investigate: whether because they are “consensual”; because they “victimize those who are reluctant or unable to report them”; or because they may “lead to such great harm that they must be actively prevented” (Ahmad, at para. 18). And so drastic a remedy as a stay of proceedings calls for some restraint. These realities entitle the police to “considerable latitude” in their investigations (Mack, at p. 917), such that a finding of entrapment should issue only in the “clearest of cases” (p. 976).

[34] 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 (Ahmad, at para. 22; see Mack, at pp. 941-42). Below, I consider what that balance requires in the context of police investigations into online spaces.

B. Bona Fide Inquiries and the Internet

(1) Overview

[35] 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 (Ahmad, at para. 20). 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 (R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449, at p. 463 (emphasis in original)).

[36] Bona fide inquiries serve a useful purpose. In some cases, without knowing who might offend, the police may reasonably suspect that certain criminal activity is occurring within a given space. And, depending on the crime investigated, proactive methods may be necessary. The bona fide inquiry prong recognizes the legitimacy of such investigations, even as it seeks to confine them within careful limits.  

[37] The Court has twice applied this prong of the entrapment doctrine. In Barnes, the police suspected that considerable drug trafficking was occurring in a six-block area of Vancouver’s Granville Mall. The Court held that since the police’s suspicions were reasonable, they were entitled, acting in good faith, to approach anybody associated with the space with an offer to purchase drugs. In Ahmad, the Court considered two separate appeals in which police suspected that two phone numbers were being used for dial-a-dope operations. But since their suspicion was based on anonymous, unverified and uncorroborated tips, the Court held that the police did not have reasonable suspicion of illegal activity for the phone number itself, and so were not acting under a bona fide inquiry.

[38] Barnes loomed large in the courts below. For the Court of Appeal, it was the “archetypical example” of a bona fide inquiry (para. 23), showing that such investigations can potentially target thousands of people (para. 79). And for the application judge in Jaffer, a companion case, “an analogy c[ould] readily be drawn”, in the Internet context, “to the investigation of a geographical area in which specific crimes are known to be occurring to police” (A.R., Jaffer, vol. I, at p. 26).

[39] Yet the analogy calls for scrutiny. Physical spaces and actions are inherently limited in ways that virtual spaces and actions are not. The police in Barnes could have interacted with only so many people, approaching them one-by-one. And a physical space confines; it encloses people and things, and exhibits cycles of bustle and calm. Virtual spaces may escape those limits, inviting multitudes at all hours and distances, thus defying the boundaries we take for granted in the physical world. This explains why the Internet “provides fertile ground for sowing the seeds of unlawful conduct on a borderless scale” (R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 30). And it explains why online police investigations may bear far-reaching implications for state surveillance, civil liberties and the rule of law.  

[40] The space of the police investigation in Ahmad — a phone number — was inherently limited: functionally, it only allowed the police to contact the person who could answer the phone. Yet the Court foresaw that privacy would be a major concern in virtual investigations more generally. The “breadth of some virtual places . . ., the ease of remote access to a potentially large number of targets that technology provides law enforcement, and the increasing prominence of technology as a means by which individuals conduct their personal lives”, it wrote, made state surveillance over virtual spaces qualitatively different than surveillance in public spaces (paras. 36-37). The nature of those differences falls to be further considered here, in the context of the Internet.  

[41] This appeal, then, requires the Court to apply Ahmad, to further address how virtual and physical spaces differ, and to consider what those differences imply for the law. I look first at online spaces before considering the bona fide inquiry prong in more detail.
Details of the court's analysis continue at paras 52-71.

. R. v. Zakos

In R. v. Zakos (Ont CA, 2022) the Court of Appeal extensively explains criminal entrapment, a form of abuse of process [paras 21-51].

. R. v. Ramelson

In R. v. Ramelson (Ont CA, 2021) the Court of Appeal summarized the law of internet entrapment [paras 16-50].


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