Introduction
The Supreme Court of Canada has recently released four companion cases: R v Ramelson, 2022 SCC 44, R v Jaffer, 2022 SCC 45, R v Hawiffa, 2022 SCC 46, and R v Dare, 2022 SCC 47, all dealing with the legal boundaries of entrapment within virtual spaces in the context of Project Raphael.
Project Raphael was an online investigation conducted by the York Regional Police in which ads were posted by the police on the escort subdirectory of Backpage.com. These ads spurred text-message conversations where an undercover officer, after agreeing to provide sexual services, revealed themselves to be underage. All those who took up the invitation to meet the undercover officer in a designated hotel room were arrested. Between 2014 and 2017, 104 such arrests were made, for child luring and related offences.
This legal summary proceeds by first reviewing Ramelson, the first of the four cases in the Supreme Court’s “Project Raphael” tetralogy, in which the Supreme Court develops the principles of entrapment in virtual spaces, under the guiding light of recent Supreme Court jurisprudence on bona fide investigations.
Then, the three remaining cases are briefly surveyed to demonstrate how the facts of each fit within the framework developed in Ramelson.
The four criminal defendants in the above captioned appeals were each arrested and charged for child luring under 16, arrangement to commit sexual offences against a person under 16 and communicating to obtain sexual services from a minor.
R v Ramelson, 2022 SCC 44
(a) Procedural History
Corey Daniel Ramelson was convicted of all three offences at trial but applied to stay the proceedings based on entrapment. The judge ultimately concluded that Ramelson had been entrapped because the virtual space was too broad to support the police’s reasonable suspicion and the police lacked reasonable suspicion over Ramelson personally.
The Crown appealed, and the Court of Appeal set aside the stay of proceedings, concluding that the application judge erred in finding that Project Raphael was not a bona fide inquiry. The Court of Appeal also determined the application judge had failed to consider all of the Ahmad factors in assessing whether the virtual space was sufficiently precise.
(b) The Entrapment Doctrine
The Supreme Court reviewed the law of entrapment, finding it was not a defence but rather a form of abuse of process where the only remedy is a stay of proceedings. The Supreme Court found entrapment could occur in one of 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; or
(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.
For Project Raphael to have been a bona fide inquiry as the entrapment doctrine requires, two criteria must be met. First, the police must have had a reasonable suspicion over a sufficiently precise space. Second, the police must have had a genuine purpose of investigating and suppressing crime. Where those criteria are satisfied, the police are entitled 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] 1 SCR 449 at 463.
(c) The Internet as an Investigative Space
Prior to the cases discussed herein, the Supreme Court had only applied the bona fide inquiries prong of the entrapment doctrine twice. First, in Barnes, where the police approached anyone associated with Vancouver’s Granville Mall, an area roughly six city blocks long, with an offer to purchase drugs, on the suspicion that considerable drug trafficking was occurring in that area. The Supreme Court determined the Barnes investigation was a bona fide inquiry on the basis the police were acting in good faith and had a reasonable suspicion drug trafficking was taking place, in that precise area.
By contrast, in R v. Ahmad, 2020 SCC 11, the second case to consider the bona fide inquiry element, the Supreme Court determined that an investigation based on anonymous, unverified and uncorroborated tips targeting two phone numbers did not present a reasonable suspicion of illegal activity for the phone number itself. The Court held the police were not acting under a bona fide inquiry. The Ahmad investigation presented a unique problem for investigations into virtual spaces: the space of the investigation, a phone number, was functionally limited in that it only allowed the police to contact the person who answered the phone.
Ramelson furthered the issues developed in Ahmad, for an internet age. The Supreme Court found the internet enables people to act in ways that differ from how they might act in person, which poses new concerns about privacy. In the policing context, the internet as an investigative space may allow police to produce “vast amounts of highly personal information, in contexts where people may be unusually uninhibited, engaged in forms of self-discovery, or seeking anonymity (at para 47)
The Supreme Court was particularly concerned with the vast reach of online information, stating:
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 para 51)
Because of the internet’s informational and interactive complexity, police may be required 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” (at para 64). The Supreme Court also exhorted police to consider “whether to collect and retain data relevant to understanding an investigation’s scope, while taking care to do so in a way that minimizes the costs to privacy” (at para 65).
(d) The Decision in Ramelson
Ultimately, the Supreme Court dismissed Mr. Ramelson’s appeal finding that the police had a reasonable suspicion that sexual offences involving juveniles were taking place through the website’s user generated ads. By mimicking these ads and requiring respondents to text a number to engage further, the police tailored their investigation to an investigation space which was sufficiently precise. As a result, Mr. Ramelson, like the other three appellants in the related companion cases, had not been entrapped.
R v Jaffer, 2022 SCC 45
The Supreme Court adopted its reasoning in Ramelson on the issue of whether Project Raphael was a bona fide inquiry without much further analysis. However, Mr. Jaffer raised one issue that distinguished his case from that in Ramelson; namely, that he had undiagnosed Asperger’s Syndrome and submitted that such personal circumstances are relevant and ought to be considered when analyzing the inducement branch of the entrapment doctrine.
The inducement branch prevents police from exploiting a particular vulnerability of a person such as a mental handicap or a substance addiction. The Supreme Court briefly reviewed the inducement element of the entrapment doctrine, finding that even if the police “have a reasonable suspicion over an individual or act under a bona fide inquiry, they cannot ‘employ means which go further than providing an opportunity’ to commit a crime (at para 9).
The Supreme Court declined to re-evaluate the inducement framework, nor did the Court decide whether Mr. Jaffer had been so induced. Instead, the Court deferred to the jury, who had “full knowledge of Mr. Jaffer’s circumstances” and rejected his evidence that he had intended to visit the hotel room solely to gather information.
R v Haniffa, 2022 SCC 46, R v Dare, 2022 SCC 47
Mr. Haniffa adopted the questions in issue as set out in the appellant’s factum in Ramelson and acknowledged that the “facts of the present case are sufficiently similar, so that the same conclusions must follow”. As a result, both appeals were dismissed in short order, adopting the reasoning in Ramelson as set out above.
Summary:
These decisions confirm that virtual spaces can be defined with sufficient precision for a bona fide inquiry. In Project Raphael, the escort subdirectory’s functions and interactivity allowed police to narrow the investigation’s scope to be sufficiently precise. The relationship between the user-created ads, the location where the police’s suspicion first arose, and the police-created ads was critical to defining the space and explained how the police-created ads could be tethered to reasonable suspicion.
As entire websites will rarely be sufficiently particularized, police must tailor online investigations to focus on carefully delineated virtual subspaces and consider how the selected space facilitates or inhibits data collection to address potential privacy issues.
For any questions on this article please contact a member of our Police Law + Liability group.
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