



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Argent, 2016 ONCA 129

DATE: 20160212

DOCKET: C61144

MacPherson, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryl Argent

Appellant

Daryl Argent, in person

Michael Dineen, duty counsel

Joanne Stuart, for the respondent

Heard: February 8, 2016

On appeal from the conviction entered on August 14, 2015
    by Justice Dale Parayeski of the Superior Court of Justice, sitting without a
    jury, and from the sentence imposed on September 18, 2015.

ENDORSEMENT

[1]

The appellant was convicted of luring a child to engage in sexual
    activity. He raises several grounds of appeal. With the assistance of duty
    counsel, he submits that the trial judge erred in dismissing his request for a
    stay of the conviction on the basis of entrapment. On his own, he raises other
    issues which we will address individually.

Facts of the Offence

[2]

The appellant posted two advertisements on Craigslist seeking someone interested
    in smoking marijuana and more. The ads included photos of the appellants
    genitals. He was also shown holding a marijuana bud. The ad specified that he
    was looking for a woman between the ages of 18 and 30.

[3]

Detective Brien Smith worked with the Child Pornography Unit of the
    Hamilton Police Service. Detective Smith learned in training that people who
    seek children will mention the age of 18. This is because Craigslist does not
    allow personal erotic ads to list ages less than 18. He spotted the appellants
    ads based on this training.

[4]

Detective Smith responded to the ad under the guise of a 14-year-old
    girl named Carlee. Carlees first message was:

Hey..cool pix! im not sure which is biggerthe bud in your hand
    or your bud! lol!smoked for first time at my gr8 grad a few weeks ago..yeah!
    lemme know when you r smokin again some timeluv to try again

[5]

Carlee and the appellant then exchanged emails and messages which
    indicated that she was 14 years old, a virgin, in grade 8, and inexperienced
    with drugs and sex. The appellant pursued the correspondence with talk of oral
    sex and condoms for vaginal sex.

Conviction

[6]

The trial judge rejected the appellants submission that he did not
    realize that Carlee was underage. He found that the appellant knew Carlee was
    14 and specifically pursued sexual activity.

[7]

The trial judge was then asked to stay the conviction on the grounds
    that the appellant was entrapped by the police. He denied the application for a
    stay of proceedings in
R. v. Argent
, 2014 ONSC 4270, [2014] O.J. No.
    3041. The trial judge found that, although the police provided the opportunity
    to commit the offence, the officer had reasonable grounds to suspect that the
    appellant was already engaged in criminal activity and provided the opportunity
    pursuant to a
bona fide
inquiry. Finally, he was satisfied that the
    police did not induce the crime.

The Entrapment Ground of Appeal

[8]

The Supreme Court of Canada summarized the proper approach to entrapment
    in
R. v. Mack
, [1988] 2 S.C.R. 903, at pp. 964-965. Entrapment occurs
    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; or

b) Although having such 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.

[9]

The appellant submits that the officer did not have reasonable grounds
    from the outset to suspect that there was criminal activity going on. The ad
    specified a woman of at least 18 years of age and this, on its own, does not
    provide a sufficient basis for suspicion. The appellant submits further that it
    was the officer who sexualized the communication by referring to the bud in
    the first email. This response, it is argued, manufactured the criminal
    activity and induced the crime.

[10]

We
    do not agree.

[11]

The
    police had reasonable grounds to suspect criminal activity when they viewed the
    ad as posted and as the conversation with the appellant unfolded.

[12]

The
    ad included a photo of the appellants penis and requested a smoking partner
    and more. The polices consideration of the use of the age 18 as a flag for
    potential child abusers was reasonable. This was the lowest age that could be
    posted.

[13]

We
    do not agree that the officer manufactured the criminal activity by sexualizing
    the first communication. The photos had already done that. The communications
    from the officer made it clear from the outset that Carlee was 14, had just
    graduated from grade 8, was inexperienced sexually, and was under the watch of
    her mother. The questions posed by the officer were open-ended.  It was the
    appellant who pursued the discussion of sexual activity. These facts support
    the officers suspicion that criminal activity was underway.

Additional Grounds of Appeal

[14]

We
    do not accept the appellants additional grounds of appeal.

[15]

First,
    the appellant argues that the he was denied a trial by jury. There is nothing
    in the record to demonstrate that he requested and was denied a jury trial.

[16]

Second,
    he submits that his name was incorrect on the search warrant and the arrest
    warrant. It is common ground that the name Daryl Shipland was on the warrants. This
    is his mothers surname. She lived in the house associated with the IP address.
    We find that there could have been no confusion caused by this misnomer and that
    no one could have been misled. The appellants correct name appeared on the Information.

[17]

Third,
    he argues that his medical condition was not taken into account. We reject this
    argument as the trial judge referred to his medical condition extensively in
    the sentencing reasons.

[18]

Fourth,
    the appellant submits that there were errors in the methodology used in his psychological
    assessment. The assessment was requested by the appellants counsel and put
    into evidence by him. He cannot now complain about the methodology used.

[19]

Finally,
    the appellant argues that Detective Smith tampered with evidence. There is no
    evidence to substantiate this assertion.

Disposition

[20]

The
    appeal is dismissed. No submissions were made as to the sentence appeal. Leave
    to appeal sentence is dismissed.

J.C. MacPherson J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


