



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ghotra, 2020 ONCA 373

DATE: 20200612

DOCKET: C64911

Hourigan, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Akash Ghotra

Appellant

Alan D. Gold and Laura J. Metcalfe, for
    the appellant

Katie Doherty, for the respondent

Heard: February 18, 2020

On appeal from the conviction entered on
    May 3, 2016 by Justice Bruce Durno of the Superior Court of Justice, sitting
    without a jury, with reasons reported at [2016] O.J. No. 7161, and from the
    dismissal of an application for a stay of conviction on September 13, 2016,
    with reasons reported at 2016 ONSC 5675, 342 C.C.C. (3d) 128.

B.W. Miller J.A.:


[1]

The appellant, a 26-year-old medical student, started
    a conversation in an internet chat room with mia_aqt98 in November 2012. He asked
    for her age, sex, and location. Mia answered that she was a 14-year-old girl.
    Within minutes, the appellant turned the conversation explicitly sexual. They
    chatted on and off over four days, culminating in his proposal they meet up for
    sex. In reality, Mia was an online persona created by a Peel Regional Police
    officer as part of an investigation by the Internet Child Exploitation Unit (ICE)
    into online child luring. When the appellant attended at an agreed meeting
    place, he was arrested. He gave a police statement shortly after speaking with
    duty counsel.

[2]

The appellant was convicted of internet child
    luring, contrary to s. 172.1(1)(b) of the
Criminal Code
. He received a
    six-month custodial sentence. At the close of the trial, the appellant brought
    an application for a stay on the basis of entrapment. The application was
    denied: 2016 ONSC 5675, 342 C.C.C. (3d) 128 (Entrapment Ruling). He appeals
    against conviction on the bases of entrapment and a violation of his right to
    counsel under s. 10(b) of the
Charter of Rights and Freedoms
.

[3]

For the reasons that follow, I would dismiss the
    appeal.

A.

Background

[4]

Police Constable Hutchinson worked in the ICE
    Unit of Peel Regional Police. Her responsibilities included investigating the
    exploitation of children on the internet. Her method of investigation was to adopt
    the persona of a child and engage in chats with unknown persons online.

[5]

PC Hutchinson created a Yahoo Messenger account with
    the username mia_aqt98. She testified that she chose Mia to indicate that
    she was female, that the abbreviation aqt meant a cutie, and that 98 suggested
    a year of birth of 1998, which at the time of the offence would have indicated an
    age of 14 years. The public profile she created, which was visible to other
    users, displayed her name as Mia Andrews, age 19, with date of birth November
    10, 1993. One of Yahoos conditions of use was that participants attest to
    being 18 years of age or older.

[6]

On November 27, 2012, when PC Hutchinson logged
    into a chat room called Toronto Global Chat 1, the appellant was already logged
    in. Like any other user logged in at that time, he received an automatic
    notification that mia_aqt98 had logged in and was now present in the chat room.

[7]

The appellant initiated a private conversation,
    outside the chat room, with hi and asl?, meaning age, sex, and location. Mia_aqt98
    answered, 14, f and brampton, meaning 14 years old, female, and living in
    Brampton.

[8]

The appellant asked if Mia wanted to go to a
    movie, and Mia declined, saying i dont even kno u and i nvr chilled wit an
    older boy b4. The appellant volunteered that he was a medical student, with his
    own car, and living on his own. Mia asked the appellant if he saw that she was
    14. He replied yeah yeah. thats cool and we can be friends.

[9]

The appellant then asked Mia why she didnt have
    a boyfriend, whether she liked anyone from school. He then turned the
    conversation explicitly sexual, asking about her sexual experience, whether she
    masturbated. Over the next few days, he returned to the themes of masturbation
    and pornography, offered to coach her on how to masturbate, and described what
    he would like to do with her sexually. He sent her a link to a pornographic
    video of a couple engaged in intercourse, assured Mia that the woman in the
    video was loving it, and that in any event they would not start off with intercourse
    right away. When she expressed reticence because of her young age, he was reassuring:
    u want for ur first time sex to be with someone older than u/ who knows what
    he is doing. When he asked if she had told anyone about him, she said no. When
    she asked if the appellant had told anyone about her, he replied not yet.. they
    will be all lik u r dating such a yound girl.

[10]

On November 29, 2012, the appellant asked to
    meet Mia, and she agreed to skip school and meet him at her apartment the next
    day. On November 30, 2012, the two had further text communications. Mia asked
    the appellant to meet at her apartment. He told her he would meet her in the
    lobby. When he texted from the lobby, police officers arrested him.

[11]

After speaking with duty counsel, the appellant
    gave a police statement in which he discussed his chat conversations with Mia. In
    a pre-trial
voir dire
, the trial judge found the police statement to
    be admissible under s. 24(2) of the
Charter
, dismissing almost all of
    the appellants arguments that the statement was involuntary or proffered in
    breach of his rights under
Charter
ss. 10(a) and (b): [2015] O.J. No.
    7328 (S.C.) (Statement Ruling).

[12]

At trial, the appellant acknowledged his
    participation in the chats, but claimed that he believed he was communicating
    with an adult engaged in role-playing. He testified that he had no intention of
    engaging in sexual activity with someone underage.

[13]

The trial judge rejected the appellants
    evidence. He was satisfied beyond a reasonable doubt that the appellant
    believed he was communicating with an underage person, and that the communication
    was for the purpose of committing sexual touching.

B.

The Entrapment Application

[14]

Upon conviction, the appellant brought an
    entrapment application to stay proceedings. He argued that PC Hutchinson lacked
    the requisite grounds to offer an opportunity to commit an offence by posing
    as a 14-year-old girl. The trial judge dismissed the application on the basis
    that (1) PC Hutchinson did not offer an opportunity for the appellant to
    commit the offence, and (2) if there was an opportunity offered, it was made in
    the course of a
bona fide
investigation.

[15]

For the reasons given below, I would dismiss the
    appeal on the basis that the trial judge did not err in concluding that the
    officer did not provide an opportunity to commit an offence. It is therefore
    unnecessary to address the issue of whether there was a
bona fide
investigation.

[16]

The defence of entrapment flows from the doctrine
    of abuse of process. It is not a substantive defence to allegations of criminal
    wrongdoing, but instead allows for a conviction to be stayed where the investigative
    conduct of the police was exploitative or corrupting. As the Supreme Court
    explained in
R. v. Mack
, [1988] 2 S.C.R. 903, [i]n certain cases the
    police conduct will be offensive because it exploits human characteristics that
    as a society we feel should be respected: at p. 963. The court provided the
    following example of police conduct that would constitute entrapment, at p.
    963:

[I]f the law enforcement officer or agent appeals
    to a persons instincts of compassion, sympathy and friendship and uses these
    qualities of a person to effect the commission of a crime, we may say this is
    not permissible conduct because it violates individual privacy and the dignity
    of interpersonal relationships, and condemns behaviour that we want to
    encourage.

[17]

This court recently summarized the branches of
    the entrapment doctrine in
R. v. Ahmad
, 2018 ONCA 534, 141 O.R. (3d)
    241, at para. 32, revd in part but not on this point, 2020 SCC 11:

In
Mack
, at pp. 964-65, the Supreme Court set out the two principal
    categories of entrapment. The defence is available when either:

1) 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

2) 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.

[18]

At para. 31 of
Ahmad
, this court
    explained the onus on the accused in an entrapment application:

[G]iven the serious nature of an entrapment
    allegation and the substantial leeway given to the state to develop techniques
    to fight crime, a finding of entrapment and a stay of proceedings should be
    granted only in the clearest of cases:
Mack
, at pp. 975-76. The
    accused must establish the defence on a balance of probabilities:
Mack
,
    at p. 975.

[19]

In
R. v. Barnes
, [1991] 1 S.C.R. 449,

the Supreme Court affirmed the basic rule articulated in
Mack
,
    that the police may only present the opportunity to commit a particular crime to
    an individual who arouses a suspicion that he or she is already engaged in the
    particular criminal activity: at p. 463. It also affirmed an exception to this
    rule where police are undertaking a
bona fide
investigation directed
    at an area where it is reasonably suspected that criminal activity is
    occurring: at p. 463. Where police neither have reasonable suspicion of an individual
    already engaged in crime, nor are investigating a location that is reasonably
    suspected of being a hub of criminal activity, presenting an opportunity to
    commit a particular crime amounts to random virtue testing, and is not
    permitted. The Supreme Court most recently affirmed these principles in
Ahmad
,
    in which a majority of the court held that the entrapment framework from
Mack
has stood the test of time and applies with full force to contexts such as
    child luring: at para. 23.

[20]

In this appeal, there was no allegation that the
    police acted in a way to induce the appellant to commit an offence. The
    application turned solely on the first branch: whether the police provided the
    appellant with an opportunity to commit an offence, and if so, whether the
    police were undertaking a
bona fide
investigation in an area where
    they had a reasonable suspicion that crime was occurring. It is common ground
    that the police had no individualized reasonable suspicion that the appellant himself
    was engaged in criminal activity when PC Hutchinson responded to his question
    asl?.

[21]

Much of the entrapment case law focuses on the
    distinction between presenting an individual with an opportunity to commit an
    offence, and merely taking a step in investigating criminal activity. The
    former is entrapment unless the police first have reasonable suspicion. The
    latter is permissible police conduct.

[22]

The case law has struggled to articulate the basis
    for the distinction, preferring to make concrete factual findings about what
    has constituted an opportunity and what has not. This court recognized that the
    distinction will sometimes be difficult to draw:
R. v. Bayat
, 2011
    ONCA 778, 108 O.R. (3d) 420, at para. 19. One source of the difficulty is that,
    conceptually, providing an individual with an opportunity to commit an offence is,
    in a literal sense, a step in investigating criminal activity. If such a broad
    conception of providing an opportunity were to be adopted, the distinction
    would collapse. As one commentator has pointed out, the mere presence of a
    plainclothes officer creates an opportunity, loosely defined, for someone to
    offer them illegal drugs and thereby commit an offence: Brent Kettles, The
    Entrapment Defence in Internet Child Luring Cases (2011) 16 Can. Crim. L. Rev.
    89, at p. 91.

[23]

The case law, however, has specified a narrow
    conception of providing an opportunity, with the analysis often focusing on
    whether the police or the accused took the initiative in the interaction and
    when:
Bayat
;
R. v. Imoro
, 2010 ONCA 122, 251 C.C.C. (3d) 131;
R. v. Swan
, 2009 BCCA 142, 244 C.C.C. (3d) 198. The narrow conception
    of providing an opportunity excludes investigative techniques where the originating
    criminal spark comes from the accused.

[24]

The trial judge held that the police did not
    provide an opportunity to commit the offence. At paras. 51-55 of the Entrapment
    Ruling, he pointed to several facts in support of this conclusion, including:

(1)

it was the appellant who initiated the conversation
    with Mia;

(2)

it was the appellant who asked Mias age; and

(3)

it was the appellant who, being repeatedly told
    Mia was 14, turned the conversation to sexual inquiries.

[25]

The trial judge drew support from
Bayat
for the proposition that where it is the accused who takes the lead in
    conversation and turns it toward the commission of an offence, the police have
    not provided the accused with an opportunity to commit the offence: Entrapment
    Ruling, at para. 54;
Bayat
, at para. 21.

[26]

The appellant argues that the trial judge used
    an inappropriately narrow conception of providing an opportunity. The appellant
    argues that the conception of an opportunity to commit an offence from
Mack
is the mere
chance
to commit an offence, such that
    the moment the appellant was confronted with a 14-year-old girl in a place
    where he had no reason to expect to meet a 14-year-old girl, he was provided
    with an opportunity to commit an offence. But for the presence of a 14-year-old
    girl in an adult chat room, he argues, he would not have had an opportunity to commit
    the offence of luring a 14-year-old girl.

[27]

In support of the argument for this broad
    conception of providing an opportunity, the appellant argues that on the narrower
    conception, the category of taking an investigative step would expand and the
    category of providing an opportunity would effectively disappear. The entrapment
    doctrine would collapse into inducing the offence, which is always prohibited, and
    taking an investigative step, which is generally permitted even without
    reasonable suspicion.

[28]

The broad conception of providing an
    opportunity advanced by the appellant is a lonely one, unsupported by the case
    law and conflicting with binding authority. On this basis alone, the appeal must
    fail.

[29]

Providing an opportunity is not established by but-for
    causation  that but for the presence of the investigating officer posing as a
    14-year-old girl, the appellant would not have had the opportunity to commit
    the offence. In
Ahmad
, this court cautioned against an overly
    technical approach to the entrapment doctrine that detaches the doctrine from
    its purpose of preventing police investigations that offend against decency and
    fair play: at para. 39.

[30]

In
Ahmad
, the Supreme Court held that in
    order to allow the police flexibility to investigate crime, an officers actions
    must be sufficiently proximate to conduct that would satisfy the elements of
    the offence in order to constitute an opportunity: at para. 64. In this case,
    the offence was not in talking with a 14-year-old girl. The offence was communicating
    with a child for the purposes of committing an offence, such as sexual
    touching. The appellants argument could only succeed, it seems to me, in a
    world where any 14-year-old girl who agrees to chat on-line with an adult male in
    a general interest chat room thereby communicates that she is potentially receptive
    to a sexual encounter. That is not our world.

[31]

Accordingly, I do not agree that the trial judge
    committed any error. Where, as here, the police conduct is nothing other than placing
    a potential victim in an accuseds line of vision, and where the accused is
    given no reason to believe that the victim would be a willing participant in
    the offence committed, the police have not provided an opportunity to commit an
    offence. It was the appellant who initiated contact with the undercover officer
    masquerading as a 14-year-old girl. It was the appellant who sought to
    ascertain her age. Having learned that she was underage, it was the appellant
    who ventured into sexual topics and suggested an in-person meeting. Throughout
    these interactions, the undercover officer repeatedly raised the issue of the
    fictional victims youth, but the appellant persisted.

[32]

I would dismiss this ground of appeal.

C.

Section 10(b) Right to Counsel

[33]

Section 10(b) of the
Charter
provides a
    detained person with the right to retain and instruct counsel without delay
    and to be informed of that right. In
R. v. Bartle
, [1994] 3 S.C.R.
    173, the Supreme Court specified that this right imposes the following requirements:
    (1) informational: to advise the detainee of the right to retain and instruct a
    lawyer without delay, and of the existence and availability of legal aid and
    duty counsel; (2) implementational: where the detainee indicates a desire to
    exercise the right, to provide a reasonable opportunity; and (3) forbearance: to
    refrain from eliciting evidence from the detainee until the detainee has had a reasonable
    opportunity to exercise the right.

[34]

The purpose of the s. 10(b) right is to guard
    against the risk of involuntary self-incrimination and ensure that a choice to
    speak to police is free and informed:
R. v. Taylor
, 2014 SCC 50,
    [2014] 2 S.C.R. 495, at para. 21.

[35]

The appellant argues that the trial judge erred
    in finding that the police did not infringe the appellants s. 10(b) rights. The
    arresting officer initially provided the appellant with an abbreviated instruction
    on his s. 10(b) rights because the appellant was in a highly emotional state
    and the officer was concerned that he would not be able to track the standard
    caution. The officer advised the appellant that if he did not have his own
    lawyer (which he did not), the police would call duty counsel for him. Minutes
    later, another officer read the standard caution to the appellant, which
    informed the appellant that he could speak with any lawyer of his choosing. The
    appellant then spoke with duty counsel.

[36]

Subsequently, in an interview with police, the
    appellant returned to the issue of consulting counsel. He relayed information
    he received from duty counsel that if he wanted to, he was entitled to look in
    a directory and choose his own lawyer. He asked if he was entitled to make more
    than one call, which set up the following exchange:

Cst. Ullock: Youre, youre entitled to speak
    to a lawyer okay, if there is a specific lawyer that you want to talk to

Appellant: I have, I dont have any.

Cst. Ullock: Yeah like if you say here is the
    name of a lawyer I want to talk to him.

Appellant: Okay.

Cst. Ullock:  then you can you know.

[37]

On a
voir dire
, the trial judge agreed
    that the initial advice that the appellant received was incorrect, in that it
    omitted that in addition to accessing duty counsel, he also had the option to search
    for a lawyer of his own choosing: Statement Ruling, at para. 76. He found,
    however, that the advice the appellant received minutes later from another
    officer remedied the defect and properly conveyed to the appellant that he
    could contact any lawyer: at paras. 83-84.

[38]

The appellant argues that the trial judge erred
    in finding that the police had satisfied the informational component of the s.
    10(b) right. He argues that he ought to have been told that he had the option
    of looking up a lawyer for himself, and the police ought to have facilitated the
    exercise of this right by providing him with a directory. He only discovered he
    had the right to choose his own lawyer when so advised by duty counsel, but was
    then rebuffed by Cst. Ullock when he tried to make this request.

[39]

The trial judge was satisfied that when the
    totality of the circumstances were considered  including the appellants initial
    emotional state, the fact that the information he received was initially
    incomplete, and that he was subsequently provided with a standard caution and
    spoke to duty counsel  the appellant had not misunderstood his rights.

[40]

This finding by the trial judge, that the
    appellant had not misunderstood his rights and chose to speak with duty
    counsel, was open to him. The onus was on the appellant to establish that he
    misunderstood his rights such that s. 10(b) was infringed. He did not testify
    on the
voir dire
. The trial judge found that he did not, in his
    conversations with Cst. Ullock, convey dissatisfaction with the advice he had
    received from duty counsel or confusion about his right to counsel: [2015] O.J.
    No. 7328, at paras. 82, 95.

[41]

The appellant did not request access to a directory
    or phone book in which to search for counsel. In the circumstances, as he had
    already spoken to duty counsel and understood that he was free to find a lawyer
    of his choosing, I am not persuaded that the police breached the appellants
    rights in not offering him a directory.

[42]

I would not give effect to this ground of
    appeal.

D.

Disposition

[43]

I would dismiss the appeal.

B.W. Miller J.A.

I agree. C.W. Hourigan J.A.


Nordheimer J.A.
(dissenting)

[44]

I have reviewed my colleagues reasons. I agree
    with his analysis and conclusion regarding the s. 10(b) issue. However, I
    disagree with his conclusion on the entrapment issue. Consequently, I would
    allow the appeal, set aside the conviction, and enter a stay of proceedings.

[45]

My colleague has set out the background facts,
    so I do not need to repeat them.

[46]

There is agreement on which of the branches of
    entrapment laid out in
R. v. Mack
, [1988] 2 S.C.R. 903,

is at
    issue in this case. It is the first branch, which Lamer J. stated in the
    following terms, at p. 964:

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[.]

Opportunity to commit an offence

[47]

The first question then is whether the officer
    provided the appellant with an opportunity to commit an offence. As this court
    recognized in
R. v. Bayat
, 2011 ONCA 778, 108 O.R. (3d) 420, at para.
    19:

The issue is a difficult one and the line
    between simple investigation and offering an opportunity to commit an offence
    will sometimes be difficult to draw.

[48]

My colleague concludes that that line was not
    crossed. I disagree. In my view, the officer did provide an opportunity to
    commit an offence. After all, that was the raison dêtre for her presence in
    the chat room. The officer was looking for people who might approach her,
    knowing that she was underage. In considering this issue, my colleague does not
    address, nor did the trial judge, the fact of the persona that the officer
    created and presented to others in the chat room. In particular, the officer
    gave evidence that she adopted the user name mia_aqt98 for the purpose of
    communicating to others in the chat room that she was female, that she was a
    cutie, and that she was 14 years old.

[49]

In my view, the adoption of this username, for
    the reasons that the officer did, was an invitation or enticement to improper
    conduct. It was the digital equivalent of an undercover officer standing on a
    street corner with a sign saying drug user. In that situation, the undercover
    officer would be advertising to any drug dealer that she was a potential
    customer. It would clearly be offering an opportunity for a drug dealer to
    approach her for the purpose of selling her drugs. Whether one characterizes it
    as an invitation to commit an offence or an opportunity to commit an offence,
    the result is the same. It is that fact that distinguishes this case from some
    others, such as
Bayat
and
R. v. Imoro,
2010 ONCA 122, 251
    C.C.C. (3d) 131, affd 2010 SCC 50, [2010] 3 S.C.R. 62.

[50]

The officer did not simply go into the chat room
    as an adult, in the normal course of her duties, with no intention to
    investigate or create a specific offence. In other words, the officer was not
    simply walking her beat in the chat room. If that had been the case, there
    would be no offering of an opportunity just as there would be no opportunity
    offered if a plain clothes officer was simply standing on a sidewalk and a
    person approached and offered to sell her drugs.

[51]

The officers own evidence reinforces my view of
    her actions. Her whole purpose in going into the chat room was to try and find
    potential offenders. She did not suggest otherwise. She was clearly trying to
    entice some contact of the very type that the appellant provided. To conclude
    that the officer was not providing an opportunity to commit an offence is
    inconsistent with her presence in the chat room and the adoption of the persona
    that she did, which she then advertised to the other participants in the chat room.
    Keep in mind, on this point, that this was not a chat room for teenagers, nor
    was it the type of chat room that teenagers would be expected to frequent. It
    was an adult-only chat room. It was also not a chat room devoted to sexual
    interests or sexual activities.

[52]

In my view, the officer in this case created a
    situation that is no different in kind than the example of offering a wallet,
    used by Lamer J. in
Mack
, at p. 957. In this case, the officer was the
    wallet. She acted as a lure. She wanted to see if someone would take the bait
    and the appellant did. She provided the opportunity. Any other conclusion does
    not align with the reality of the situation.

Bona fide
inquiry

[53]

Having concluded that the opportunity to commit
    an offence was provided, it then becomes necessary to determine if the officer
    had a reasonable suspicion that the appellant was already engaged in criminal
    activity, or that she was acting pursuant to a
bona fide
investigation. No one suggests that the officer had any suspicion about the
    appellant. It is the
bona fide
investigation aspect that is relied
    upon.

[54]

However, as the Supreme Court of Canada has made
    clear recently in
R. v. Ahmad
, 2020 SCC 11, the
bona fide
investigation aspect of the entrapment doctrine still requires the police to
    have a reasonable suspicion. If the police do not have a reasonable suspicion
    about the individual, then they must have a reasonable suspicion about the
    location. As Karakatsanis, Brown and Martin JJ. said, at para. 20:

A
bona fide
investigation is not a
    separate and freestanding way for police to entrap an individual, but a means
    of expressing the threshold of reasonable suspicion in a location.

[55]

For the police to be engaged in a
bona fide
investigation that is directed towards a location, as opposed to an individual,
    the police must have a reasonable suspicion that the location is a source of
    criminal activity. Lamer C.J. stated the requirement this way in
R. v. Barnes
, [1991] 1 S.C.R. 449
, at p. 463:

The basic rule articulated in
Mack
is
    that the police may only present the opportunity to commit a particular crime
    to an individual who arouses a suspicion that he or she is already engaged in
    the particular criminal activity. An exception to this rule arises when the
    police undertake a
bona fide
investigation directed at an area where
    it is reasonably suspected that criminal activity is occurring.

[56]

The trial judges approach to this requirement
    was to conclude, in essence, that any chat room on the Internet is a place
    where criminal activity is likely occurring. He said, specifically, that [t]he
    internet chat room was a place where internet luring was likely occurring:
    2016 ONSC 5675, 342 C.C.C. (3d) 128, at para. 58. The trial judge does not
    refer to any evidence in support of this conclusion and none is to be found in
    the record. Contrary to the submissions of Crown counsel at trial, the fact is
    that the officer did not offer any evidence that this chat room was a location
    suspected of child luring. It appears that the officer essentially chose this
    particular chat room at random, the only criteria being that it had to be a
    chat room where the participants were likely to be within her geographic
    jurisdiction.

[57]

The trial judge relied on the decision in
R.
    v. Levigne
, 2010 SCC 25, [2010] 2 S.C.R. 3, to support his conclusion on
    this point. I am unable to see how that decision assists on this issue. As
    noted by the trial judge,
Levigne
addresses the reasons behind the
    enactment of the child luring provision in the
Criminal Code
, R.S.C.,
    1985, c. C-46. While the decision does say that the provision was put in place
    to facilitate the investigation of such offences, it does not say why the
    officer was in the particular chat room in that case nor does it say, or
    suggest, that the entire Internet is so rife with criminal activity of this
    type that it provides reasonable suspicion for an investigation in every
    contour of its existence.

[58]

On this point, there is a clear distinction
    between an Internet chat room of the type involved here, and sites such as
    Craigslist, which have featured in other decisions involving this issue (see,
    for example,
R. v. Argent
, 2016 ONCA 129). The sexual nature of
    activities on certain portions of Craigslist is well-known. The police often
    get complaints about them. Such information can provide the reasonable
    suspicion necessary for a
bona fide
investigation. But those
    situations are different in kind than what was involved in this case.

[59]

The police were required to have a reasonable
    suspicion that child luring would be occurring within this chat room, in order
    to establish that any investigation was a
bona fide
one. This
    requirement is confirmed in
Ahmad
, where
Karakatsanis,
    Brown and Martin JJ. said, at para. 24:

This standard requires the police to disclose
    the basis for their belief and to show that they had legitimate reasons related
    to criminality for targeting an individual or the people associated with a
    location. [Citations omitted.]

[60]

The fact is that the police did not offer that
    evidence. Indeed, the Crown on appeal does not even suggest that the police had
    any such evidence.

[61]

Rather, the Crown proposes, and the trial judge
    appears to have accepted, that Internet chat rooms generally are locations
    where a reasonable suspicion exists with respect to the prospect of child
    luring. That broad-based approach to reasonable suspicion was rejected in
Barnes
and rejected again in
Ahmad
. Indeed, the application of the reasonable
    suspicion standard to virtual spaces was directly addressed in
Ahmad
,
    where
Karakatsanis, Brown and Martin JJ. said, at para.
    41:

We emphasize that the virtual space in
    question must be defined with sufficient precision in order to ground
    reasonable suspicion. Reviewing courts must scrutinize the evidence that
    prompted the inquiry to ensure the police have narrowed their scope so that the
    purview of their inquiry is no broader than the evidence allows.

And further, at para. 43:

In our view, entire websites or social media
    platforms will rarely, if ever, be sufficiently particularized to support
    reasonable suspicion.

[62]

It is clear, in my view, that the officer in
    this case was engaged in random virtue testing, as that concept is properly
    understood. It is akin to the situation referred to in
Barnes
, where
    Lamer C.J. said, at p. 462:

I note that in many cases, the size of the
    area itself may indicate that the investigation is not
bona fide
. This
    will be so particularly when there are grounds for believing that the criminal
    activity being investigated is concentrated in part of a larger area targeted
    by the police.

[63]

While the situation in
Barnes
dealt
    with a geographic area in the City of Vancouver, it serves up the same problem
    if one considers the Internet as a geographic area. Just because criminal
    activity may occur in one part of the Internet does not justify the police
    entering any area to conduct an investigation, just as the fact that drug
    activity took place in the Granville Mall area of Vancouver would not have
    justified an investigation outside of that specific area. The police must have
    evidence specific to the area that they are going to investigate.

[64]

As I have already pointed out, there are parts
    of the Internet that are reasonably suspected of being misused for criminal
    purposes. Craigslist is the example to which I referred, but there are others. The
    police did not offer any evidence that it is problematic to separately deal
    with the component parts of the Internet for investigative purposes. Yet their
    approach in this case relies on a blanket of suspicion over the entire
    Internet.

[65]

It is not the role of the police to randomly
    offer members of the public the chance to commit an offence and then see who
    does. The problem with random virtue testing, as identified in
Mack,
presents
    itself in this very case. It was described by Lamer J., at p. 965:

The absence of a reasonable suspicion or a
bona
    fide
inquiry is significant in assessing the police conduct because of the
    risk that the police will attract people who would not otherwise have any
    involvement in a crime and because it is not a proper use of the police power
    to simply go out and test the virtue of people on a random basis.

[66]

One has to wonder whether there is any reason to
    believe that the appellant would have become involved in this crime, but for
    the officers actions in this case. It is this reality that provides the reason
    why the police are prohibited from engaging in random virtue testing because
    it prey[s] on the weakness of human nature to entice individuals into
    offending:
Ahmad
, at para. 28.

[67]

In that regard, one must not lose sight of the
    fact that the Internet now provides a place for social exchange and interaction
    that might previously have been provided only by bars, social clubs, or other
    physical events and locations. As McLachlin C.J. observed in
R. v. Marakah
,
    2017 SCC 59, [2017] 2 S.C.R. 608, at para. 28:

The millions of us who text friends, family,
    and acquaintances may each be viewed as having appropriated a corner of this
    electronic space for our own purposes. There, we seclude ourselves and convey
    our private messages, just as we might use a room in a home or an office to
    talk behind closed doors. The phrase chat room to describe an Internet site
    through which people communicate is not merely a metaphor.

[68]

As this observation makes clear, the actions of
    the police in a chat room engage privacy concerns. People who participate in
    private conversations on the Internet are entitled to expect that the police
    will not be surveilling their conversations, including instigating or
    participating in them for investigative purposes not based on a reasonable
    suspicion of criminal activity. This point was also made in
Ahmad
where
    Karakatsanis, Brown and Martin JJ. said, at para. 38:

Section 8 jurisprudence recognizes that at the
    heart of liberty in a modern state is the need to set a premium on the
    ability of its citizens to carve out spaces in their lives, sanctuaries where they
    may interact freely, unhindered by the possibility of encounters with the state.
    [Citations omitted.]

[69]

Finally, one must guard against allowing the
    nature of the offence to distort the application of the entrapment doctrine.
    Its application does not depend on the nature of the offence, or its
    seriousness, or the fact that the offence may be difficult to investigate. The
    fact that the appellant engaged in the conduct at issue cannot impact the
    conclusion regarding the application of the entrapment doctrine. As Lamer J.
    made clear in
Mack
, at p. 951, culpability is not the basis for the
    application of the doctrine. In considering entrapment, we look at the actions
    of the police, not of the accused.

Conclusion

[70]

I would allow the appeal, set aside the conviction,
    and enter a stay of proceedings.

Released: CWH JUN 12 2020

I.V.B.
    Nordheimer J.A.


