



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jaffer, 2021 ONCA 325

DATE: 20210517

DOCKET: C64987

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Abbas Jaffer

Appellant

Breana Vandebeek, for the appellant

Tracy Kozlowski, Katie Doherty and Lisa
    Fineberg, for the respondent

Heard: January 12-13, 2021 by
    videoconference

On appeal from the conviction entered by
    Justice Anne Mullins of the Superior Court of Justice, sitting with a jury, on October
    25, 2016, and the entrapment ruling dated October 16, 2017, and the sentence
    imposed on February 23, 2018.

Juriansz J.A.:

[1]

This appeal was argued together with two other
    defence appeals,
R. v. Haniffa
and
R. v. Dare
, and a Crown
    appeal,
R. v. Ramelson
. All of the appeals arose out of arrests and
    prosecutions pursuant to Project Raphael of the York Regional Police (YRP).
    Project Raphael was an undercover YRP investigation that began in 2014 with the
    objective of reducing the demand for sexual services from juveniles in the
    region by targeting the buyer side.

[2]

As part of the investigation, the police posted
    fake advertisements in the escorts section of the online classified
    advertising website Backpage. When persons responded to the ads, an undercover officer
    posing as the escort would disclose in the ensuing text chat that she was underage.
    Individuals who continued the chat and arranged sexual services and a price were
    directed to a hotel room to complete the transaction and were arrested and
    charged on their arrival.

[3]

The common issue in the four appeals is whether
    the individuals who were arrested and prosecuted pursuant to Project Raphael
    were entrapped by the police. The appellant also appeals his sentence.

[4]

For the reasons that follow, I would dismiss the
    appeal from the dismissal of the entrapment application. I would also dismiss
    the appellants appeal of his sentence.

A.

The facts in this case

[5]

In this case, the ad placed in the escort
    section of Backpage purported to have been placed by Kathy. Kathy described
    herself as a Tight Brand New Girl. The ad included photographs of a female
    police officer, whose face was not shown, posing as Kathy. The ad indicated Kathy
    was 18 years old, the minimum age allowed by Backpage.

[6]

On October 24, 2014, the appellant texted Kathy
    and asked her rates. Truong responded and, after exchanging several preliminary
    messages, texted, well im not quite 18 yet r u ok with that. The appellant
    responded, Yea Im okbut how much younger are u? 17? Truong responded, im
    turning 16 on sunday but I look 18. The conversation continued and the
    appellant texted, Ok can I ask why youre escorting if its okay with u?
    Usually people your age dont know about this industry. Truong responded
    saying that Kathys friend got her into it because she needed the money. The
    appellant eventually proceeded to the hotel.

[7]

When the appellant arrived at the room, he was
    arrested and charged with telecommunicating with a person he believed to be
    under the age of 18 contrary to s. 172.1(2) (child luring under 18), and
    communicating to obtain for consideration the sexual services of a person under
    18 contrary to s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual
    services from a minor) of the
Criminal Code
, R.S.C., 1985, c. C-46. While
    the information references s. 172.1(2), this count relates to the offence under
    s. 172.1(1)(a). Section 172.1(2) sets out the punishment for this offence. The
    appellant was also charged with two counts under s. 172.2(2) and a further
    count under s. 172.1(2) but was not tried on these charges.

[8]

At trial, the appellant testified that his
    initial purpose for responding to Kathys ad was to engage in a sexual
    relationship, but his intentions changed when he learned that Kathy was
    underage. He said he thought it was strange for Kathy to reveal her age and thought
    it was a cry for help  the only reason that an escort would reveal they were
    underage was out of fear of their pimp. As a result, he testified that he
    continued the interaction intending to assist Kathy and did not intend to
    engage in sex with her once he learned her age. In support of this testimony, the
    appellant gave evidence that he had arranged to meet an adult escort later the
    same evening and only had enough cash on his person to pay for a single escort.

[9]

When he was being arrested, the appellant told
    police that he intended to contact the police to help Kathy. The appellant
    claimed he had previously assisted the police in investigating the pimp of an
    escort he had met on Backpage and this was corroborated by police testimony at
    trial.

[10]

The jury disbelieved the appellants evidence
    and found him guilty of both counts. The sentencing judge stayed the conviction
    on s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a
    minor) based on
Kienapple v. R.
, [1975] 1 S.C.R. 729.


[11]

The appellant applied for a stay of proceedings
    on the basis he had been entrapped. The application was denied and the
    appellant was sentenced to six months incarceration, less credit for time on
    house arrest, resulting in an effective sentence of four months, two weeks and
    three days.

B.

arguments on appeal

[12]

The appellant submits the trial judge made three
    errors:

1.

by concluding Project Raphael was a bona fide
    inquiry and failing to find that he was entrapped;

2.

by failing to find the appellant had been
    induced into committing the offence; and

3.

by imposing an unfit sentence by refusing to
    impose a conditional sentence, failing to give sufficient reasons for the
    sentence imposed, and failing to assign appropriate weight to the aggravating
    and mitigating factors.

C.

Analysis

(1)

Opportunity-based entrapment

[13]

Appellants
    counsel adopted the submissions made in
Haniffa
on the issue of opportunity-based
    entrapment adding her own emphasis and references to the record in this case. As
    he had in
Haniffa
, Truong testified in this case that underage persons
    advertised on Backpage do not reveal their true age in their communications
    with unknown callers. He added, that if they did disclose their age, they would
    do so only when they met the customer face to face and felt comfortable. He
    said what typically happens is that the customer shows up expecting an
    18-year-old and the person turns out to be a child. Only when the customer takes
    the initiative to question their age, might their age come out.

[14]

Counsel submits
    this testimony shows the police had no real information as to the scale of the
    problem  how many underage persons were being sold on Backpage and how many customers
    knowingly purchased underage persons. She submits the information was so paltry
    that it cannot be said the police had reasonable suspicion.

[15]

I dealt with
    this argument in the comprehensive reasons of
Ramelson
. I explain that
    Truongs testimony, based on his extensive experience, gave the trial judge an
    evidentiary basis for concluding the police had reasonable suspicion persons
    were going onto Backpage and engaging underage persons thus committing the s.
    286.1(2)
(obtaining sexual services from a
    minor)
offence. Truong gave the same testimony in
    this case.

[16]

For the reasons
set out in
Ramelson
, I reject this argument.

(2)

Inducement-based entrapment

[17]

While
Ramelson
dealt comprehensively with
    the arguments related to opportunity-based entrapment, Mr. Jaffer raised the
    issue of inducement-based entrapment as well.

[18]

This branch of entrapment applies when the
    police, even though they may have a reasonable suspicion or are acting in the
    course of a bona fide inquiry, go beyond providing an opportunity and induce
    the commission of an offence:
R. v. Mack
, [1988] 2 S.C.R. 903, at pp.
    964-965;
R. v. Barnes
, [1991] 1 S.C.R. 449, at p. 460.
Mack
is an
    example of this second branch. A police agent persisted in attempting to
    persuade Mack, who had dated drug convictions, to participate in a large drug
    deal despite his refusals. Mack finally participated in the drug transaction
    because of the police agents persistence, his use of threats, and the offer of
    a large amount of money. Macks conviction was upheld by the British Columbia
    Court of Appeal. In allowing his appeal, the Supreme Court ruled he had been
    entrapped. Though the police had reasonable suspicion that Mack was involved in
    criminal conduct, they went too far in their efforts to attract him into committing
    the offence.

[19]

The Supreme Court in
Mack
set out a
    number of factors to consider to determine whether the police have employed
    means which go further than providing an opportunity at p. 966:

-

the type of crime being investigated and the availability of other
    techniques for the police detection of its commission;

-

whether an average person, with both strengths and weaknesses, in
    the position of the accused would be induced into the commission of a crime;

-

the persistence and number of attempts made by the police before the
    accused agreed to committing the offence;

-

the type of inducement used by the police including: deceit, fraud,
    trickery or reward;

-

the timing of the police conduct, in particular whether the police
    have instigated the offence or became involved in ongoing criminal activity;

-

whether the police conduct involves an exploitation of human
    characteristics such as the emotions of compassion, sympathy and friendship;

-

whether the police appear to have exploited a particular
    vulnerability of a person such as a mental handicap or a substance addiction;

-

the proportionality between the police involvement, as compared to
    the accused, including an assessment of the degree of harm caused or risked by
    the police, as compared to the accused, and the commission of any illegal acts
    by the police themselves;

-

the existence of any threats, implied or express, made to the
    accused by the police or their agents;

-

whether the police conduct is directed at undermining other
    constitutional values.

[20]

Counsel argued that the appellants factual
    circumstances strongly suggest that he is a person who succumbed to random
    virtue testing. He was 22 years old and went on Backpage seeking an 18-year-old
    escort. He had maintained an A average throughout university and graduated with
    a bachelors degree in science. He was of prior good character, from a close
    family that supported him, and active with his church. Counsel submitted his
    testimony showed he was an odd and strange person who was lacking in social
    relationships and could not form relationships with women. He testified he
    began seeing prostitutes because he could not get a girlfriend. He testified
    that his first encounter on Backpage, with a prostitute who was 40 years of age,
    was the first time he had held hands with a woman. The expert report of a
    clinical and forensic psychologist, which was subsequently obtained for
    sentencing, diagnosed the appellant as falling within the autistic spectrum of
    neurological disorders and with depression and anxiety. His chat history and
    phone records introduced at trial showed that he was not looking for someone
    underage. The day he was arrested he had talked with escorts ranging in age from
    18 to 40.

[21]

Counsel submits that the purpose of the law of
    entrapment is to promote societys respect for the administration of justice
    and not to lure people like the appellant into committing offences.

[22]

The trial judge observed that drawing the line
    between providing an opportunity and inducing the commission of an offence is
    not always easy but rejected the argument the appellant had been induced. She
    concluded that the evidence showed clearly that the appellant was determined
    to purchase sexual services and gave specific consideration to the information
    as to the age of the purveyor before he acted on his choices. The appellants
    messages in the text chat provided a basis for the trial judges conclusion.

[23]

I would not give effect to this ground of
    appeal.

(3)

The sentence appeal

[24]

The appellant was sentenced on his conviction for
    the s. 172.1 offence. As mentioned, the conviction under s. 212(4) (now s. 286.1(2))
    (communicating to obtain sexual services from a minor) was stayed. At the time
    he committed the offence the maximum punishment for the s. 172.1 offence was imprisonment
    for 10 years.

[25]

At sentencing, the appellant argued that a
    conditional sentence was appropriate given his youth, pro-social lifestyle, and
    personal background. He had been diagnosed as falling within the autistic
    spectrum of neurological disorders and suffered from severe depression and
    anxiety. The psychological testing also established that the appellant was not
    a pedophile and did not have a sexual preference for minors.

[26]

The trial judge found that the evidence at trial
    coincided with the assessment of the psychologist that he has not had
    opportunity for an appropriate, socially meaningful, expression of the sexual
    desires to be expected of a young adult. She found there was no evidence that
    the appellant was seeking sexual services from an underage person when he
    responded to the ad posted by the police, that he was unlikely to reoffend, and
    that he did not require rehabilitation. She concluded a lengthy custodial
    sentence would not serve the principles of sentencing, and as noted, imposed an
    effective sentence of four and one-half months incarceration.

[27]

The appellant submits that the trial judge's
    reasons are insufficient to explain why she refused to impose a conditional
    sentence, and do not permit meaningful appellate review of that refusal. Therefore,
    this court should sentence the appellant anew. In addition, the appellant
    submits that the COVID-19 pandemic is a collateral consequence that impacts the
    fitness of the sentence imposed. He requests that the court impose a sentence of
    house arrest to address the collateral consequence of the COVID-19 pandemic.

[28]

I am not persuaded the trial judges reasons are
    insufficient. While she does not specifically itemize the mitigating factors that
    she took into account, her detailed description of the appellants
    circumstances includes all those facts that the appellant submits are
    mitigating. And while she did not discuss the appellant's request for a
    conditional sentence, she did observe the crime was a grave one with a maximum
    punishment of 10 years imprisonment and did state that any lesser sentence
    would be inconsistent with the principles of denunciation and deterrence.

[29]

I would dismiss the appeal against sentence.

D.

Conclusion

[30]

For these reasons, I would dismiss both the
    conviction and sentence appeal.

Released: May 17, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Tulloch J.A.

I agree. David M. Paciocco J.A.


