



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dare, 2021 ONCA 327

DATE: 20210517

DOCKET: C66356

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Temitope Dare

Appellant

Lance Beechener, for the appellant

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

Heard: January 12-13, 2021 by
    videoconference

On appeal from
    the convictions entered by Justice Laura A. Bird of the Superior Court of
    Justice on February 9, 2018, sitting with a jury, and the ruling on entrapment dated
    June 22, 2018.

Juriansz J.A.:

[1]

This appeal was argued together with two other
    defence appeals,
R. v. Jaffer
and
R. v. Haniffa
, and a Crown
    appeal,
R. v. Ramelson
. All 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 convictions on the
    ground that the trial judge erred in her instructions to the jury.

[4]

For the reasons that follow, I would dismiss the
    appeal from conviction and the appeal of the dismissal of the entrapment
    application.

A.

The FACTS IN THIS CASE

[5]

In this case, the ad the police placed on the escorts
    section of Backpage purported to have been placed by Kathy. Kathy described
    herself as a Tight Brand New girl who is sexy and young and has a YOUNG
    FRIEND. The ad included three photographs of a female police officer, whose
    face was not shown, posing as Kathy. In one of the photographs, she was wearing
    a t-shirt with the name of a local high school printed on it. The ad indicated
    Kathy was 18 years old, the minimum age allowed by Backpage.

[6]

On March 25, 2016, the appellant testified he was
    under the influence of alcohol after a party at his house and decided to look
    for an escort on Backpage. At 3:14 a.m. he responded to the ad posted by Kathy
    and began communicating with Detective Sergeant Hogan who was posing as Kathy. At
    3:26 a.m. the undercover officer asked, You cool with young?, to which the
    appellant replied Yes. Am also young. The undercover officer then wrote Ok
    cool. Im 15 but look bit older. Then, before the appellant replied, the
    officer sent another text saying, How old are you if you dont mind me
    asking? The appellant responded, Ok am 22.

[7]

The appellant continued the text chat discussing
    whether Kathys friend would be included, the sexual services, the price and where
    to meet. When the appellant had not arrived when he said he would, the
    undercover officer texted at 5:05 a.m., Thought u were playing games and
    trying to take advantage of me because Im 15. Didnt mean to be rude. The
    appellant responded, It fine no problem.

[8]

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), telecommunicating
    with a person he believed to be under the age of 16 contrary to s. 172.1(2)
    (child luring under 16), and communicating to obtain for consideration the
    sexual services of a person under 18 contrary to 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) these charges relate to
    the offences under ss. 172.1(1)(a) and 172.1(1)(b). Section 172.1(2) sets out
    the punishment for these offences.

[9]

The appellants defence at trial was that he
    believed he was communicating with a person who was over the age of 18. He
    testified that he did not notice the reference to Kathy being 15 in the 3:26 a.m.
    text and that in his next text he was responding only to the question about his
    age. He testified he was in a taxi on the way to the hotel when he received the
    5:05 a.m. text and so read only the last part of it, again missing Kathy saying
    she was 15.

[10]

The jury found the appellant guilty on all three
    counts. The trial judge stayed the convictions under ss. 172.1(1)(b) (child
    luring under 16) and 286.1(2) (communicating to obtain sexual services from a
    minor) pursuant to
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 trial judge dismissed the application and
    sentenced the appellant to 90 days imprisonment to be served intermittently.

B.

ARGUMENTS ON
    APPEAL

[12]

The appellant submits
    the trial judge made two errors:

1.

by erring in
    instructing the jury they could
convict the appellant if they determined he had read one of the text
    messages saying Kathy was 15; and

2.

by concluding Project Raphael was a bona
    fide inquiry and failing to find that the appellant was entrapped.

C.

ANALYSIS

(1)

Jury instruction

[13]

The appellant appeals his conviction submitting
    the trial judge erred in instructing the jury they could convict if they
    determined he had read one of the text messages saying Kathy was 15. He relies
    on the Supreme Courts decision,
R. v. Morrison
, 2019 SCC 15, [2019] 2
    S.C.R. 3, which was released after the appellant was convicted, to argue that the
    trial judges instructions were wrong in law.

[14]

In
Morrison
the Supreme Court declared s.
    172.1(3) of the
Criminal Code
to be of no force or effect. Section 172.1(3)
    created a presumption, absent evidence to the contrary, that an accused believed
    any representation made that the person with whom they communicated was
    underage. In
Morrison
, the Supreme Court ruled that presumption violated
    an accuseds right to be presumed innocent under s. 11(d) of the
Charter
    of Rights and Freedoms
. Moldaver J. writing for the majority said that the
    Crown could not meet its burden by proving an accused was negligent or reckless
    about the persons age. He stated that the only pathway to conviction was to
    prove beyond a reasonable doubt that the accused believed the other person was
    underage: at para. 96. Later in his reasons, he did allow that wilful
    blindness can stand in for belief as well: at para. 99.

[15]

The appellant submits the trial judge erred by
    linking the reasonable doubt standard to whether the appellant had read at
    least one of the text messages that indicated Kathy was 15 years old. He says
    this would have left the jurors with the impression that, if they found the
    appellant read the text messages, the essential element of belief had been
    proved. The reasoning would be legally incorrect because, as Pardu J.A. had
    said in the Court of Appeal decision in
Morrison
, 2017 ONCA 582, 136
    O.R. (3d) 545, at para. 60:

There is simply no
    expectation that representations made during Internet conversations about
    sexual matters will be accurate or that a participant will be honest about his
    or her personal attributes, including age. Indeed, the expectation is quite the
    opposite, as true personal identities are often concealed in the course of
    online communication about sexual matters.

This passage was quoted with approval
    by Moldaver J. in
Morrison
, at para. 58
.

[16]

Thus, the appellant submits, permitting the jury
    to find that he simply read the texts falls short of proving he believed the
    person with whom he was communicating was under the age of 16. A finding that
    he simply read the text messages would establish only recklessness, which
Morrison
makes clear is insufficient to ground a conviction: at para. 83.

[17]

I would not give effect to this ground of appeal.
    Upon considering the trial judges instructions as a whole in the context of
    the trial and the addresses of counsel I am satisfied the jury was not misled on
    the essential element of belief.

[18]

In her instructions on count 1 the trial judge
    correctly instructed the jury that the critical issue was whether the appellant
    believed Kathy was 15 years old. Then, in her instructions on count 2, the
    trial judge again told the jury that they must find that the appellant believed
    the person he was communicating with was under the age of 16. However, she
    added this comes down to the same question of whether the Crown has proven
    beyond a reasonable doubt that Mr. Dare read the two text messages that made
    reference to [K]athy being 15 years old. She added if you have a reasonable
    doubt about whether Mr. Dare believed that Detective Sergeant Hogan was under
    the age of 16 years, you must find him not guilty of this offence.

[19]

The trial judge told the jury that the
    instructions she had given earlier on the issue of Mr. Dares belief about the
    age of the person he was communicating with applied to count 3.

[20]

After the trial judge completed her jury charge,
    the Crown objected that the trial judge had told the jury that the Crown had to
    prove beyond a reasonable doubt that he read the two text messages, but it
    would be sufficient if he had read one or the other of them.

[21]

The trial judge called the jury back and
    provided the following clarifying instruction:

There is one clarification I wish to make,
    Members of the Jury.  [I]t applies to all three counts of the indictment, and
    its in relation to the Crown being required to prove beyond a reasonable doubt
    that Mr. Dare read the text messages, specifically in relation to [K]athy being
    15, I had said, read both of them. It should have read, read one or both of
    them.

So the Crown must prove beyond a reasonable
    doubt, in relation to all three counts, that Mr. Dare read one or both of the
    text messages where Detective Sergeant Hogan made reference to the age of 15.

[22]

The appellants defence at trial was that he had
    not paid close attention to the messages in the text chat and simply had not
    seen either of the two references to Kathys age. In his testimony in-chief, he
    was emphatic that if he had read those references he would not have continued
    the chat. Under cross-examination, he steadfastly denied that he had read the
    15-year-old references.

[23]

In her charge, the trial judge set out the
    defence position that the appellant had missed the references to Kathy being
    15, and if he had, he would have stopped texting with her because he had no
    interest in having sex with a child. After summarizing the references in the
    text chats and the appellants specific denials of reading each, the trial
    judge instructed the jury that if you have a reasonable doubt about whether
    Mr. Dare believed that Detective Sergeant Hogan was under the age of 18 years,
    you must find him not guilty of this offence.

[24]

Except for the impugned passages, the trial
    judge, throughout her charge, instructed the jury that they had to find the
    appellant believed the person with whom he was communicating was underage. Moreover,
    the Crowns closing address told the jurors clearly they had to be satisfied
    beyond a reasonable doubt that the appellant had both read at least one of the
    15-year-old references
and
believed Kathy to be 15 before the appellant
    could be found guilty.

[25]

At trial the defence drew no distinction between
    the appellant reading the 15-year-old references in the text chat and his
    believing that Kathy was underage. The defence conducted the trial on the basis
    that if the appellant had read the 15-year-old text messages he would have
    known that Kathy was 15 and discontinued the text chat. For that reason, it is
    understandable that defence counsel did not object to the passages that are now
    criticized on appeal.

[26]

Considering the trial judges instructions as a
    whole, and in the context of the defence position at trial, I am satisfied the
    jury understood that the critical question was whether the appellant believed
    the person with whom he was texting was underage.

[27]

I would reject this ground of appeal.

(2)

Entrapment

[28]

Appellants counsel
    adopted the submissions made on the issue of entrapment in
Haniffa
.
    Those submissions were considered in
Ramelson.
Comprehensive reasons in
Ramelson

included the analysis and rejection of the
    second ground of appeal advanced in this case. For the reasons set out in
Ramelson
,
    I would reject this appellants argument that he was entrapped.

D.

Conclusion

[29]

For these reasons, I would dismiss the appeal.

Released: May 17, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Tulloch J.A.

I agree. David M. Paciocco J.A.


