





CITATION:
R. v. Bayat, 2011 ONCA 778



DATE:  20111213



DOCKET: C52990



COURT OF APPEAL FOR ONTARIO



Doherty, Rosenberg and Juriansz JJ.A.



BETWEEN:



Her Majesty The Queen



Appellant



and



Shakib Bayat



Respondent



Allison Dellandrea, for the appellant



Robert Sheppard, for the respondent



Heard: November 25, 2011



On appeal from the order of Justice Bruce G. Thomas of the Superior
          Court of Justice dated November 3, 2010, staying the proceedings on the basis
          of entrapment.



Rosenberg J.A.:



[1]

This Crown appeal concerns the use of techniques by the police to
    investigate crimes that originate in contact between an accused and children
    through the internet. Thomas J. found the respondent guilty of child luring
    contrary to s. 172.1 of the
Criminal Code
, but stayed the charge on the
    basis of entrapment. The Crown now appeals from that decision. For the
    following reasons, I would allow the appeal, quash the stay of proceedings and
    remit the matter to the trial judge for sentencing.

[2]

The trial judge gave lengthy and thorough reasons that clearly set out
    the facts and the path taken by the judge to the finding of entrapment.
    However, in my view, the trial judge failed to consider one element of entrapment,
    the necessity of showing that the police gave the accused an opportunity to
    commit the offence. The line between proper investigation and providing an
    opportunity to commit an offence can be a fine one. But, having regard to the
    controlling authorities, particularly the decision of this court in
R. v.
    Imoro,
2010 ONCA 122, 251 C.C.C. (3d) 131, in my view that line was not
    crossed in this case.

THE FACTS

[3]

Following a trial by judge alone, the trial judge found the respondent
    guilty of child luring. That finding is not in issue in this appeal. The facts
    giving rise to the entrapment issue are accurately set out in the reasons of
    the trial judge, which can be found at 2010 ONSC 5606. I have liberally
    borrowed from those reasons in summarizing the facts.

[4]

In September 2007, London police were contacted by the vice-principal of
    a high school. Detective Howe, from the cyber crime unit, became involved in
    the investigation. It came to his attention that a sixteen year old female
    student named B. had entered a sexual relationship with a twenty-two year old
    male from Brampton, whom she had met on the internet.

[5]

Police interviewed B. and two of her friends. According to B. and her
    friends, B. and the respondent had consensual sex. The respondent videotaped
    the sexual acts and showed the video to one of B.s friends, and perhaps
    others. It was clear that B. and her friends were unwilling to assist in a
    prosecution.

[6]

Detective Howe was able to obtain the respondents hotmail address for
    MSN Messenger. On November 8, 2007, he sent the respondent a message asking to
    be added as a "friend" to his account. Detective Howe chose to adopt
    an identity he had used before on the internet; that of a thirteen year old
    London girl named Natasha.

[7]

The following day Detective Howe found he had been accepted as a friend
    by the respondent, and that the respondent was online. The respondent initiated
    an exchange with Natasha by asking her who she was, and how she had obtained
    his address. The respondent asked Natasha to let him see her via webcam. 
    Natasha replied that her mom would not let her have a webcam, but that she had
    a picture of herself that she could send.  Detective Howe transmitted a picture
    that he used for undercover purposes to establish his identity to the respondent.
    The image transmitted was a colour photograph of a female member of the London
    Police Service, taken when she was approximately 13 years old. The image is of
    a young girl in a swimming pool. There is nothing sexual about the photograph.
    The child in the photograph is obviously young.

[8]

Once the respondent had received Natasha's picture, the following
    exchanges took place.  I have highlighted some of the important parts of the
    exchange:




natasha

did u see my pic





respondent

ya





natasha

wat u think





respondent

ur cute but too young





natasha

im 13 now but i was 12 in the pic





respondent

oh ok but still young lol





natasha

for wat lol





respondent

to talk to m
e





Natasha

oh how old r u




respondent

22




natasha

oh thats kewl but if y don wanna whatever





respondent

i dont care





natasha

k its kewl wit me




[9]

Natasha was then directed to a second MSN address for the respondent's
    friends. Between the two accounts the conversation continued:




respondent

do u like to hav fun





natasha

ya of corse lol





respondent

wat kinda fun





natasha

anything i guess is kewl





respondent

how about with a guy:P





natasha

wat u mean





respondent

u know getting naughty n having fun with a guy





natasha

oh lol sure thats kewl





respondent

lol ok u do that alot





natasha

ya a few time





respondent

wat have u done





natasha

everything





respondent

like





natasha

naughty stuff lol what u done





respondent

ru a virgin





natasha

i did it once





respondent

with who





natasha

my ex bf





respondent

how was it





natasha

it hurt a bit but it was fun





respondent

ya i know





natasha

what have u done





respondent

so wat hav u done other then that





natasha

u first lol





respondent

i've done everything





natasha

k wat u don





respondent

everything in sex lol





natasha

kewl lol what u like most





respondent

tight girls n sexy n cute ones like u





natasha

relly u like me?





respondent

like to get to know u





natasha

kewl me to





respondent

thats good





natasha

yuppers





respondent

hav u give a head





natasha

no i never done that have u had that done to u





respondent

ya





natasha

lol was it fun





respondent

yes very





natasha

lol guys like that





respondent

lol ya will u do it to me:P





natasha

ummmm k but i dont know wat u look like lol




[10]

Later in the conversation Natasha and the respondent arranged to meet
    when the respondent was going to be in London. On November 13, the respondent
    was arrested by London police at a payphone near the proposed meeting spot.

[11]

Detective Howe testified that he commenced the investigation of the
    respondent because he believed the respondent was possibly guilty of production
    and distribution of child pornography. Since the sexual activity with B. was
    consensual and B. was 16 years old the respondent did not commit any sexual
    offence.  However, the definition of child pornography in s. 163.1(1) of the
Criminal
    Code
can include images of persons under the age of 18 years.

REASONS OF THE TRIAL JUDGE

[12]

The trial judge referred to several leading decisions concerning
    entrapment including the decisions in
R. v. Mack
, [1988] 2 S.C.R. 903,
R.
    v. Barnes
, [1991] 1 S.C.R. 449 and
Imoro
. As he correctly held, the
    respondents case turned on the first branch of entrapment identified in
Mack
,
    namely, where the authorities provide a person with an opportunity to commit an
    offence without acting on: (i) a reasonable suspicion that this person is
    already engaged in criminal activity; or (ii) pursuant to a
bona fide
inquiry.
    The trial judge disbelieved Detective Howe. He held that the officer was not
    engaged in a
bona fide
investigation. The officer claimed to be engaged
    in a child pornography investigation however, his method of investigation was
    inconsistent with such a purpose.

[13]

The trial judge then turned to whether the officer was nevertheless
    acting on a reasonable suspicion that the respondent was already engaged in
    criminal activity. I have set out in full the part of his reasons at the core
    of the error alleged by the Crown:

The timing of the investigator's possession of the
    requisite suspicion is important (
R. v. Benedetti,
[1997] 7 W.W.R. 330
    (Alta. C.A.)).
As it was Detective Howe who instituted the first contact
    with Bayat, as "Natasha", I find it necessary that he had the
    reasonable suspicion at the time of his first message on November 8, 2007 and
    not at some later point in the investigation.
This is not like the
    investigations considered in
Imoro
and
Benedetti, supra
, where
    tips of drug trafficking lead officers to locations where it was alleged drugs
    were being regularly sold, and where ultimately drug charges were laid.
    [Emphasis added.]

[14]

In
Barnes
the court clarified that the police may only present an
    opportunity to commit a particular crime to a person who arouses a suspicion
    that he or she is already engaged in the particular criminal activity.  The
    trial judge concluded that since the officer in this case did not have a
    subjective belief that the respondent was engaged in child luring, the offence
    that he had set out to investigate, the requisite reasonable suspicion was
    absent. Entrapment was made out because the officer was not involved in a
bona
    fide
investigation and did not have a reasonable suspicion that the
    respondent was involved in a particular crime when he first communicated with
    the respondent. Accordingly, the trial judge entered a judicial stay of
    proceedings.

ANALYSIS

[15]

In
Mack
, Lamer J. explained the basis for entrapment in these
    terms at p. 956:

I take this statement [from
R. v. Amato,
[1982] 2 S.C.R. 418] to mean that
the police are entitled to provide
    opportunities for the commission of offences where they have reasonable
    suspicion to believe that the individuals in question are already engaged in
    criminal conduct
. The absence of a reasonable suspicion may establish a
    defence of entrapment for two reasons: firstly, it may indicate the police are
    engaged in random virtue-testing or, worse, are carrying on in that way for
    dubious motives unrelated to the investigation and repression of crimes and are
    as such "
mala fides
".  [Emphasis added.]

[16]

And later at p. 959:

To summarize then, the police must not, and it
    is entrapment to do so, offer people opportunities to commit crime unless they
    have a reasonable suspicion that such people are already engaged in criminal
    activity
or, unless such an offer is made in the course of a bona fide
    investigation. In addition, the mere existence of a prior record is not usually
    sufficient to ground a "reasonable suspicion". These situations will
    be rare, in my opinion. If the accused is not alleging this form of entrapment
    the central question in a particular case will be: have the police gone further
    than providing an opportunity and instead employed tactics designed to induce
    someone into the commission of an offence?  [Emphasis added.]

[17]

In
Imoro
,

at para. 13, this court interpreted
Mack
to mean that on the lack of reasonable suspicion branch of entrapment the court
    must make two findings: first, a finding that the police provided an
    opportunity to commit an offence; and second, a finding that the police did so
    without reasonable suspicion. In that case, the court found that the initial
    police contact with the accused did not amount to providing an opportunity to
    commit an offence. An opportunity was given later, but by that time the officer
    had the requisite reasonable suspicion. Accordingly, entrapment was not made
    out.

[18]

The appellant makes a similar argument here. In her very helpful
    submissions, Ms. Dellandrea argues that when the interchange with the
    respondent is examined, the officer never provided the respondent with an opportunity
    to commit an offence, as that concept is understood in the entrapment context.  Alternatively,
    at the very least such opportunity was not given until well into the
    communication at a time where the officer had a reasonable suspicion that the
    respondent was engaged in child luring by reason of the respondents own
    messages to Natasha.

[19]

I agree with the appellants submissions.  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. In my view, the trial judge
    erred in failing to consider whether the officers conduct in simply opening up
    a dialogue with the respondent constituted an opportunity to commit an offence.
    As is apparent from the passage in the trial judges reasons set out above at
    paragraph 13, the trial judge held that the reasonable suspicion had to exist
    from the moment the officer contacted the respondent. He failed to consider
    whether that initial contact was an offer of an opportunity to commit an
    offence. In my view, it was not. The initial contact was no more than a step in
    an investigation, the equivalent of a knock on a door.

[20]

Detective Howe, in the guise of Natasha, offered to be added as a
    friend to the respondents MSN account. This act could not be construed as an
    opportunity to commit the offence of child luring. After the initial contact
    was made, the respondent took the initiative in opening up communications with
    Natasha. The respondent asked to view Natasha. The photograph provided by the
    officer in response to this request was neutral. It could in not be construed
    as sexually provocative or as offering an opportunity to commit an offence. The
    respondent took the lead in engaging in ever more explicit sexual discussions
    even though by then he believed that Natasha was a child. The officer gave the
    respondent several opportunities to withdraw from the discussion. However, the
    respondent chose to carry on.

[21]

Counsel for the respondent argues that the officers conduct in
    targeting the respondent through his MSN account was materially different from
    the usual method used by the police of entering a chat room.  See for example,
R.
    v. Alicandro
, 2009 ONCA 133. While I appreciate that there is a difference,
    in my view, it is not a legally material distinction. In the chat room type of
    investigation, police officers initially make themselves available to chat with
    everyone in the chat room, and then may enter a dialogue with particular
    individual. In this case the police officer made himself available to chat with
    a particular individual from the outset. In both situations, if it is the
    accused who takes the lead in directing the conversation, the element of
    offering an opportunity to commit the offence of child luring is not made out.
    There is a difference between simply providing an opportunity to chat or talk,
    and providing an opportunity to commit the offence of child luring.

[22]

The respondent further submits that if this court were to find that the
    trial judge erred in failing to consider whether the officer gave the
    respondent an opportunity to commit an offence, we should remit the matter back
    to the trial judge. He submits that this is essentially a factual issue to be
    determined by the trier of fact. I do not agree. In a judge alone trial, where
    the trial judge has made all the necessary findings of fact to support a
    finding of guilt, or those facts are not in dispute, the appellate court may
    substitute a finding of guilt on a Crown appeal from acquittal:
R. v.
    Cassidy
, [1989] 2 S.C.R. 345 at 354-55. The same test should apply on a
    Crown appeal from a stay of proceedings.

[23]

In this appeal, the relevant facts are uncontested and undisputed. They
    are set out in the transcripts of the communications between the respondent and
    the officer and in the trial judges reasons. It only remains for this court to
    apply the legally correct test for entrapment to those undisputed facts. The
    trial judges adverse finding of credibility against the officer on whether he
    was engaged in a
bona fide
investigation, or had a reasonable suspicion,
    do not affect the preliminary question of whether the facts reveal an
    opportunity to commit an offence. I am satisfied that there was no opportunity
    to commit an offence as that requirement was interpreted by this court in
Imoro
.

DISPOSITION

[24]

Accordingly, I would allow the appeal, set aside the stay of proceedings
    and remit the case to the trial judge to impose sentence in accordance with s.
    686(4)(b)(ii) of the
Criminal Code.

Signed:           M. Rosenberg J.A.

I agree Doherty J.A.

I agree R. G. Juriansz
    J.A.

RELEASED:  DD December 13, 2011


