



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ramelson, 2021 ONCA 328

DATE: 20210517

DOCKET: C68767

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Corey Daniel Ramelson

Respondent

Katie Doherty, Tracy Kozlowski and Lisa
    Fineberg for the appellant

Richard Litkowski, for the respondent

Heard: January 12-13, 2021 by
    videoconference

On appeal from the
    stay imposed by Justice Chris de Sa of the Superior Court of Justice on October
    8, 2020, with reasons reported at 2020 ONSC 5030.

Juriansz J.A.:


[1]

This Crown appeal was argued together with three defence
    appeals:
R. v. Jaffer
,
R. v. Dare
, and
R. v. Haniffa
. 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.
    The escorts section of Backpage expressly advertised sexual services. The
    police ads indicated the age of the escort was 18, the minimum age Backpage
    allowed. However, the police intended to suggest a certain level of
    inexperience and youth by featuring words such as young, tight, shy, and brand
    new. The police included in the ads photos of female officers posing as
    escorts. Individuals would respond to the ads by text message and in the
    ensuing negotiation of sexual services, the police officer posing as the escort
    would tell them that she was younger than 16. 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 were
    entrapped by the police. In the three defence appeals, the appellants applications
    to stay the proceedings because of entrapment were dismissed and they have
    appealed.

[4]

In this Crown appeal, the trial judge, in reasons released
    November 28, 2019, first dismissed the respondents entrapment application. The
    respondent was still before the trial court in May 2020 when the Supreme Court
    of Canadas decision in
R. v. Ahmad
, 2020 SCC 11, 445 D.L.R. (4th) 1, was
    released. The trial judge invited the parties to make further entrapment
    submissions about the impact of the
Ahmad
decision. In a second
    decision, released October 8, 2020, the trial judge concluded the respondent
    had been entrapped and stayed the proceedings.

[5]

The three defence appellants and this respondent presented a
    united front on the entrapment issues. The respondent in this appeal expressly
    adopted the submissions made by counsel for Haniffa. The reasons in this appeal
    deal comprehensively with the united argument presented, and separate reasons in
    the other appeals are released at the same time.

[6]

Project Raphael is the first of this type of investigation
    carried out in Ontario. Police in British Columbia carried out a similar
    investigation by posting analogous ads on Craigslist. In
R. v. Chiang,
2012 BCCA 85, 286 C.C.C. (3d) 564, the court concluded Mr. Chiang had not been
    entrapped on a charge of communicating for the purpose of obtaining for
    consideration the sexual services of a person under the age of 18 years,
    contrary to s. 212(4) (now s. 286.1(2)) of the
Criminal Code
, R.S.C.
    1985, c. C-46.

[7]

For the reasons that follow, I would allow the Crowns appeal in
    this case, set aside the stay of proceedings, and remit the matter to the trial
    judge for sentencing.

[8]

At trial the Crown sought a s. 486.4(1)(a)(i) publication ban and
    the trial judge was obliged to make the order as provided by s. 486.4(2)(b). In
    this court the Crown took the position the order should not be maintained as
    all the witnesses who testified in the Crowns case were police witnesses and
    there is no public interest prohibiting disclosure of their identity. This
    court set aside the non-publication order, and the respondents name is not
    initialized in these reasons.

A.

BACKGROUND

[9]

The advertisement, in this case, was posted on Monday, March 27,
    2017 in the Toronto escorts section of Backpage. It purported to have been
    placed by Michelle, whose stated age was 18. Michelle described herself as a
    Tight Brand NEW girl who is sexy and YOUNG and who has a YOUNG FRIEND
    (emphasis in original). The advertisement included three photographs of a female
    police officer, whose face was not shown, posing as Michelle. In one of the
    photographs, she was wearing a t-shirt with the name of a local high school
    printed on it.

[10]

At around 4:00 p.m. on the same day, the respondent texted
    Michelle and began chatting with her. About 27 minutes into the chat, just
    after the respondent indicated he wanted to see both Michelle and her friend, Michelle
    texted back, Just so you know we under 18. Some guys freak out and I dont
    want problems. We are small and its obvious. The respondent replied a minute
    later, Im cool with it. Ill be gentle as long as youre sexy and willing. Two
    minutes later, Michelle texted We are both willing. Were 14 but will both be
    turning 15 this year. That cool? We are buddies and very flexable??. The
    respondent replied, Should be lots of fun. Later in the chat, in response to
    the respondents text Can you girls dress up for me, Michelle texted Im 14
    I got regular clothed and my bra and underwear. The chat continued intermittently
    for more than two hours and ended when the respondent arrived at the hotel and
    Michelle told him to come up to her room. The entire text chat is appended to
    these reasons.

[11]

On his arrival at the room, the respondent was arrested and
    charged with:

1) telecommunicating with a person he believed
    was under the age of 16 years for the purpose of facilitating the commission of
    an offence under s. 152 (invitation to sexual touching) contrary to s. 172.1(2)
    (child luring under 16);

2) communicating for the purpose of obtaining
    for consideration the sexual services of a person under the age of 18 years,
    contrary to s. 286.1(2) (
communicating to obtain sexual
    services from a minor)
; and

3) telecommunicating to make an arrangement with
    a person to commit an offence under s. 152 (invitation to sexual touching) contrary
    to s. 172.2 (2) (arrangement to commit sexual offences against a person under 16).

[12]

At his trial, the respondent testified that he believed Michelle
    was at least 18 and that she was engaged in role-play as somebody younger. He testified
    that if he had found, on his arrival, that Michelle was actually 14 years old,
    he would have been disgusted, would have complained to the front desk, and would
    have even called the police.

[13]

The trial judge found the respondent guilty on all three counts. The
    respondent applied for a stay of proceedings on the basis he had been
    entrapped. In the decision under appeal, the trial judge applied
Ahmad
and found that the respondent had been entrapped and entered a stay of
    proceedings.

[14]

Whether the trial judge interpreted and applied
Ahmad
correctly is the central issue in this appeal. In the
Jaffer
,
Haniffa
,
    and
Dare
appeals, the entrapment applications were decided before
Ahmad
was released. They rely on
Ahmad
in submitting their cases were wrongly
    decided. All the appeals turn on the proper understanding of the law of
    entrapment and its application to the simple facts in each of these appeals.

[15]

It is apt to begin with setting out the law of entrapment as I
    understand it.

B.

The Law of Entrapment

(1)

Pre-
Ahmad
articulation of the
    entrapment doctrine

[16]

In deciding the respondents first application, the trial judge
    applied the law of entrapment as articulated in the foundational cases of
R.
    v. Mack
, [1988] 2 S.C.R. 903, and
R. v. Barnes
, [1991] 1 S.C.R. 449.

[17]

Both decisions were authored by Lamer J. (Lamer C.J. when
Barnes
was written). In
Mack
, he explained that the courts sense of justice
    is offended by the spectacle of an accuseds being convicted of an offence
    which is the work of the state: at p. 942. In
Barnes
, at p. 459, he
    stated the following rationale for the defence of entrapment:

The defence of entrapment is based on the
    notion that limits should be imposed on the ability of the police to
    participate in the commission of an offence. As a general rule, it is expected
    in our society that the police will direct their attention towards uncovering
    criminal activity that occurs without their involvement.

[18]

Entrapment is not a true defence, as the accused has committed
    the crime and is properly found guilty. The remedy for entrapment is a stay of
    proceedings. Entrapment is a type of abuse of process. As Lamer J. explained in
Mack
, at p. 942:

The court is, in effect, saying it cannot
    condone or be seen to lend a stamp of approval to behaviour which transcends
    what our society perceives to be acceptable on the part of the state. The stay
    of the prosecution of the accused is the manifestation of the court's
    disapproval of the state's conduct.

[19]

Entrapment seeks to balance two competing interests: the
    individual has an interest in being left alone free from state intrusion, and
    the state has an interest in protecting society from crime.

[20]

The traditional statement of the circumstances in which the
    defence is available is set out in
Mack
, at pp. 964-965, and in
Barnes
,
    at p. 460. The defence is available 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 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.

[21]

There are two branches of the entrapment defence. The first,
    sub-paragraph (a) above, is opportunity-based entrapment and the second,
    sub-paragraph (b), is inducement-based entrapment. All four of the appeals
    before us raise opportunity-based entrapment claims. As only Jaffer raises
    inducement-based entrapment, I leave a discussion of inducement-based
    entrapment to the reasons in his appeal.

[22]

As can be seen, opportunity-based entrapment provides two
    exceptions to the general rule that police cannot offer people the opportunity
    to commit a criminal offence. The first exception arises when the police have
    reasonable suspicion that the suspect is already engaged in the criminal
    activity before extending the offer. The Crown does not take the position the
    police had reasonable suspicion that the individual in any of the four appeals
    was already engaged in the criminal activity. The application of the first
    exception is not an issue in the appeals.

[23]

The second exception arises when the police are acting pursuant
    to a bona fide inquiry when they extend offers to people to commit an offence.
Barnes
is the archetypical example of this exception. In
Barnes
the police
    offered people at the Granville Mall in Vancouver the opportunity to sell them
    drugs. Lamer C.J. explained, at p. 463, that:

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. When such a
    location is defined with sufficient precision, the police may present
any
person associated with the area with the opportunity to commit the particular
    offence. Such randomness is permissible within the scope of a bona fide
    inquiry. [Emphasis in original.]

[24]

Lamer C.J. summarized, at p. 463, that:

Random virtue-testing, conversely, only arises
    when a police officer presents a person with the opportunity to commit an
    offence
without
a reasonable suspicion that:

(a)
the person is
    already engaged in the particular criminal activity, or

(b)
the physical
    location with which the person is associated is a place where the particular
    criminal activity is likely occurring. [Emphasis in original.]

[25]

In
Barnes
the police had limited the investigation to a
    six-block area, which the court considered reasonable in the circumstances.
    There was no suggestion the police were not acting in good faith. The court
    concluded the police were acting in the course of a bona fide inquiry. Therefore,
    though the police did not have reasonable suspicion that Barnes, himself, was
    engaged in drug trafficking, they had not engaged in random virtue testing.

(2)

The
Ahmad
decision

(i)

The facts and result of
Ahmad

[26]

Ahmad
involved two separate appeals, one from Ahmad and
    another from Williams, from convictions for drug-related offences. In each
    case, the police had received tips that a named person associated with a phone
    number was dealing drugs. The police called each of the numbers, presented the
    person who answered the call with the opportunity to sell them drugs, arranged
    a meeting to buy the drugs, and arrested them when they turned up at the
    meeting. After Ahmad and Williams were convicted, they both claimed the
    proceedings against them should be stayed because they had been entrapped.

[27]

The Supreme Court by a majority of five-four concluded that Ahmad
    had not been entrapped but that Williams had been entrapped. Because the tips
    the police had acted upon were anonymous and unsubstantiated, the police did not
    have reasonable suspicion that the phone numbers and named persons associated
    with those numbers were trafficking in drugs. Hence, the police could not claim
    they were carrying out bona fide inquiries of the phone numbers. Absent a bona
    fide inquiry, the police had to have reasonable suspicion that the individuals
    to whom they were speaking were involved in trafficking before they could
    present them the opportunity to sell drugs.

[28]

When Ahmad answered the call from the police, he confirmed the
    name provided by the unsubstantiated tip and used language particular to the
    drug subculture by asking What do you need?. His use of this drug culture
    language corroborated the tip and gave the police reasonable suspicion he was
    involved in the drug trade. Once they had acquired reasonable suspicion, the
    police could offer him the opportunity to sell drugs. Therefore, Ahmad was not
    entrapped.

[29]

Williams, however, was entrapped. Before the police offered him
    the opportunity to sell drugs, Williams had said nothing in the conversation
    that gave the police a reasonable suspicion the phone number was being used to
    sell drugs.

(ii)

Entrapment applies in virtual spaces

[30]

The
Ahmad
decision is significant because the court
    confirmed that the doctrine of entrapment applies to police investigations
    carried out in virtual spaces.
Ahmad
is especially pertinent to these
    appeals because Project Raphael was an investigation of a virtual space.

[31]

As
Ahmad
was the first case involving virtual spaces, the
    court took full advantage of the opportunity to stress how virtual spaces
    differ from physical areas and what those differences mean for courts
    oversight of police investigations in virtual spaces.

[32]

The court begins by observing that a person reasonably expects
    privacy in most digital communications and that conversations over text
    message, social media messaging, or email, are not analogous to a public
    post: at para. 36. The court notes the increasing prominence of technology
    as a means by which individuals conduct their personal lives and emphasizes
    that police investigations of such virtual spaces raise unique concerns for
    the intrusion of the state into individuals private lives: at para. 36. The
    court expresses concern that the breadth of some virtual spaces such as social
    media websites enables the police, using technology, to remotely access a
    potentially large number of targets with ease.

[33]

The court states that state surveillance over virtual spaces is
    of an entirely different qualitative order than surveillance over a public
    space: at para. 37. The court continues on to note that technology and remote
    communication significantly increase the number of people to whom the police
    can provide opportunities, which heightens the risk that innocent people will
    be targeted: at para. 37. Obviously contemplating sting operations such as
    Project Raphael, the court observes online anonymity allows police to
    increasingly fabricate identities and pose as others to a degree that would
    not be possible in a public space like the Granville Mall: at para. 37. Police
    can pose as fabricated identities anytime and anywhere, since cell phones are
    a 24/7 gateway into a persons private life: at para. 37. The court cautions that
    individuals must be able to enjoy that privacy free from state intrusion
    subject only to the police meeting an objective and reviewable standard
    allowing them to intrude: at para. 37.

[34]

In
Ahmad
the court provides guidance as to how the law of
    entrapment should be applied to police investigations in virtual spaces. The
    court did not, however, change the law of entrapment. The majority in
Ahmad
makes that point repeatedly. They describe the law as set out in
Mack
and
Barnes
as settled doctrine: at para. 3. They say there is no
    reason to alter the carefully calibrated balance between the need to protect
    private interests and personal freedom from state overreach and the state's
    legitimate interest in prosecuting crime that was struck in
Mack
and
    affirmed in
Barnes
: at paras. 3, 22-23. They observe the entrapment
    framework has proved workable for decades in a variety of contexts and has
    stood the test of time, furnishing a principled, stable and generally
    applicable doctrine: at para. 23. They add that [n]o principled reason
    supports departing from it: at para. 23.

[35]

The majority specifically recites and adopts the traditional
    statement of entrapment from
Mack
and
Barnes
. Those decisions, as
    set out earlier in these reasons, state that the opportunity-based entrapment
    defence is established when the police provide a person with an opportunity to
    commit an offence without acting on a reasonable suspicion that the person is
    already engaged in the criminal activity or pursuant to a bona fide inquiry. It
    is not an issue in these four appeals whether the police had a reasonable
    suspicion that the individuals to whom they made offers were already engaged in
    the criminal activity. The Crown accepts the police did not have such reasonable
    suspicion. That leaves, as the central issue in these appeals, the question of whether
    the police were acting pursuant to a bona fide inquiry when they offered the
    individuals the opportunity to arrange the sexual services of an underage
    person.

[36]

In
Ahmad
the court elaborates on what is necessary to
    constitute a bona fide police inquiry in virtual spaces. As I will show,
Ahmad
makes apparent that judicial assessment of whether a police investigation is a
    bona fide inquiry is multi-faceted. A bona fide inquiry requires that the
    police have the genuine purpose of investigating and repressing crime, that the
    police have objectively verifiable reasonable suspicion that people are engaged
    in the criminal activity within the space, that the space being investigated is
    sufficiently precise and narrow, and finally, that consideration of an open-ended
    list of factors enables the court to conclude that random virtue testing was
    avoided.

(iii)

Reasonable suspicion

[37]

Reasonable suspicion that the criminal activity is occurring in
    the space being investigated is an absolute requirement. In
Barnes
,
Lamer C.J. said at p. 463:


Random virtue-testing, conversely, only arises
    when a police officer presents a person with the opportunity to commit an
    offence
without
a reasonable suspicion that:

(a)
the person is
    already engaged in the particular criminal activity, or

(b)
the physical
    location with which the person is associated is a place where the particular
    criminal activity is likely occurring. [Emphasis in original.]

[38]

In
Ahmad
, the court made this more explicit at para. 19:
    police may present an opportunity to commit a crime only upon forming
    reasonable suspicion that either: (1) a specific person is engaged in criminal
    activity; or (2) people are carrying out criminal activity at a specific
    location, sometimes referred to as a
bona fide
inquiry.

[39]

The court in
Ahmad
described at length the essential role
    of reasonable suspicion in a bona fide inquiry. The court pointed out that, 
The reasons in
Mack
make clear that a
bona fide
inquiry into a location is premised upon and tethered to reasonable suspicion:
    para. 20. At para. 27, the court said, The opportunity-based branch of the
Mack
test therefore establishes that police cannot subject
anyone
to random
    virtue testing

virtuous or non-virtuous, predisposed or non-predisposed

without reasonable suspicion
    (emphasis in original).

[40]

Reasonable suspicion must be supported by objective factors:
    para. 42. At para. 45, the court stated [r]easonable suspicion is, by
    definition, an
objective
standard that protects individuals interests
    and preserves the rule of law by ensuring courts can meaningfully review police
    conduct (emphasis in original). However, quoting
Mack
, the court added
    that reasonable suspicion is not unduly onerous: at para. 45. It is a lower
    standard than reasonable grounds, which allows police additional flexibility
    in enforcing the law and preventing crime: at para. 45. Reasonable suspicion requires
    only the possibility, rather than probability, of criminal activity: at para.
    46. But it is subject to rigorous, independent and exacting judicial
    scrutiny because it provides police officers with justification to engage in
    otherwise impermissible, intrusive conduct: at para. 46. Police suspicion must
    be focused, precise, reasonable, and based in objective facts that stand up to
    independent scrutiny: at para. 46. Highlighting judicial oversight over
    police conduct, the court said that [u]ltimately, the evidence said to satisfy
    reasonable suspicion must be carefully examined and the facts must indicate
    the possibility of
criminal
behaviour (emphasis in original): at paras.
    46-47.

[41]

At para. 48 of their reasons, the majority describes
    reasonable suspicion as individualized. This is the only place in the
    majoritys reasons that the word individualized appears. In the paragraph,
    the majority is providing their answer to the concern of Moldaver J. in his
    dissenting reasons. Moldaver J. expressed the view that subsequent to the
    courts decision in
R. v. Chehil
, 2013 SCC 49, [2013] 3 S.C.R. 220, reasonable
    suspicion had to be individualized and this resulted in 
dissonance
    between the entrapment framework set out in
Mack
and
Barnes
and
    the reasonable suspicion standard required by
Chehil
: at paras.
    48 and 138. In responding to this concern, the majority said reasonable
    suspicion is also
individualized,
in the sense that it picks an
    individual target  whether a person, an intersection or a phone number  out
    of a group of persons or places (emphasis in original): at para. 48. It is
    apparent that in the majoritys view reasonable suspicion can be sufficiently
    individualized when it focuses, as the court said it may in para. 20, on a
    place defined with sufficient precision. To the same effect, the court said in
    para. 20, 
An investigation is 
bona fide
 where the
    police have a reasonable suspicion over a location or area, as well as a
    genuine purpose of investigating and repressing crime.

[42]

While Moldaver J. would have revisited the courts decision in
Barnes
because of
Chehils
requirement of individualized suspicion, the
    majority affirmed the principles of
Barnes
saying, at para. 22:

This framework balances and reconciles
    important public interests. The rule of law, and the need to protect privacy interests
    and personal freedom from state overreach are balanced against the states
    legitimate interest in investigating and prosecuting crime by permitting
but
    also constraining
entrapment techniques. [Emphasis in original.]

(iv)

Precisely defined virtual space and narrow scope of investigation
    defined

[43]

In
Ahmad
the court could not make clearer that reasonable
    suspicion cannot attach to a place unless it is precisely and narrowly
    defined. In
Barnes
, Lamer C.J. had indicated that the size of the area
    itself may indicate that the investigation is not
bona fide
: at p. 462.
Ahmad
makes this more exacting. The
court stat
ed,
    [t]he offer of an opportunity to commit a crime must always be based upon a
    reasonable suspicion of particular criminal activity, whether by a person,
in
    a place defined with sufficient precision
, or a combination of both (emphasis
    added): at para. 19. In para. 35 the court warned that some virtual spaces may
    be too broad to support a sufficiently particularized reasonable suspicion.
    The issue of breadth of the virtual space did not arise in
Ahmad
because
    an individual phone number, the virtual space at issue in
Ahmad
, was
    sufficiently precise and narrow to qualify as a place for the purposes of the
    first branch of the entrapment doctrine: at para. 42.

[44]

The breadth of the virtual space is related to how the police
    have designed their investigation. I draw this from para. 41 of
Ahmad
.
    There the court said, 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.

[45]

Where reasonable suspicion relates to a wide area, the courts
    must consider whether the police could have focused their investigation on a
    narrower area.

[46]

Where the evidence establishes the police have narrowed their
    investigation as much as the evidence allows, it may be acceptable that
    reasonable suspicion relates to a wider area.

(v)

The factors

[47]

In determining whether the virtual space has been defined with
    sufficient precision to ground reasonable suspicion and to ensure random virtue
    testing is avoided, the court in
Ahmad
, at para. 41, suggested
    consideration of the following factors may be helpful:

1)

the seriousness of the crime in question;

2)

the time of day and the number of activities and persons who might
    be affected;

3)

whether racial profiling, stereotyping or reliance on
    vulnerabilities played a part in the selection of the location;

4)

the level of privacy expected in the area or space;

5)

the importance of the virtual space to freedom of expression;

6)

and the availability of other, less intrusive investigative
    techniques.

[48]

The court indicated that this was not a closed list and other
    factors could be relevant in other cases. The court must consider all the
    circumstances of a particular case to ensure that random virtue testing is
    avoided: at para. 41.

(vi)

Reasonable suspicion can be obtained in the course of the investigation

[49]

In
Ahmad
, the tips the police had received about the
    dial-a-dope operations were of unknown reliability. The court had no trouble
    concluding the police, at the time they placed the call to the telephone number
    in the tip, did not have reasonable suspicion that the person who answered the
    phone was involved in drug trafficking. Hence, without reasonable suspicion the
    police could not offer the person the chance to sell them drugs. However, as
    the court said, at para. 54, it is also possible for the police to form
    reasonable suspicion in the course of a conversation with the target, but prior
    to presenting the opportunity to commit a crime.

[50]

This explains the different results in the two appeals before the
    court in
Ahmad
. In the police conversation, Ahmad used drug culture jargon
    by responding what do you need?. This response gave rise to a reasonable
    suspicion he was engaged in drug trafficking and the police could then offer to
    buy drugs from him. He was not entrapped. On the other hand, Mr. Williams only
    responses before the police offered to buy drugs from him were yeah, who is
    this?, and Vinnie who?. These responses did not give rise to a reasonable
    suspicion he was engaged in drug trafficking. Therefore, he was entrapped.

[51]

This, then, is the legal framework for the determination of these
    appeals.

C.

decisions below

(1)

The trial judges first entrapment decision

[52]

The trial judges first entrapment decision is pertinent only for
    the background and the facts he found that were incorporated, or presumed to be
    incorporated, by his second decision.

[53]

In his first decision, the trial judge extensively reviewed the
    evidence, including the background of Project Raphael, the posted
    advertisement, and the text chat between Michelle and the respondent. Detective
    Constable Cook, who had the text chat with the respondent under the persona of
    Michelle, testified at trial and Detective Sergeant Truong (later promoted to Inspector,
    herein Truong), the architect of Project Raphael, testified at the entrapment
    hearing. The materials filed at the entrapment hearing included Truongs
    evidence at the respondents preliminary inquiry, Truongs evidence at the
    entrapment hearing in
R. v. Haniffa
, 2017 ONCJ 780, and the trial
    decision in
R. v. Dare
, (June 22, 2018), Newmarket,
CR-16-
    00002298 (S.C.)
.
[1]


[54]

The trial judge found that Backpage was well known for underage
    prostitution and that it was clear that individuals were actively purchasing
    sex from underage females through the website. He concluded that the police
    had a reasonable basis to believe that individuals were routinely involved in
    the purchase of sexual services from juvenile prostitutes on Backpage.com and
    that [t]hey engaged in an investigation to target this type of criminal activity.
    He observed that the evidence tendered by the Crown indicates that the demand
    for juvenile prostitutes was driven not only by those who were specifically
    looking for underage girls, but also by those who were open and willing to
    obtain sexual services from juvenile prostitutes. He stated that Project
    Raphael targeted both of these groups.

[55]

The trial judge concluded Project Raphael was a
bona fide
investigation, and in this context, the police were entitled to randomly offer
    individuals the opportunity to commit crimes of the sort known to be occurring
    on the website, Backpage.com (the opportunity to purchase sexual services from
    underage girls).

[56]

The trial judge also rejected the respondents argument that the
    police had improperly induced the respondent to commit the offence.

(2)

The trial judges second entrapment decision

[57]

In his second entrapment decision, the one under appeal, the
    trial judge reviewed the
Ahmad
decision in detail. He observed the
    Supreme Court had taken the opportunity to clarify the requisite standard to
    be applied in assessing a claim of entrapment under the first branch of the
    doctrine (opportunity-based entrapment). He quoted with emphasis, from para.
    42 of
Ahmad
:

The question will always be the same:
are
    there objective factors supporting a reasonable suspicion of drug trafficking
    by the individual answering the cell phone when police provide the opportunity
    to commit such a crime
? Those factors may relate in part to reasonable
    suspicion of the individual, or of the phone number itself, or to both.
    [Emphasis in original.]

[58]

The trial judge stated the principle that the standard of
    reasonable suspicion calls for an objective assessment of the information the
    police actually had
before
offering an individual an opportunity
    to commit a crime (emphasis in original). Drawing on passages from the reasons
    in
Ahmad
, he explained why the requirement of reasonable suspicion was
    important:

Providing individuals with the opportunity to
    commit offences without the foundation of a reasonable suspicion unacceptably
    increases the likelihood that people will commit crimes when they otherwise
    would not have. Random virtue testing unduly increases the risk that
    individuals who would not otherwise commit offences will become enticed into
    criminal activity.

[59]

The trial judge noted that while the Supreme Court stated virtual
    locations can qualify as places over which the police can have reasonable
    suspicion the court indicated a key requirement is that the virtual space in
    question must be defined with sufficient precision. The court said, [i]t is
    therefore important to carefully delineate and tightly circumscribe virtual
    locations in which police can provide the opportunity to commit a crime: at
    para. 39. The trial judge paraphrased the Supreme Courts explanation that, as
    he put it,

[V]irtual spaces raise unique concerns for the
    intrusion of the state into individuals private lives, because of the breadth
    of some virtual places (for example, social media websites), the ease of remote
    access to a potentially
large number of targets
that technology provides
    law enforcement, and the increasing prominence of technology as a means by
    which individuals conduct their personal lives. [Emphasis in original.]

[60]

The trial judge reiterated the findings of his previous decision
    that the police had a reasonable basis to believe that individuals were
    involved in the purchase of sexual services from juvenile prostitutes on Backpage.com,
    and that the police were justified in conducting an investigation into ongoing
    juvenile prostitution on Backpage.com given the information available to them.

[61]

Next, the trial judge expressed his concern about the large
    number of persons who were looking for an adult when they responded to the
    police ad. He observed Backpage was not a website or place dedicated to
    underage prostitution. He noted that the evidence indicated that in the escorts
    section of Backpage the overwhelming majority of ads and traffic did not
    relate to men seeking sexual services from underage girls. He said the evidence
    was that most men did not continue the text chat once they were told Michelle
    was underage.

[62]

The trial judge further observed, given the breadth of the
    potential poolthe undercover officer should have done more to satisfy himself
    that [the respondent] was looking for an underage girl before inviting [the
    respondent] to commit the offence. The trial judge observed that the
    undercover officer revealed that Michelle was 14 years old some 27 minutes into
    the conversation, after the respondent had already made arrangements about the
    sexual services to be provided and their cost. This bait and switch approach,
    he held, was problematic and raises clear entrapment concerns. He suggested
    the undercover officer could have disclosed Michelles age at the outset of the
    conversation.

[63]

The trial judge noted that the Supreme Court explained in
Ahmad
the conversation itself can be used to support a reasonable suspicion. He remarked
    that the respondent said nothing in his initial text messages to indicate he
    was looking for an underage girl. Then, evidently having in mind reasonable
    suspicion over the individual, the trial judge concluded, In the absence of
    reasonable suspicion, it was improper for the police to invite [the respondent]
    to commit the offence.

[64]

The trial judge recognized that the respondent was clearly
    willing to participate in the criminal activity under investigation but noted that
    the question here is not on whether the [respondent] was willing or perhaps
    predisposed to commit the offence as the focus is on the police conduct and
    the investigative approach.

[65]

The trial judge concluded the police had entrapped the respondent
    and ordered a stay of proceedings.

D.

ISSUES ON APPEAL

(1)

The Crowns position

[66]

The Crown submits that the trial judge misapplied the law of
    entrapment to the facts before him. The Crown says he proceeded on the
    misunderstanding that
Ahmad
changed the law to require the police to
    have reasonable suspicion of the individual in all cases. After finding the
    police had a reasonable basis to believe that individuals were involved in the
    purchase of sexual services from juvenile prostitutes on Backpage.com and that
    the decision to investigate Backpage.com for individuals seeking underage
    prostitutes was a legitimate police initiative, the trial judge erred by going
    on to consider whether the police had reasonable suspicion that the respondent was
    seeking an underage person before they could offer him the opportunity to
    commit the crime. The Crown submits the trial judge found Project Raphael was a
    bona fide police inquiry and that finding allowed the police to virtue test any
    person who responded to their ads posted on the escorts section of Backpage.

(2)

The respondents position

[67]

The respondent submits that the trial judge properly found that
    the Supreme Court in
Ahmad
provides clarification and guidance as to how
    to apply the entrapment framework to virtual spaces. He submits the trial judge
    stated the law correctly and made no reversible legal error in reassessing his
    reasons in light of
Ahmad
and concluding the police entrapped the respondent.

[68]

The respondent also adopts the submissions made by the appellant
    Haniffa. Haniffas primary argument is that the evidence was insufficient to give
    the police a reasonable suspicion that persons were going onto Backpage seeking
    to engage the sexual services of underage persons. In the alternative, he submits
    that if the police had a reasonable suspicion, it related only to the s. 286.1(2)
    offence (communicating to obtain sexual services from a minor), and so the
    police conduct constituted entrapment on the s. 172.1 (child luring) offence.
    Finally, he argues that the police virtue tested far too many innocent people
    to meet the
Ahmad
requirement of an investigation into a precisely and
    narrowly defined space.

(3)

Issues to be decided

[69]

The positions taken by the parties can be conveniently arranged
    and dealt with under the following four questions:

1)

Did the police have reasonable suspicion that the criminal activity
    under investigation was taking place on Backpage?

2)

Did the trial judge misapply
Ahmad
by holding that reasonable
    suspicion of the individual was required under the bona fide inquiry prong of
    the entrapment framework?

3)

Did the trial judge err by concluding the respondent was entrapped
    because the majority of persons tested by the police declined to engage an
    underage prostitute?

4)

Applying
Ahmad
, what is the proper analysis in this case to
    determine whether the space in which the police virtue tested persons randomly,
    was sufficiently precisely and narrowly defined to avoid a finding of
    entrapment?

E.

ANALYSIS

(1)

The police had reasonable suspicion that the
    criminal activity under investigation was taking place on the escort section of
    Backpage

[70]

I begin with an analysis of Haniffas argument, adopted by this
    respondent, that the police lacked reasonable suspicion that persons were
    engaged in the targeted criminal activity on Backpage.

(i)

The police had reasonable suspicion with respect to offences under s.
    286.1(2) (obtaining sexual services from a minor)

[71]

Counsel accepts, as the evidence clearly established, that
    juvenile persons were being advertised on Backpage and that some men were
    purchasing the sexual services of juvenile persons on Backpage. In the first
    entrapment decision, the trial judge found that in the York Region,
    [v]irtually all of the online investigations involving juveniles had been
    linked to Backpage.

[72]

While counsel accepts the evidence gave the police a reasonable
    suspicion that juveniles were being sold on Backpage, he contends that it does
    not logically follow that the police reasonably suspected that customers were seeking
    or attempting to purchase juvenile persons on Backpage. He submits the proper
    question is not whether the police had a reasonable suspicion the sexual
    services of juveniles were being sold on Backpage, but whether they had a
    reasonable suspicion that customers were going onto Backpage to buy sexual
    services from juveniles.

[73]

I accept the premise of the argument. The reasonable suspicion of
    the police had to relate to what the customers seeking sexual services had in mind.
    That is because, in cases where sexual services have been obtained for
    consideration, the accuseds knowledge or belief that the person from whom they
    have obtained those services is under 18 is an essential element of the offence
    under s. 286.1(2) (obtaining sexual services from a minor). It would not be enough
    if police had reasonable suspicion only that underage persons were being sold
    on Backpage to unwitting customers. The selling of sexual services, even by
    juveniles, is not a crime. In order to fall within the bona fide inquiry exception
    to the opportunity-based entrapment defence the police had to have a reasonable
    suspicion that s. 286.1(2) was being breached. That means the police had to
    have reasonable suspicion that customers were going onto Backpage and communicating
    to obtain sexual services for consideration from persons they knew or believed
    to be under the age of 18.

[74]

Truongs testimony, counsel submits, shows it would be futile for
    a customer to go onto Backpage with the intention of engaging an underage person.
    That is because, as officer Truong confirmed, underage persons would never be
    advertised indicating their actual ages or with their actual photographs.
    Truong testified that underage persons and those who arrange their bookings
    would not disclose their real age to unknown customers. Underage persons
    advertised on Backpage are sometimes given or have in their possession false
    identification showing an older age. Underage persons know revealing their real
    age would increase the probability that the police will get involved. Truong
    also agreed there was no coded language used on Backpage to signal that the person
    advertised was underage because the pimps who traffic underage persons realize
    the police would soon learn the codes. Customers could hope to learn the age of
    an escort they have engaged only upon meeting them. Truong said even that is
    unlikely, as underage persons asked for their age will typically lie and claim
    to be an adult. In fact, he said in the majority of sexual interactions between
    adults and a juvenile, the adults are never told the age of the juvenile.

[75]

Counsel submits that since police know all this, they could not
    reasonably suspect that persons who want to have sex with underage persons
    would go onto Backpage to seek them.

[76]

Counsel stresses that Truong could point to no basis, other than
    his own anecdotal experience, that persons go on Backpage to seek the sexual
    services of underage persons. He contends that in Project Raphael the police used
    their reasonable suspicion that underage persons were being sold on Backpage to
    randomly virtue test persons who went onto Backpage seeking to purchase the
    sexual services of an adult not an underage person.

[77]

The argument fails to appreciate Truongs ample and extensive experience.
    While Truong, in cross-examination, readily conceded he had no statistics and
    data to support his testimony in-chief that persons were going onto Backpage
    seeking to engage the services of underage escorts, he did not retreat from that
    testimony. I disagree with counsels characterization of Truongs testimony
    based on his experience as anecdotal. His experience forms the foundation for
    a specialized knowledge on the subject. His experience included dealing with
    prostitutes, pimps, and purchasers of sex on an almost daily basis for eight years.
    He conservatively estimated that he had interviewed hundreds of girls
    involved in the sex trade, both juveniles and adults. Truong acquired his
    knowledge not only from his dealings with juveniles but also from his dealings
    with adult escorts who were recruited into the sex trade when they were
    children. He testified that he had interacted, communicated, interviewed girls
    involved in the sex trade, juveniles and adults, in York Region, Toronto, in
    the GTA, in Québec, in the United States in Las Vegas, in Miami, in Los
    Angeles. Truong had attended conferences in the United States and Canada with
    respect to juvenile prostitution at which case studies involving underage
    children being advertised on Backpage were presented and he met with survivor based
    organizations.

[78]

Truong did introduce some data. In York Region in the years from
    2011 to 2016 the YPR identified 427 persons working in the sex industry, of
    whom 85 were underage. Where the police were able to lay charges of pimping or
    human trafficking based on victim cooperation, the victim was classified as a
    rescue. 49 of the 85 juveniles mentioned above were classified as rescues because
    they, by cooperating, enabled the police to lay charges. Truong testified that
    in one prior investigation aimed at identifying and rescuing underage persons,
    the police made contact with 31 escorts, nine of whom were underage, and he
    learned that the average age at which their sexual services were first sold was
    14.8 years.

[79]

Truong testified that there were men actively looking for
    prostituted children on backpage and were looking to purchase children. He
    said this information was acquired from speaking with child prostitutes,
    former child prostitutes, speaking with many NGOs and organizations, victims in
    court, during interviews.

[80]

I do not accept that Truongs testimony is undermined by
    counsels claim it would be futile for a person to go onto Backpage to engage an
    underage person. An individual user may have little prospect of engaging an
    underage person on Backpage upon visiting the site on a single occasion. But a determined
    individual using Backpage persistently could succeed in engaging underage persons.
    Truong said that customers who meet underage persons on Backpage may then engage
    them directly without going through Backpage. Keeping this testimony in mind, some
    Backpage users may engage persons who, even if they claimed to be 18, would be apparently
    underage, except to those wilfully blind.

[81]

As Truongs testimony was not undermined, the trial judge was
    entitled to rely on it to find as he did, on a higher standard than required, that
    the police had a reasonable basis to believe that individuals were involved in
    the purchase of sexual services from juvenile prostitutes on Backpage.com. Put
    in terms of the
Criminal Code
, the police had a reasonable suspicion
    that some users of Backpage were obtaining for consideration the sexual
    services of persons under the age of 18 contrary to s. 286.1(2).

(ii)

The s. 172.1(1)(b) (child luring under 16) offence is rationally
    connected and proportionate to the s. 286.1(2) (obtaining sexual services from
    a minor) offence

[82]

Counsel advances an alternative argument. Even if the police had
    a sufficient basis to provide an opportunity to commit the s. 286.1(2) offence,
    the police lacked reasonable suspicion to provide a person who responded to the
    ad the opportunity to commit the more serious offence of luring someone under
    the age of 16 under s. 172.1(1)(b). Given that the ads stated the escort was 18
    years of age, and given that underage persons on Backpage were unlikely to
    reveal their true age to a customer, the police could not reasonably suspect users
    of Backpage were telecommunicating to facilitate a sex crime with persons they
    believed were under 16. An essential element of the s.172.1(1)(b) offence is
    that the accused know or believe
at the time of the communication
that
    the person with whom they are communicating is under the age of 16:
R. v.
    Legare,
2009 SCC 56, [2009] 3 S.C.R. 551.

[83]

I accept the police lacked reasonable suspicion that the customers
    responding to ads on Backpage were committing or intending to commit the child
    luring offence under s. 172.1(1)(b).

[84]

In the next step of his argument, counsel contends the doctrine
    of entrapment requires that the reasonable suspicion relate to the same
    criminal conduct under investigation and the police can only present persons in
    the space with the opportunity to commit that particular offence. It follows,
    he submits, that since the police did not have reasonable suspicion persons
    were committing the child luring offence under s. 172.1(1)(b), they could not offer
    customers the opportunity to commit that offence. The police offered customers
    the opportunity to commit the child luring offence by disclosing she was
    under 16 and giving the customer the opportunity to continue the conversation.

[85]

Lamer J. in
Mack
made clear that the police can provide a
    person with the opportunity to commit a different offence that is rationally
    connected and proportional to the offence for which there is reasonable
    suspicion. At p. 958 of
Mack
, Lamer J. explained:

Obviously, there must be some
rational connection and
    proportionality
between the crime for which police have this reasonable
    suspicion and the crime for which the police provide the accused with the
    opportunity to commit. For example, if an individual is suspected of being
    involved in the drug trade, this fact alone will not justify the police
    providing the person with an opportunity to commit
a totally unrelated
    offence
. In addition, the sole fact that a person is suspected of being
    frequently in possession of marijuana does not alone justify the police
    providing him or her with the opportunity to commit a
much more serious
    offence
, such as importing narcotics, although other facts may justify
    their doing so. [Emphasis added.]

[86]

In the context of Project Raphael, the child luring offence under
    s. 172.1(1) is rationally connected to the investigation of the commodification
    of sex offence under s. 286.1(2). In offering the opportunity to commit the s.
    286.1(2) offence for which the police did have reasonable suspicion, they could
    not avoid offering the opportunity to commit an offence under s. 172.1. That is
    because in this investigation the offer to commit the s. 286.1(2) offence was
    necessarily conveyed using telecommunication. Once the police presented the
    offer to commit the s. 286.1(2) offence, the customer, by any response other
    than terminating the chat, would commit an offence under s. 172.1(1).

[87]

I do not attach much significance to the fact that in each of
    these cases the police disclosed the girl in question was under 16, with the
    result that the customers, by continuing to negotiate to obtain sexual
    services, committed the offence under s. 172.1(1(b)) (child luring under 16)
    rather than s.172.1(1)(a) (child luring under 18). As noted above, the police
    had an evidentiary basis to believe the average age at which underage persons
    first had their sexual services sold was 14.8 years. I regard the s.
    172.1(1)(b) (child luring under 16) offence to be rationally connected and not
    disproportionate to the s. 286.1(2) (obtaining sexual services from a minor) offence.

[88]

Furthermore, the s. 172.1(1)(b) offence and the s. 286.1(2) offence
    as charged share essential elements. As no sexual services were actually
    obtained in these appeals, the offence charged under s. 286.1(2) related to
    communicating for the purpose of obtaining sexual services from a person under
    18. Both offences require communication for the purpose of facilitating sexual
    contact with a person who is underage.

[89]

The s. 172.1(1)(b) offence is a more serious offence that is subject
    to a longer period of incarceration. However, in my view, the child luring
    under 16 offence is not a much more serious and totally unrelated offence
    to the commodification offence.

[90]

I would not give effect to the argument that the police did not
    have reasonable suspicion of the criminal conduct under investigation. The
    remaining question is whether the virtual space under investigation was defined
    with sufficient precision to ground the reasonable suspicion that the police
    had. I consider that question later in these reasons after rejecting the
    Crowns reading of the trial judges decision and identifying the trial judges
    errors.

(2)

The trial judge did not hold that the police
    required reasonable suspicion about the respondent even though they were acting
    pursuant to a bona fide inquiry

[91]

As the Crown reads the trial judges decision, the trial judge found the
    police investigation of Backpage was a bona fide inquiry. Then, because he
    misinterpreted
Ahmad
to require that the police have individualized
    reasonable suspicion in all cases, he found the respondent was entrapped because
    the police did not have reasonable suspicion that the respondent was seeking to
    engage an underage person.

[92]

I read the trial judges decision differently. The trial judge did
    find, on a higher standard than necessary, that the police had a reasonable
    basis to believe that individuals were involved in the purchase of sexual
    services from juvenile prostitutes on Backpage.com. He did not, however, go on
    to conclude the police investigation was a bona fide inquiry. Instead, he
    turned to consider the number of persons affected by the police investigation. He
    found that within the Escort section, the overwhelming majority of ads and
    traffic did not relate to men seeking sexual services from underage girls and
    that most males contacting the ad were looking for a female who was
not
underage (emphasis in original). I understand the trial judge to have concluded
    the scope of the virtual space being investigated was too broad to allow the
    investigation to qualify as a bona fide inquiry. This reading of his decision
    is supported by his colloquy with Crown counsel during argument.

[93]

Since he did not accept that Project Raphael was a bona fide inquiry,
    the trial judge proceeded with the analysis on the basis that the police required
    reasonable suspicion about the respondent before they could offer him the opportunity
    to engage an underage person. That is why he turned to consider the content of
    the text chat between the respondent and the undercover officer. He found that the
    respondent had said nothing to suggest he was looking for an underage person before
    the police had invited him to commit the offence. Consequently, he found the police
    had entrapped the respondent.

(3)

The trial judge erred by unduly focusing on the
    number of persons affected by the investigation and failing to consider other relevant
    factors

[94]

It bears repeating that in
Ahmad
the court recognized that
    virtual spaces raise unique concerns for the intrusion of the state into
    individuals private lives because of the breadth of some virtual places, that
    state surveillance over virtual spaces is of an entirely different qualitative
    order than surveillance over a public space, and that online anonymity allows
    police to increasingly fabricate identities and pose as others to a degree
    that would not be possible in a public space like the Granville Mall: at
    paras. 36-37. These risks make it important to carefully delineate and tightly
    circumscribe virtual locations in which police can provide the opportunity to
    commit a crime: at para. 39.

[95]

The trial judge rightly understood that
Ahmad
requires
    trial courts, in entrapment cases involving virtual spaces, to exercise
    heightened vigilance in striking the balance between individuals privacy in
    virtual spaces secure from state intrusion and societys general interest in
    the repression of harmful criminal activity. It was proper and necessary for the
    trial judge to consider the number of innocent people in the virtual space
    being investigated who would have their virtue tested by the police. In
Ahmad,
both the majority and the minority indicated the number of people potentially
    affected should be expressly considered: at paras. 41 and 161.

[96]

The trial judges error was in failing to consider other relevant
    factors. The number of people affected is but one of the factors the court
    suggests, at para. 41, would be helpful in ensuring random virtue testing is avoided.
    As noted, the court indicated that list was not closed. A court must consider
    all the relevant circumstances in each case.

[97]

In this case, the number and nature of activities affected, the
    nature and level of the privacy interest affected, and the importance of the
    virtual space to freedom of expression are important factors that the trial judge
    erred by not considering.

[98]

Below I discuss all the factors of this case I consider important
    in determining whether unacceptable random virtue testing was avoided. I
    conclude that the respondent was not entrapped.

(4)

The proper and complete analysis leads to the conclusion
    that the respondent was not entrapped


[99]

The starting point of the analysis is the trial judges finding
    that the police had a reasonable basis to believe that individuals were
    involved in the purchase of sexual services from underage persons on Backpage
    and the investigation of Backpage was a legitimate police initiative. The next
    step is to consider whether the virtual space being investigated was defined
    with sufficient precision to ground that reasonable suspicion and whether the
    police had narrowed the scope of their investigation so that the purview of
    their inquiry was no broader than the evidence allowed.

(i)

The seriousness of the target criminal activity

[100]

The police investigation, Project Raphael, was aimed at reducing
    the demand for sexual services from juveniles in the York Region. The trial
    judge noted that attempting to purchase sexual services from someone underage
    is a serious crime. Quoting from
R. v. Mills
, 2019 SCC 22, [2019] S.C.R.
    320, at para. 23, he recognized that children are especially vulnerable to
    sexual crimes, that the internet allows for greater opportunities to sexually
    exploit children, and that enhancing protection to children from becoming
    victims of sexual offences is vital in a free and democratic society.

[101]

Truong testified that the juveniles being sold on Backpage were a
    very vulnerable population in the community. Truong stated that a lot of the
    juveniles come from broken homes and are susceptible to recruitment,
    manipulation, and exploitation. They were being assaulted, exploited, and
    threatened, and both pimps and customers were committing crimes against them. Truong
    had never come across a juvenile selling sexual services who was not being
    exploited. Truong explained that the children had nowhere to go. Even the older
    ones, i.e. those over the age of 16, were extremely vulnerable. Finding safe
    accommodation for rescued juveniles over the age of 16 was made difficult because
    they could not be placed with child and family services agencies.

[102]

Obtaining the sexual services of a juvenile for consideration is
    an extremely grave crime. Parliaments view of its gravity is evident from the punishment
    it has enacted: a person found guilty of an offence under s. 286.1(2) (obtaining
    sexual services from a minor) is liable to imprisonment for up to 10 years.

(ii)

Child prostitution is difficult to investigate, and less intrusive
    investigative techniques were not available

[103]

I am not persuaded by counsel for Haniffa that the difficulty of
    investigating consensual crimes, such as the one in this case, should be
    considered in assessing only inducement-based entrapment. He points out the
    factor was discussed in
Mack
in the context of inducement. That is understandable
    because
Mack
involved a case of inducement.
Mack
s description of
    the factor, at p. 966  the availability of other techniques for the police detection
    of its commission  is simply a different articulation of the factor described
    in
Ahmad
, at para. 41, as the availability of other, less intrusive
    investigative techniques. The
Ahmad
factors are discussed in the
    context of the first branch of entrapment. Even before
Ahmad
it was
    recognized the factor is relevant to both branches of entrapment. In
Chiang
the British Columbia Court of Appeal referred to
Mack
to conclude that
    ordinary methods of detection might not work when investigating consensual
    crimes under the first branch: at paras. 19-20.

[104]

In his second decision, the trial judge simply stated that the
    police must be given considerable latitude in investigating criminal activity,
    especially where the crimes are serious and difficult to investigate. In his
    first decision, he had reviewed the evidence fulsomely. He said the challenge
    with investigating juveniles selling sexual services was that the activity was taking
    place inside hotel rooms or other private spaces. The juveniles did not report
    offences to the police, and even when identified, many underage persons did not
    cooperate with the police. Truong testified that juveniles fear repercussions
    if they cooperate with the police, or do not believe the police can help because
    of prior bad experiences with police. Truong testified that police attempts to
    rescue juveniles by focusing on the pimps was not doing anything to stop the
    demand for child sex. The police realized that to reduce the demand they had
    to focus on the men who were driving the industry. This led to the creation of
    Project Raphael.

[105]

The availability of less intrusive investigative techniques than
    those used in Project Raphael should be weighed heavily in the analysis.

[106]

In his testimony, Truong described an alternative technique for
    dealing with juveniles being sold on Backpage. He called the technique a vice
    probe. In a vice probe the police would peruse the ads on the escorts section
    of Backpage, attempt to identify those advertising underage persons, arrange to
    meet with them by posing as purchasers, and then attempt to ascertain their age
    upon meeting them. As recounted earlier, underage persons tended to not
    cooperate with the police, but, nevertheless, the technique did enjoy some
    success.

[107]

Truong included on his resume the number of underage persons involved
    in prostitution the YRP identified in each year from 2011 through 2016. In
    those years, a total of 85 underage persons were identified of whom 49 were
    classified as rescues. A person was classified as a rescue if they
    cooperated with the police such that charges could be laid. Police worked with
    other social agencies to find suitable safe situations for these underage
    persons.

[108]

Truong testified about a specific vice probe called Home for
    Christmas that the YRP ran in December 2013. The police reviewed hundreds of
    ads on Backpage and arranged to meet with 31 escorts. Of these 31, the police
    were able to determine that 9 were underage.

[109]

The vice probe, unlike Project Raphael, focuses on actual young
    people being sold on Backpage. Finding juveniles being sold and ensuring they
    are placed in safe situations is a positive feature of the vice probe
    technique. However, Truong explained that the police, in consultation with
    other social agencies, concluded vice probes did nothing to reduce the demand
    for sexual services from juveniles in the region. That is why Project Raphael
    was created to target the buyer side of the activity.

[110]

Despite the advantageous aspects of the vice probe, in the
    entrapment analysis the vice probe cannot be considered a less intrusive
    investigative technique to Project Raphael. That is because it is concerned
    with different criminal conduct. Project Raphael investigated persons who were obtaining
    for consideration the sexual services of underage persons contrary to s.
    286.1(2) of the
Criminal Code
. My impression is that the primary purpose
    of the vice probe technique was to rescue juveniles being sold on Backpage. The
    vice probe could investigate the offence of procuring an underage person to
    provide sexual services contrary to s. 286.3(2) of the
Criminal Code
. To
    do so successfully the vice probe would require the cooperation of the underage
    persons who have been identified.

[111]

I conclude that the vice probe is not an alternative investigative
    technique to Project Raphael. Rather, it is a technique that does not
    investigate the same offences. It has a different purpose altogether.

[112]

The trial judge suggested several things the police might have
    done differently. They all amount to the police using the text chat itself to
    support obtaining reasonable suspicion the caller was seeking an underage
    prostitute before extending the offer. This is understandable since the trial
    judge concluded there was no bona fide inquiry. Such suggestions are not
    relevant if the police are conducting a bona fide inquiry. The techniques by
    which the police might be able to obtain reasonable suspicion over a specific
    caller are best left to be considered, if necessary, after the determination of
    whether the investigation is a bona fide one.

[113]

This factor is deserving of weight. In
Ahmad
, at para. 35,
    the court observes that technology aids in the commission of crime and so in
    order to investigate and detect those crimes, police must also make use of
    technology. In
Mack
the Supreme Court had said that the state must be
    given substantial leeway when investigating drug trafficking because the
    traditional devices of police investigation are not effective: at p. 978. Investigating
    trafficking requires the police or their agents to get involved and gain the
    trust and confidence of the people trafficking or supplying the drugs:
Mack
,
    at p. 978. The Supreme Court further noted that trafficking is a crime of
    enormous social consequence which causes a great deal of harm in society
    generally: at p. 978.

(iii)

The definition of the virtual space and the scope of the police
    investigation

[114]

I find it convenient to discuss the definition of the virtual
    space and the scope of the police investigation together. Both play a role in
    determining whether the reasonable suspicion is sufficiently grounded to ensure
    random virtue testing is avoided.

[115]

In
Ahmad
, at para. 41, the majority stated that [r]eviewing
    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. This means that though the police have
    reasonable suspicion of criminal activity in an area, they must narrow the
    scope of the investigation as much as the evidence allows.

[116]

Lamer C.J. scrutinized the evidence this way in
Barnes
and
    considered whether the police could have restricted their investigation to a
    smaller area despite their reasonable suspicion of drug trafficking at the
    Granville Mall. He concluded, at p. 461, they could not do so and so the police
    could extend offers to people throughout the mall:

The police department in this case focused its
    investigation on an area of Vancouver, a section of Granville Street covering
    approximately six city blocks, where it was reasonably suspected that
    drug-related crimes were occurring. In my opinion, they would not have been
    able to deal with the problem effectively had they restricted the investigation
    to a smaller area. Although there were particular areas within the Granville
    Mall where drug trafficking was especially serious, it is true that trafficking
    occurred at locations scattered generally throughout the Mall. It is also true
    that traffickers did not operate in a single place. It would be unrealistic for
    the police to focus their investigation on one specific part of the Mall given
    the tendency of traffickers to modify their techniques in response to police
    investigations.

[117]

In this appeal, the police had reasonable suspicion persons were
    going on the escort section of Backpage to seek the sexual services of underage
    persons. The escort section of Backpage is the virtual space to which
    reasonable suspicion attaches. The escort section of Backpage is a precisely
    defined virtual space. Whether the police have acted within or outside that
    virtual space can be determined easily and definitely.

[118]

The trial judge quite rightly pointed out that the overwhelming
    majority of ads and traffic on the escort section did not relate to men
    seeking sexual services from underage girls. That, however, is not the end of
    the matter. The next step is to 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.

[119]

The police narrowed the scope of the investigation to only the
    users who responded to their ads, which offered escorts sexual services in the
    York Region, and which emphasized the escorts youthfulness by stating their
    age to be 18 and describing them in terms that the police intended to hint at
    the fact that the purchaser could be purchasing a young girl or child. The
    British Columbia Court of Appeal expressed the view that such techniques
    narrowed the scope of the investigation: 
The reach of the investigation was carefully limited through the nature
    of the investigative tool employed, specifically an ad on Craigslist that spoke
    of young bodies:
Chiang
,
at para. 21
.

[120]

That the overwhelming majority of ads and traffic on the escorts
    section of Backpage did not relate to the sexual services of underage persons
    must be considered together with the narrowed scope of the investigation. The
    police did not offer the services of underage persons to users of the escorts
    section of Backpage in general. The people who clicked on the police ads to see
    the ads full content and then responded to the ads were the only persons who
    could be offered an opportunity to engage the sexual services of someone
    underage.

[121]

The trial judge did suggest, if I understand correctly, that the
    police investigation should have been conducted to engage in a prolonged text
    chat with a smaller pool of persons. He said, 
Given the
    breadth of the potential pool, in my view, the undercover officer should have
    done more to satisfy himself that the Applicant was looking for an underage
    girl before inviting the Applicant to commit the offence.

He criticized the undercover officer in this case for not
    revealing that Michelle was 14 years old until 27 minutes into the text chat.
    He described the late disclosure as a bait and switch approach that was
    problematic and raised clear entrapment concerns. He said the officers
    initial texts encouraged or enticed the respondent to commit the offence
    before having any suspicion he was seeking someone underage. These comments are
    surprising as, in his first decision, he unambiguously rejected the respondents
    claim he had been induced and did not revisit that conclusion.

[122]

The trial judges finding of delayed disclosure must be put into
    perspective. Truong testified that when persons responded to the ads seeking to
    purchase sexual services, the undercover officer would bring up the issue of
    age at the earliest possible stage of the conversation. The disclosure, in this
    case, was made in the 8
th
text from the officer, the first 7 were
    extremely brief.

[123]

In any event, the question the trial judge raised is whether the
    scope of the investigation should have somehow been narrowed to exclude those who
    were not specifically looking for sex with an underage person but who would
    take up the opportunity when it was offered.

[124]

In my view, customers who are merely indifferent that the 18-year-old
    they seek to engage may actually be an underage person are legitimate targets
    of the police investigation. Their indifference exhibited in responding to
    police offers would manifest itself equally in real life encounters. These
    indifferent persons add to the social evil of child prostitution by contributing
    to the market for it. I agree with the trial judges finding in his first
    entrapment decision that the demand for juvenile prostitutes was driven not
    only by those who were specifically looking for underage girls, but also by
    those who were open and willing to obtain sexual services from juvenile
    prostitutes. Truong had testified that when designing Project Raphael persons who
    would take the opportunity, though not seeking one, to engage in sex with a
    minor were seen as part of the target group. In my view, defining the scope of
    the investigation to include such persons was justifiable.

[125]

Counsel for Haniffa also contended the police could have narrowed
    the scope of the investigation by seeking the cooperation of Backpage to allow the
    police to post an ad with a lower age. I dont regard the suggestion as
    feasible. Further, I have explained why the investigation did not have to be
    narrowed in that way.

[126]

I am satisfied the police narrowed the scope of the investigation
    as much as the evidence warranted.

(iv)

The activities affected by the investigation

[127]

The trial judge did not consider the activities that would be
    affected by the investigation. In
Barnes
, for example, the persons
    potentially solicited by the police were going about their lawful business, perhaps
    on their way to work, shopping, dining out, or seeing a movie.

[128]

In this case, all the persons who possibly could be tested by the
    police were persons seeking to engage prostitutes. The persons who responded to
    the police ads, and other similar ads, were engaged in communicating to obtain
    for consideration the sexual services of a person, which is a criminal offence
    under s. 286.1. The communication to obtain sexual services for consideration
    is the single activity affected by the investigation.

[129]

Society has little interest in shielding the criminal activity of
    engaging a prostitute from state intrusion.

(v)

The nature and level of privacy expected in the virtual space

[130]

The nature and level of privacy expected are other relevant
    factors that the trial judge did not consider.

[131]

The relevant interest, in this case, is the privacy that the customers
    responding to the ad were entitled to expect during the text chat
before
the undercover officer disclosed that she was underage. After that disclosure,
    customers who continued the chat could not reasonably expect privacy online
    with juveniles they did not know:
Mills
, at para. 23.

[132]

As
Ahmad
noted, at para. 36, people reasonably expect
    privacy in their text messages. I reiterate once again that the court said that
    virtual spaces raise unique concerns for the intrusion of the state into
    individuals private lives and that individuals should be able to enjoy their
    privacy free from state intrusion, except where that intrusion is objectively
    justified: at para. 36.

[133]

I expect that customers would want to keep their text messages with
    a prospective sex worker confidential. In such text messages customers would
    disclose their sexual predilections, the sexual activities in which they wanted
    to engage, and how much they were willing to pay for them.

[134]

The customers used their phone to engage in the text chats. In
Ahmad
the court had commented, at para. 36, that:

A phone number provides access to an intensely
    private virtual space. We cultivate personal, work and family relationships
    through our phones; they are a portal of immediate access reserved for the
    select few closest to us. We carefully guard access to that space by choosing
    to whom we disclose our phone number and with whom we converse.

[135]

The police carrying out Project Raphael intruded upon an intensely
    personal privacy interest.

(vi)

The importance of the virtual space to freedom of expression

[136]

The virtual space the police intruded upon was comprised of advertisements
    for sexual services and text messages from would-be customers. The expression
    in this space was devoted to specifying sexual services and negotiating their cost
    and where they would be performed. Such expression does not fall into the
    traditional categories of expression valued in a democratic state, such as
    political speech, social commentary, or religious opinion.

[137]

While the customers could claim a privacy interest in their text
    messages, it is relevant to this factor that the expression by the customers in
    the virtual space, i.e. communicating to obtain sexual services for
    consideration, would constitute a criminal offence under s. 286.1.

[138]

The escorts section of Backpage had little importance to freedom
    of expression.

(vii)

Racial profiling, stereotyping or reliance on vulnerabilities

[139]

There was no latitude in Project Raphael for undercover officers
    to engage in racial profiling or stereotyping, or to rely on vulnerabilities
    not related to the offence.

(viii)

The number of persons affected

[140]

The number of innocent people who would be affected by a police
    investigation is a significant factor in the analysis. This factor, although
    important, must be considered in the context of the other factors discussed
    above, which provide the necessary context for the proper assessment of its weight.

[141]

The trial judge did not make a finding quantifying the relative
    number of innocent people affected. The police did not keep a record of the
    number of persons who responded to the ads who discontinued the text chat upon
    learning the escort was underage. Counsel for Haniffa, whose submissions the
    respondent adopted, puts forward a method of arriving at an estimate of the
    relative number. From material disclosed by the Crown under a production order,
    he advises that during an eight-day period during which Project Raphael ran
    during 2016, 50 customers were arrested. While the total number of persons who
    responded to the ad was not recorded, it is known there were 17,000 lines of
    text communication from all callers during that eight-day period. Counsel
    estimates there were 30 to 40 lines of text per call on average. Using the
    figure 40 he attributes a total of 2,000 lines of text to the 50 persons
    arrested. That leaves the remaining 15,000 lines of text to be attributed to
    persons who discontinued the text chats or did not show up at the hotel room.
    He submits this calculation demonstrates that the great majority of customers refused
    to engage a juvenile person.

[142]

I agree that these calculations corroborate the impressions offered
    by the police testimony  that a considerable majority of the persons who
    responded to the police ads refused to engage the sexual services of a juvenile
    when offered the opportunity to do so. The import of this fact must be assessed
    in light of the entrapment jurisprudence.

[143]

Earlier cases addressed the number of innocent persons affected
    only implicitly by circumscribing the space in which police could solicit
    individuals. As noted earlier, in
Barnes
Lamer C.J. said, at p. 462, in
    many cases, the size of the area itself may indicate that the investigation is
    not
bona fide
. However, he did not expressly consider the number of
    innocent persons at the Granville Mall who could have been solicited by the
    police. I imagine the vast majority of persons at the Granville Mall were not
    drug traffickers. Moldaver J., in his dissent in
Ahmad
, observed 
Barnes
enabled the police to target thousands of unknown persons and provide them with
    an opportunity to traffic in drugs: at para. 117.

[144]

Barnes
is still good law.

[145]

That a considerable majority of men who responded to the ad
    disengaged when the undercover officer disclosed her age is not determinative
    on its own.
Ahmad
, in expressly including the number of persons affected
    as a factor to be considered, did not assign it greater prominence than the
    other factors listed. In fact,
Ahmad
confirmed that
Barnes
, in
    which a considerable majority of persons at the Granville Mall did not traffic
    in drugs, was still good law. The court must consider all the circumstances of
    the case in determining whether the space within the scope of the investigation
    is sufficiently precisely and narrowly defined.

F.

Conclusion

[146]

All the above considerations must be taken into account in
    determining the balance between individuals right to be left alone and
    societys interest in eliminating the exploitation of juveniles.

[147]

The factors, the seriousness of the crime, and the difficulty of
    investigating it, weigh heavily in favour of finding random virtue testing was
    avoided. The invasion of intensely personal privacy interests and the number of
    innocent persons affected support the opposite conclusion. The police investigation
    intruded only on persons engaged in criminal activity and in a virtual space that
    has little or no value to freedom of expression. There is no less intrusive
    investigative technique available. There is no suggestion of racial profiling,
    stereotyping or reliance on vulnerabilities in the design or implementation of
    the investigation.

[148]

Considering the above factors, all the circumstances and the
    applicable principles, I conclude that Project Raphael was a bona fide police inquiry
    and that the police did not require reasonable suspicion that the person
    responding to the ad was seeking someone underage before extending offers to commit
    the offence of communicating to obtain for consideration the sexual services of
    an underage person. In the course of the investigation the police necessarily provided
    persons with the opportunity to commit the rationally connected and
    proportionate offence of communicating with a person they believed to be
    underage to facilitate sexual contact with them. I would conclude the respondent
    was not entrapped.

[149]

I would grant the appeal and set aside the trial judges order to
    stay the respondents convictions. I would remit the matter to the trial judge
    for sentencing.

Released: May 17, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Tulloch J.A.

I agree. David M. Paciocco J.A.





[1]

Although Truong provided testimony that
    called upon specialized knowledge, n
o expert evidence
voir dire
was conducted. This was not raised as an issue in this appeal, no doubt because
    it was not problematic in the circumstances of this case. When the question of
    Truongs expertise arose in
Haniffa
, defence counsel effectively waived
    the need for a
voir dire
by advising the court that he had no problem
    with Truongs evidence on the issue of entrapment, that he had been expecting
    it, and did not expect Truong to have to be qualified. The respondent clearly
    took the same position by agreeing to have this transcript, including this
    exchange, admitted as evidence during his entrapment
voir dire
, while
    raising no objection to Truongs qualifications during that hearing. Moreover,
    Truong clearly had the specialized experience to offer the evidence he did.


