|
Criminal - Entrapment. R. v. Krawczyk
In R. v. Krawczyk (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal grounded in 'entrapment':[44] As the Supreme Court stated in Ahmad, at para. 15, the test for entrapment and its rationale set out by the court in Mack has stood the test of time. That test is found in Mack at p. 959:There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides . . . or, (b) having 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. [45] In setting out this test, the court in Mack explained, at p. 975, that because entrapment occurs where the accused has committed the crime, but did so as a result of an abuse of process by the Crown:[T]he best way to achieve a balance between the interests of the court as guardian of the administration of justice, and the interests of society in the prevention and detection of crime, is to require an accused to demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment. [46] However, while the onus of proof of entrapment is on the accused by a preponderance of evidence, there is an important evidentiary burden on the Crown to prove that before the police offered the accused the opportunity to commit the crime, they had a reasonable suspicion that the accused was already involved in the criminal activity. The purpose is to catch a person in the act of criminality they were already engaged in, not to entice a vulnerable neophyte into becoming involved in criminal activity.
[47] In Ahmad, the court explained that it is the Crown that has in its possession the evidence of the basis for the police to say they had reasonable suspicion that the accused was already involved in criminal activity before they gave him the opportunity to commit an offence. There is therefore an evidentiary burden on the Crown to place the evidence of the basis for the reasonable suspicion before the court. The court stated at para. 83:[T]he facts relied upon to ground reasonable suspicion must be put before the court for independent review. As we have emphasized, the primary purpose of the reasonable suspicion standard is to allow for meaningful judicial review of police conduct…Requiring the police to disclose their reasons for targeting an accused does not alter the onus on the accused to prove entrapment; it merely recognizes that only the police can point to the circumstances known to them that give rise to reasonable suspicion. ....
[69] The entrapment doctrine is designed to avoid punishing previously innocent people for failing to pass a random test of their virtue. Relying on the appellant’s attitude toward the importing scheme after it was already initiated, as the only confirmatory evidence that it was he who initiated it, turns the entrapment doctrine on its head. The question on an entrapment hearing is not how excitedly or emphatically the accused failed a random virtue test, but whether there was in fact a random virtue test in the first place.
....
[71] The purpose of the entrapment doctrine is to deter the police from enticing and virtue testing innocent people into committing crimes. That is an abuse of process. . R. v. Krawczyk
In R. v. Krawczyk (Ont CA, 2024) the Ontario Court of Appeal allowed an 'entrapment' appeal.
The case illustrates the unusual procedural elements of an entrapment argument - where guilt is first established without raising entrapment, but then a separate stay motion is conducted on the entrapment argument:[79] I would therefore allow the appeal, quash the convictions, affirm the finding of guilt in the court below, and order a new trial limited to the issue of the appellant’s motion for a stay based on entrapment: see R. v. Pearson, 1998 CanLII 776 (SCC), [1998] 3 S.C.R. 620, at para. 16; R. v. Braithwaite, 2023 ONCA 180, at para. 12. . R. v. Faroughi
In R. v. Faroughi (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a conviction for child luring [CCC 172.1(1)(a,b)] and (successfully) from a "communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18" [CCC 286.1(2)]. Here, the appellant argued that the trial judge erred on the issue of entrapment:(2) Entrapment Ground of Appeal
[43] Entrapment is a form of abuse of process, the remedy for which is a stay of proceedings. In R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at pp. 964-65, the Supreme Court of Canada outlined the two ways in which entrapment can occur: (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the 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.
[44] At the oral hearing of the appeal, the appellant abandoned his argument on the first manner of entrapment in light of R. v. Ramelson, 2022 SCC 44, 475 D.L.R. (4th) 458. In that case, the Supreme Court determined that Project Raphael was a bona fide inquiry.
[45] The appellant therefore focused on the second manner of entrapment, arguing that the trial judge erred in his determination that the police did not induce him to commit the offences. The appellant submits that the police knowingly exploited his vulnerabilities of being youthful and nervous by pressuring him with statements like “Stop playing games” and “U coming or not” after he indicated a desire to disengage for a second time.
[46] In his reasons dismissing the entrapment application, the trial judge found that it was “clear” the appellant was not induced to commit the offences. He noted that: (a) the texts revealed no threat or coercion by the police; (b) the appellant initiated the text exchanges, was actively involved in the conversation, and showed an understanding of language associated with sex work; and (c) the appellant reengaged with the undercover officer twice.
[47] The inducement branch of the entrapment doctrine provides that the police cannot “emplo[y] means which go further than providing an opportunity” to commit a crime: Mack, at p. 966. This assessment involves a consideration of various factors, including whether the police appear to have exploited a particular vulnerability and whether an average person in the position of the accused would be induced: Mack, at p. 966. I agree with the Crown that the appellant’s argument that the inquiry should also be informed by the appellant’s personal circumstances and his explanations for feeling induced, revealed only after the police conduct had occurred, must be rejected. Given that the entrapment doctrine acts as a check on police conduct that society may otherwise find intolerable, the focus of the inducement branch must be on the conduct of the state. As Karakatsanis J. stated: “the assessment is objective and focuses on the police’s conduct, not on that conduct’s effect ‘on the accused’s state of mind’”: R. v. Jaffer, 2022 SCC 45, 475 D.L.R. (4th) 490, at paras. 9; Mack, at p. 965.
[48] The trial judge was entitled to conclude that the appellant was not induced. While the appellant’s texts revealed he was youthful – he said he was 20 years old – the entirety of the conversation does not suggest the police exploited a particular vulnerability that should have been known to them. The trial judge found that the appellant’s texts did not reveal an “immature or unknowing individual” or a “passive customer”. He negotiated services and rates. Following the officer’s statements of “Stop playing games” and “U coming or not”, the appellant re-engaged after a nine-minute delay. His subsequent behaviour, viewed through an objective lens, undermined the suggestion that the police created fear, as he continued to negotiate the price and refused to bring the cigarettes requested by the undercover officer. I see no error in the trial judge’s conclusion that the statements of the undercover officer would not have induced an average person in the position of the appellant.
[49] I therefore reject this ground of appeal. . R. v. Senior
In R. v. Senior (Ont CA, 2024) the Court of Appeal considered an unusual 'cop-defendant' criminal appeal, here where the court considers the law of entrapment:[5] In a trial by judge alone, the appellant was found guilty of 11 counts. Following the findings of guilt, the appellant brought an entrapment application seeking to stay most of the counts of which he was found guilty. The trial judge found that the appellant had been entrapped on three counts and stayed those counts. She dismissed the balance of the entrapment application and entered convictions on the eight remaining counts. The appellant was sentenced to a global sentence of seven and a half years imprisonment on the eight remaining counts.
...
Overview of the law of entrapment
[8] As context for the appellant’s arguments, recall that entrapment can be established in either of two distinct ways:1. The police provide a person with an opportunity to commit an offence without a reasonable suspicion that the person is already engaged in criminal activity or that people are carrying out criminal activity at a specific location (the “opportunity branch”); or
2. Where the police have reasonable suspicion about a person or a place, they go beyond merely providing an opportunity and induce the commission of an offence (the “inducement branch”) (R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at paras. 15-20; R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at pp. 917-18, 959-66; R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449, at pp. 460-63). ....
[12] First, the appellant argues that the trial judge erred by implicitly relying on the erroneous legal proposition that, to be entrapped, police conduct must be liable to induce “the average person” into committing the offences. The appellant argues that the trial judge ignored the following guidance in Mack, at pp. 961-62:I am not of the view that the hypothetical or average person model is the only relevant method of analysis. There may be situations where it cannot be concluded that a hypothetical person would likely have committed the offence under the same circumstances, and yet the presence of other factors support the conclusion that the police involvement in the instigation of crime has exceeded the bounds of propriety. [Emphasis in original] [13] I am not persuaded that the trial judge committed this error. At the outset of her reasons on the entrapment application, the trial judge conducted a thorough review of the law in relation to entrapment. I see no error in her review of the applicable law. In her review of the law, she quoted the passage from Mack referred to above. She recognized that the “average person” inquiry is a tool for analysis of entrapment, but not the only measure of whether police conduct constitutes entrapment by inducement. She also recognized that the list in Mack of the types of conduct that may constitute inducement is not exhaustive. Finally, she recognized that the question of whether a police operation constitutes exploitation or inducement is “a highly fact specific inquiry”.
[14] Consistent with Mack, in relation to counts #4 and #5, the trial judge considered the question of whether an average person in the circumstances of the appellant would have been induced to commit the offences. However, her reasons demonstrate that she did not limit her analysis of inducement to whether an average person would have been induced. She properly considered all the circumstances and found that the police did not induce the appellant to commit the offences and did not go beyond providing the appellant with an opportunity to commit the offences. I see no basis to interfere with these findings.
[15] Second, the appellant argues that the trial judge erred by finding that there was no deceit, fraud, trickery, or reward at play. The appellant argues that the undercover operation, by its very nature, involved deceit and trickery. The appellant further argues that career rewards were effectively dangled to him by the police as an inducement. He argues that these took the form of valuable tips from Henry that assisted the appellant in his career at YRPS, coupled with the risk that tips would be withheld if he refused to run the licence plate query, and praise for the appellant’s work. The appellant argues that these were inducements that manufactured the offences.
[16] I reject this argument. The use of undercover officers is not the type of deceit or trickery that, without more, amounts to entrapment by inducement. . R. v. R.R.
In R. v. R.R. (Ont CA, 2023) the Court of Appeal characterizes the test for criminal 'entrapment':[7] There is no dispute regarding the law of entrapment. The cases of R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at pp. 959, R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 15, and R. v. Ramelson, 2022 SCC 44, at para. 29, set out the test that must be met.
[8] There is entrapment 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; and
(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. . R. v. Ramelson
In R. v. Ramelson (SCC, 2022) the Supreme Court of Canada reviewed and developed the law of entrapment in an internet child luring case:[1] Some of the most pernicious crimes are the hardest to investigate. To draw those crimes into the open, the police, acting undercover, sometimes create occasions for people to commit the very crimes they seek to prevent. Done properly, such techniques may cast new light on covert offending, unveiling harms that would otherwise go unpunished. But taken too far, they may tempt the vulnerable or the morally wavering into criminality, and virtue-test many others, threatening privacy and the public’s confidence in the justice system. They demand caution.
[2] The stakes are highest on the Internet. While the medium has made activities more efficient, widespread, and harder to track, it has also allowed state surveillance to become, potentially, ever more expansive. The dilemmas this creates for balancing law enforcement with civil liberties, the rule of law, and the repute of the justice system are ongoing. This appeal, and its companion appeals, raise one of them.
[3] Between 2014 and 2017, “Project Raphael”, an online investigation of the York Regional Police (YRP), led to the arrests of 104 men for child luring and related offences. Ads posted by the police on the escort subdirectory of Backpage.com spurred text-message conversations, where an undercover officer, after agreeing to provide sexual services, revealed themselves to be a juvenile. All those who took up the invitation to visit the designated hotel room were arrested. Among them was the appellant in this case, Mr. Ramelson, as well as the three appellants in the related appeals (Mr. Jaffer (R. v. Jaffer, 2022 SCC 45), Mr. Haniffa (R. v. Haniffa, 2022 SCC 46), and Mr. Dare (R. v. Dare, 2022 SCC 47)). They argue they were entrapped.
[4] When the police lack reasonable suspicion that the individual is already engaged in criminal activity, the entrapment doctrine forbids them from offering opportunities to commit offences unless they do so in the course of a “bona fide inquiry”: that is, where they (1) reasonably suspect that crime is occurring in a sufficiently precise space; and (2) have a genuine purpose of investigating and repressing crime (R. v. Ahmad, 2020 SCC 11, at para. 20). That test applies to investigations in physical and virtual spaces alike. But as this Court noted in Ahmad, “state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space” (para. 37). There, the Court considered those differences in the context of surveillance that transpired in the investigative “space” of a phone number. This appeal, and the three related appeals, require us to do the same in the context of the Internet.
[5] At its core, the entrapment doctrine recognizes that sometimes “the ends do not justify the means” (R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at p. 938). Given the Internet’s potential reach, there is a strong public interest in ensuring that online police investigations do not unduly intrude on public life. In assessing whether an online space is sufficiently precise to ground the police’s reasonable suspicion, then, the Internet’s unique features must be considered. Being informational rather than geographical, online spaces flout the limitations of physical spaces; they may lead people to behave differently than they do in person; and their use can raise distinct rights concerns, notably over privacy. Unlike physical spaces, an online space’s parameters may say little about whether the space of an investigation was sufficiently precise. Instead, the space must be viewed with particular attention to its functions and interactivity to ensure that the space has been “carefully delineate[d] and tightly circumscribe[d]” (Ahmad, at para. 39). The factors discussed by this Court in Ahmad — in particular, the number of activities and people affected, the interests of privacy and free expression, and the availability of less intrusive investigative techniques — may assist in that assessment. They may be key to ensuring that the purview of an online police investigation was no “broader than the evidence allow[ed]” (para. 41).
....
A. The Entrapment Doctrine
[29] Whatever their utility in fighting crime, some police techniques are “unacceptable in a free society with strong notions of fairness, decency, and privacy” (Ahmad, at para. 16). Entrapment is one of them. It is not a traditional defence, but a form of abuse of process whose only remedy is a stay of proceedings. It may occur in two ways:(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;
(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.
(Mack, at pp. 964-65) [30] As a form of abuse of process, the entrapment doctrine flows from courts’ inherent jurisdiction to protect the justice system’s integrity, a power necessary to preserve “the respect and support of the community”, upon which the rule of law depends (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667; see Mack, at p. 938). Like abuse of process, the entrapment doctrine censures state conduct that “violates our notions of ‘fair play’ and ‘decency’ and which shows blatant disregard for the qualities of humanness which all of us share” (Mack, at p. 940).
[31] Entrapment recognizes that “police involvement in the commission of a crime can bring the administration of justice into disrepute” (Ahmad, at para. 16). When the police offer opportunities to commit crimes without reasonable suspicion, or induce their commission, they may transgress several expectations: that the police will not intrude on privacy; that they will not randomly test the public’s propensity to commit crimes, and still less manufacture them; that they, of all actors, will not act unlawfully for the purpose of entrapping others; and that they will not squander public resources on any of the above (Mack, at p. 958). Violating those expectations reflects poorly on law enforcement, but it may also diminish confidence in the justice system more generally.
[32] The remedy for entrapment is a stay of proceedings — the “most drastic remedy a criminal court can order” (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30) — not because the accused is entitled to an acquittal, but because the Crown “is disentitled to a conviction” (R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at p. 148; Mack, at p. 944). A stay of proceedings ends prosecutions that infringe basic norms, marking courts’ refusal to “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” (Mack, at p. 942).
[33] Yet law enforcement also serves an important public interest. The police must innovate if they are to match offenders’ ingenuity. Some offences, too, are hard to investigate: whether because they are “consensual”; because they “victimize those who are reluctant or unable to report them”; or because they may “lead to such great harm that they must be actively prevented” (Ahmad, at para. 18). And so drastic a remedy as a stay of proceedings calls for some restraint. These realities entitle the police to “considerable latitude” in their investigations (Mack, at p. 917), such that a finding of entrapment should issue only in the “clearest of cases” (p. 976).
[34] The doctrine thus strives to balance competing imperatives: “The rule of law, and the need to protect privacy interests and personal freedom from state overreach . . .” on the one hand, and “the state’s legitimate interest in investigating and prosecuting crime” on the other (Ahmad, at para. 22; see Mack, at pp. 941-42). Below, I consider what that balance requires in the context of police investigations into online spaces.
B. Bona Fide Inquiries and the Internet
(1) Overview
[35] The central issue on appeal is whether Project Raphael was a bona fide inquiry. This has two criteria: the police must have had (1) reasonable suspicion over a sufficiently precise space; and (2) a genuine purpose of investigating and repressing crime (Ahmad, at para. 20). Satisfying those criteria entitles the police to present “any person associated with the area with the opportunity to commit the particular offence” — even without individualized suspicion in the person investigated (R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449, at p. 463 (emphasis in original)).
[36] Bona fide inquiries serve a useful purpose. In some cases, without knowing who might offend, the police may reasonably suspect that certain criminal activity is occurring within a given space. And, depending on the crime investigated, proactive methods may be necessary. The bona fide inquiry prong recognizes the legitimacy of such investigations, even as it seeks to confine them within careful limits.
[37] The Court has twice applied this prong of the entrapment doctrine. In Barnes, the police suspected that considerable drug trafficking was occurring in a six-block area of Vancouver’s Granville Mall. The Court held that since the police’s suspicions were reasonable, they were entitled, acting in good faith, to approach anybody associated with the space with an offer to purchase drugs. In Ahmad, the Court considered two separate appeals in which police suspected that two phone numbers were being used for dial-a-dope operations. But since their suspicion was based on anonymous, unverified and uncorroborated tips, the Court held that the police did not have reasonable suspicion of illegal activity for the phone number itself, and so were not acting under a bona fide inquiry.
[38] Barnes loomed large in the courts below. For the Court of Appeal, it was the “archetypical example” of a bona fide inquiry (para. 23), showing that such investigations can potentially target thousands of people (para. 79). And for the application judge in Jaffer, a companion case, “an analogy c[ould] readily be drawn”, in the Internet context, “to the investigation of a geographical area in which specific crimes are known to be occurring to police” (A.R., Jaffer, vol. I, at p. 26).
[39] Yet the analogy calls for scrutiny. Physical spaces and actions are inherently limited in ways that virtual spaces and actions are not. The police in Barnes could have interacted with only so many people, approaching them one-by-one. And a physical space confines; it encloses people and things, and exhibits cycles of bustle and calm. Virtual spaces may escape those limits, inviting multitudes at all hours and distances, thus defying the boundaries we take for granted in the physical world. This explains why the Internet “provides fertile ground for sowing the seeds of unlawful conduct on a borderless scale” (R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 30). And it explains why online police investigations may bear far-reaching implications for state surveillance, civil liberties and the rule of law.
[40] The space of the police investigation in Ahmad — a phone number — was inherently limited: functionally, it only allowed the police to contact the person who could answer the phone. Yet the Court foresaw that privacy would be a major concern in virtual investigations more generally. The “breadth of some virtual places . . ., 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”, it wrote, made state surveillance over virtual spaces qualitatively different than surveillance in public spaces (paras. 36-37). The nature of those differences falls to be further considered here, in the context of the Internet.
[41] This appeal, then, requires the Court to apply Ahmad, to further address how virtual and physical spaces differ, and to consider what those differences imply for the law. I look first at online spaces before considering the bona fide inquiry prong in more detail. Details of the court's analysis continue at paras 52-71.
. R. v. Zakos
In R. v. Zakos (Ont CA, 2022) the Court of Appeal extensively explains criminal entrapment, a form of abuse of process [paras 21-51].
. R. v. Ramelson
In R. v. Ramelson (Ont CA, 2021) the Court of Appeal summarized the law of internet entrapment [paras 16-50].
|
