Entrapment and Bona Fide Internet Investigations: R v Ramelson, Jaffer, Haniffa, Dare
When the police investigate crime over the internet, they do so on a tightrope, perilously close to tumbling into privacy violation, random virtue testing, or worst of all, entrapment. At the end of 2022, in four related appeals, the Supreme Court of Canada considered these dangers and the validity of internet-based sting operations. The bulk of the Court’s reasons were given in R v Ramelson, 2022 SCC 44 [Ramelson].
Facts of the Case(s)
In 2014, the York Regional Police launched “Project Raphael”, an online investigation into the juvenile sex work market. The police, and particularly one Inspector Thai Truong, became aware that juvenile sex work was being advertised—and purchased—on the escort subdirectory of Backpage.com.
At first, investigations were focused on existing ads. A number of sex workers were suspected of being juveniles based on their ads, and further probing determined that some of them were, in fact, under the age of 18. Even more troubling, the police found that the average age of juvenile sex workers advertising on Backpage.com was 14.8.
Selling sex itself is not a criminal offence, so the police decided to launch a buyer-side investigation, which wouldn’t require actual sex workers to cooperate. The police created their own ads on Backpage.com, modelled after those posted by juvenile sex workers, using words like “tight” and “fresh” to connote youthfulness.
The Offences Committed
Messrs Ramelson, Jaffer, Haniffa, and Dare were four of 104 persons ultimately arrested during the three years that Project Raphael was active. Each of them responded to the police’s advertisements and began chatting with an (unknown to them) undercover officer to arrange a sexual transaction.
Only at the point that each of the men had arranged a sexual encounter did the undercover officer reveal the sex worker’s age to be 15 years old. The men could then refuse to proceed, or continue to pursue the encounter, thus committing three offences: child luring under 16, communicating to obtain sexual services from a minor, and arrangement to commit sexual offences against a person under 16 (Criminal Code, sections 172.1(1)(b), 286.1(2), 172.2(1)(b)).
Each accused confirmed his intention to complete the arranged transaction with the sex worker, despite learning that she was only 15 years-old. When he arrived at the hotel room, he was arrested and charged.
Lower Court Decisions
Each of the four accused was convicted on all charges at trial. Upon conviction, each accused applied for a stay of proceedings for abuse of process, alleging that he was entrapped. All but Mr Ramelson’s applications were dismissed. The Ontario Court of Appeal, in all four cases, found that each accused was not entrapped, because the police held a reasonable suspicion over a sufficiently-defined location and were thus acting pursuant to a bona fide inquiry.
At the Supreme Court of Canada, Mr Ramelson’s case was heard together with three other appeals from entrapment applications related to Project Raphael: R v Haniffa, R v Dare, and R v Jaffer.
Messrs Ramelson, Haniffa, and Dare advanced the same or similar arguments, and so R v Haniffa and R v Dare were decided on the application of the Court’s comments in Ramelson to the conversations of each appellant with their respective undercover officer.
Mr Jaffer argued, in addition, that he was particularly susceptible to inducement because of an undiagnosed developmental condition. The inducement branch of the entrapment doctrine is triggered when police go farther than providing an opportunity to commit a crime and positively induce a suspect to offend. However, as the jury had full knowledge of Mr Jaffer’s personal circumstances and had no reasonable doubt, and the application judge found that Mr Jaffer was intent on a sexual transaction, the Court found no error on the question of inducement.
The Court found that none of the four appellants were entrapped.
Police have a number of legitimate investigative techniques at their disposal — but if they go too far and actively try to get people to commit crimes, law objects. The entrapment doctrine serves to protect persons who, while technically guilty of an offence, only committed that offence because the police, in simple terms, set them up.
When a convicted offender was entrapped to commit the offence, the police’s bad faith behaviour disentitles the Crown to a conviction. Entrapment can only be argued, on application, after an offender is convicted. It is, therefore, not a “defence”, because a valid defence leads to an acquittal. When entrapment is found, the only remedy is a stay of proceedings—not an acquittal, but a ruling that the legal process against the offender cannot continue.
Entrapment is a form of abuse of process. The doctrine protects citizens against extreme or nefarious exercises of police power. It ensures that only those offenders that would have committed the offence anyway can be caught and convicted when the police have little or no reason to suspect that they are involved in crime. Accordingly, there are two types of entrapment: opportunity-based and inducement-based entrapment.
In these cases, opportunity-based entrapment was alleged. Entrapment occurs when officers provide a person the opportunity to commit an offence without
- reasonable suspicion that that person is involved in criminal activity or
- acting pursuant to a bona fide inquiry.
An opportunity to commit an offence is given at the point where an offender commits a crime by simply saying “yes” (see R v Ahmad, 2020 SCC 11 [Ahmad], para 63). Before providing an opportunity to commit an offence, police must have reasonable suspicion that the person is involved in criminal activity.
In Ramelson, the police communicated with the accused about arranging a sexual transaction in circumstances that were not themselves illegal. Only when they confirmed that Mr Ramelson was interested in the sexual encounter, in circumstances connoting a sex worker with extreme youthfulness, did they reveal that the sex worker was 15 years-old. Mr Ramelson’s choice to continue to pursue the encounter was the “yes” needed to complete the offence.
In a bona fide inquiry, police need not have reasonable suspicion that a person is involved in criminal activity. Instead, police need only have reasonable suspicion over a sufficiently precise area. If they do, and they are acting with a genuine aim to investigate or repress crime, the police may offer an opportunity to anyone in that space (see R v Barnes,  1 SCR 449).
For more about the entrapment doctrine, see Fahamida Zahan’s 2021 post on the decision in Ahmad.
A Unanimous Court: Project Raphael was a Bona Fide Inquiry
The key question in Ramelson was whether the virtual space in which Project Raphael was conducted was sufficiently precise for a bona fide inquiry.
The Court last spoke on the entrapment doctrine in Ahmad, in the context of dial-a-dope drug trafficking. At that time, the Court discussed factors for courts to consider when defining a virtual “space” within which police may have a reasonable suspicion.
Writing for a unanimous court, Justice Andromache Karakatsanis discussed important differences between online spaces and physical spaces (Ramelson, para 49):
Online spaces, in short, differ from physical spaces in at least three ways: the Internet, being informational rather than geographical, sheds many of the physical world’s limitations in terms of scale and functions; people behave differently when online; and virtual spaces raise unique rights concerns. As Ahmad stated, online spaces are qualitatively different.
The police had sufficient evidence pointing to a “pervasive problem stemming from a particular type of online ad on Backpage” (para 75), which demonstrated reasonable suspicion in the virtual space.
In Ahmad, the Court suggested that an entire website was overbroad. The appellants in the Project Raphael cases argued much the same. However, the investigation was not conducted over the entirety of Backpage.com, but specifically the escort subdirectory, and even more precisely, the advertisements themselves. Justice Karakatsanis agreed with the Ontario Court of Appeal that, because offenders needed to click on and respond to the ads, the area of the inquiry was sufficiently narrowed (Ramelson, para 77).
While the appellants suggested that an entire website was overbroad, the Court held that “the seriousness of the crimes and the difficulty investigating them via alternative techniques” (para 78) were sufficient to justify a broader area. The Court also appeared persuaded by the Court of Appeal’s position that the requirement that offenders click on and respond to the ads in question sufficiently narrowed the area from the entire website to the ads themselves (para 77).
Should Serious Criminality Justify a Broader Investigation?
Throughout her discussion of defining the parameters of an internet space, Justice Karakatsanis suggested that the level of criminality in question may justify a broader radius of investigation (Ramelson, para 67). In short, the more serious the criminality in question, the more justified police become in casting wide nets of investigation that may probe into citizens’ internet lives.
The Court was particularly attuned to the privacy concerns related to online investigations in its judgment. Online behaviour may be reliant on a certain guarantee of anonymity, which is compromised by widespread data collection. However, in cases like Project Raphael, where the offence in question is both serious and difficult to investigate, police may have no reasonable alternative to a broad internet investigation.
While I agree that police need a certain amount of latitude in investigations, particularly where criminal activity harms uniquely vulnerable persons. Indeed, the sexual offences in Ramelson, etc, are crimes of preparation (as Justice Karakatsanis discussed at para 88 of Ramelson) — simply communicating or planning sexual services with juveniles is something that Parliament has chosen to criminalize, even though they require a relatively low level of positive action (and, in fact, the offender may never be in physical contact with the juvenile at all). The need to prevent such positive action from occurring—to protect the under-16 sex workers—is uniquely pressing.
However, the Court’s willingness to permit a broader, larger use of police powers to target would-be offenders should be taken with a certain degree of caution. Entrapment is at its core an abuse of process—an abuse of the powers that states confer on their police officers. Police enforce and investigate crimes that have been committed.
The question, I think, is who and what investigations are aimed at. Investigations aimed at the protection of the vulnerable are, in my opinion, more socially desirable, and may justify a broader use of investigative techniques that do not rise to the level of coercion or improper temptation. This, in turn, requires a deep and careful consideration of who the state is prepared to decide needs “saving”, in a moral capacity. However, where investigations are aimed at discovering potential criminality, particularly when a person may never actually offend, treads too closely into random virtue testing to justify the use of state power to lead a citizen too close to their breaking point.
In the context of sexual offences against young people, police may well be justified in taking greater preventative steps. In other common entrapment contexts, like drug offences, the “level of criminality” determination may prove a much more slippery slope. Any expansion of police powers that allows police to tempt citizens into committing crimes they may not have otherwise committed should be exactingly scrutinized. Some people are more likely to do wrong when the opportunity is presented, whether or not they would have sought out the opportunity—or, indeed, had ever thought about it at all.