Evaluating the Doctrine of Entrapment in Online Spaces: R v Haniffa and R v Dare Granted Leave to Appeal
Can the police target an online community that is known to match interested parties with underage escorts? The Supreme Court’s (“SCC”) latest grants of leave to appeal from R v Haniffa 2021 ONCA 326 [Haniffa] and R v Dare, 2021 ONCA 327 [Dare] will be a welcome advancement to how entrapment is conceptualized in online spaces.
On December 23, 2021 the Supreme Court granted leave to appeal in the case of Erhard Haniffa v. Her Majesty the Queen. Subsequently, on January 13, 2022, the SCC granted leave to appeal in Temitope Dare v. Her Majesty the Queen. The appeals will be heard together alongside Corey Daniel Ramelson v. Her Majesty the Queen. These cases were considered together at the Ontario Court of Appeal [“ONCA”] with R v Jaffer, 2021 ONCA 325 [“Jaffer”]. R v Ramelson, 2021 ONCA 328 [Ramelson] differed from Haniffa and Dare as it was a Crown appeal.
The appeals concern convictions arising from Project Raphael – a 2014 York Regional Police [“YRP”] undercover investigation (Haniffa, para 1). The purpose of the investigation was to target individuals seeking to purchase sexual services (referred to as “buyers”) from juveniles (Haniffa, para 1). The issue was whether the police entrapped all four individuals. The parties argued that the trial judges erred “by concluding Project Raphael was a bona fide inquiry and failing to find that they were entrapped” (Haniffa, para 16; Dare, para 12; Ramelson, para 69).
In an attempt to target interested buyers, the YRP posted on an American website called Backpage. It is important to note that the website was shut down by the U.S Department of Justice in 2018 after it was deemed to have enabled human trafficking (Backpage Shutdown). The YRP, posing as female escorts, posted advertisements on Backpage and once interested persons responded to the ads, the YRP would begin text messaging them (Haniffa, para 2). In the course of the conversation, the escort would confess that she was underage (Haniffa, para 2). If the buyer continued the conversations to the point of arranging sexual services, they would be sent a location to complete the transaction (Haniffa, para 2). Upon arrival, they were arrested and charged with the following offences:
- 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);
- 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
- 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) (Haniffa,para 2).
Similar Scenarios: Haniffa, Dare, Ramelson
In Haniffa, a YRP officer posed as “Jamie” who claimed to be a “young, shy, fresh and new” girl who was eighteen years old (Haniffa, para 5). With the understanding that Jamie was fifteen years old, Haniffa sought Jamie’s services at a hotel (Haniffa, para 5). Upon arrival, Haniffa was charged (Haniffa, para 5). Here, the descriptive words, especially the term “young”, are important as they may be interpreted by the SCC to signify that the buyer knew the escort was underage.
Similarly in Dare, the accused agreed to meet up with “Kathy” who was said to be a “sexy and young girl” who has a “young friend” (Dare, para 5). Over the course of conversation, Kathy indicated she was fifteen years old (Dare, para 6). At trial, Dare contended that he, like Haniffa, did not actually believe the escort was under eighteen years of age (Dare, para 9).
As with Dare and Haniffa, the accused in Ramelson attempted to meet up with “Michelle” who described herself as a “tight brand new girl” who is “sexy and young” and who has a “young friend” (Ramelson, para 9). Michelle warned Ramelson that the fact that she was underage typically scared guys off and emphasized her age on three separate occasions (Ramelson, para 10). Ramelson assured her he was okay with it as long as they were “sexy and willing” (Ramelson, para 10). At trial, Ramelson argued that he thought they were engaging in role play and that she was at least eighteen (Ramelson, para 12).
The Law on Entrapment
Prior to the leading case of R v Ahmad, 2020 SCC 11 [Ahmad], R v Mack  2 SCR 903, [Mack] and R v Barnes 1 SCR 449 [Barnes] were the leading authorities on when the defense of entrapment was available to an accused. Entrapment stands for the proposition that the police should not be seeking to present individuals with criminal opportunities (Mack, 904). As Justice Lamer posited in Barnes, the police are not allowed to randomly “virtue test” people and they cannot arbitrarily target individuals and then present an illegal opportunity (Barnes, 463). Entrapment can be divided into two types:
“The authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already in criminal activity or pursuant to a bona fide inquiry” (Mack, 964)
“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, 964)
At the ONCA, the parties, with the exception of Jaffer, proceeded via the opportunity-based approach (Ramelson, para 22). The Crown coalesced that the police did not have reasonable suspicion but contended that the enquiry was nonetheless bona fide (Ramelson, para 22).
How will the SCC interpret the “bona fide” inquiry?
The court in Ahmad narrowed the scope of what constitutes a bona fide inquiry which may provide insight into how the SCC could define it. At the ONCA, Justice Juriansz articulated the requirements of a bona fide inquiry, stating that the police must have,
[An] 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 (Ramelson, para 36).
In R v Williams, 2014 ONSC 2370 [Williams] (heard with Ahmad at the SCC) the police contacted individuals whom they had received anonymous tips about and attempted to solicit drugs from these individuals. As summarized in Ramelson, the SCC in Williams held that because the tips were “anonymous and unsubstantiated” the police had no claim that they were pursuing the phone numbers in good faith (Ramelson, para 27). As such, the police required reasonable suspicion about the individuals themselves before presenting the opportunity to sell drugs to them (Ramelson, para 27). Is it unsubstantiated that anyone on Backpage would be interested in soliciting sex from an underage person?
Detective Sergeant Troung of the YRP testified that Project Raphael targeted those “who would take the opportunity, though [were] not seeking one, to engage in sex with a minor.” (Ramelson, para 124). The Crown will have to distinguish the nature of the investigation from virtue testing. The fact that Backpage was shut down because of human trafficking could corroborate the fact that the website was notorious for matching buyers with underage escorts (Backpage Shutdown).
In all three cases the buyers had to view the escorts profile to some degree before engaging. The profiles all indicated the escorts were “young” even though the term “underage” was never explicitly used, for obvious purposes. This is relevant because the SCC in Williams found the accused to have been entrapped because he had said nothing in the phone call that would’ve “tipped off” the police that he regularly sold drugs (Ramelson, para 29). Ahmad, in contrast, answered the phone and asked, “what do you need?” indicating to the police that they had called someone in the business of drug trafficking (Ahmad, para 24)
An Opportunity for an Addition to the Open List of Factors?
To ensure random virtue testing is avoided and the space is defined with sufficient precision for reasonable grounds of suspicion, Ahmad summarizes a list of factors that “may be helpful” for courts to consider (Ahmad, para 40). The list includes: seriousness of the crime, time of day, expectation of privacy, importance of freedom, and availability of other “less intrusive investigative techniques” (Ahmad, para 41). It is promising for the accused that the list is non-exhaustive. Since Ahmad was the first case that dealt with the virtual space, it will be fascinating to see how the SCC will apply requirement that the space under investigation is “sufficiently precise and narrow” (Barnes, 462).
The fact that the “sufficiently precise and narrow” list is open ended is beneficial to the accused because it allows the accused to introduce other important factors for consideration. Specifically, the accused can introduce factors that pertain to online spaces and the virtual environment. For example, in Ramelson, the accused argued that he believed he and the escort were engaging in role-play (Ramelson, para 12). Further, in Haniffa, the accused argued that he as a child experienced sexual assault, and as such, would never want to have sex with a minor (Haniffa, para 9). He claimed to believe that he was talking with a police officer, or a pimp that was attempting to extort him (Haniffa, para 9). While it is questionable why he went to the agreed location if he had this belief, the expectation of the accused poses a number of provoking consideration for the SCC.
For one, the Court will need to assess the level of legitimacy of online conversations given the fact that online/text messages are prone to various misunderstandings and miscommunications. Where phone conversations follow a linear nature, text messages can be more nuanced and do not always follow a clear progression. When confusion arises in text conversations, it is easy to make assumptions about what the other party implied or intended to communicate. While it is undisputed that the accused in these cases went to the location to meet with the escorts, their intention in going, and assumption of who they would find, as informed by the text messages, requires assessment.
Further, given the lack of accountability online where anyone can pretend to be anybody, the Court will need to analyze whether parties could reasonably expect that the person they were engaging with was who they claimed to be. The phenomenon of “Catfishing” has gained enough popularity that it is now recognized by the Oxford Dictionary. When dealing with virtual spaces, the Court will need to ask, “Is the space defined with enough precision that the accused had reason to trust the legitimacy of the conversation?”
The SCC may want to outline what specific expectations and interests are protected in a virtual space. What expectation of legitimacy online are buyers engaging with? These are questions that arise in the technological age, and ones that the SCC may want to consider in delineating boundaries for future undercover investigations in the virtual space.