Police Entrapment and the Digital Age – R v Chiang

In the recent decision of R v Chiang, 2012 BCCA 85 (Chiang), the British Columbia Court of Appeal (BCCA) endorsed police usage of Craigslist.ca (Craigslist) for “random virtue testing.” Chiang illustrates the ever-evolving game of cat-and-mouse between police and criminals in the digital age, and the courts’ deference to this reality.

As a result of media reports and investigations suggesting underage females in Saanich, BC were offering sexual services via Craigslist, the police set up a sting operation using an ad in the erotic services section of the website. Individuals who responded to the ad were told that the females were underage. When the appellant, Pai-Chih Chiang, responded to the ad he was informed that the females were underage. He persisted in his attempt to obtain sexual services and agreed to meet an undercover police officer posing as a procurer in a motel parking lot in Saanich. When Chiang arrived at the parking lot, he had a conversation with the undercover officer, in which she clarified that the fictitious female was under the legal age of 19 and asked if he was still interested. Chiang responded, “Yeah, I’ll check it out,” and proceeded to enter the room, at which point he was arrested. Chiang was convicted under s. 212(4) of the Criminal Code for communicating to procure sex with a minor. The Supreme Court of British Columbia refused his subsequent application for a stay of proceedings on the basis of entrapment.

The leading cases on entrapment cited by the BCCA all took place in the context of illicit drugs. In Mack v the Queen [1988] 2 SCR 903, the Supreme Court of Canada (SCC) accepted the accused’s claim of entrapment on the basis that the “informer enlisted by the police had been extremely persistent in urging the appellant to supply him with drugs and had even engaged in somewhat threatening behaviour.” Likewise, in R v Swan 2009 BCCA 142, the BCCA held that police “cold calling” was unacceptable, being “based on a bare minimum of information… and with a complete disinterest in distinguishing between anonymous tips … and more reliable tips providing further information about a particular suspect or telephone number.”  The finding of entrapment in Mack and Swan was differentiated from Barnes v The Queen 1 SCR 449, where an undercover officer’s attempt to buy drugs from any individual who, in her opinion, “appeared…inclined to engage in the sale of such drugs” in a part of Vancouver known for drug trafficking was accepted as a “bona fide investigation targeting the high incidence of drug trafficking in that location.”

The law then, would seem to demand that police reasonably target their investigation, and not engage in especially coercive techniques. In Chiang, the BCCA was asked to apply this standard in the digital context. In so doing, the BCCA found both that the defence of entrapment had not been made out, and that police are owed a level of deference when assessing the reasonableness of their tactics.

As concerns the issue of entrapment, the court noted that the police had a “credibly based belief that conduct prohibited by s. 212(4) of the Criminal Code was occurring in their area,” and that the sting operation was “carefully limited” through both the Craigslist ad and the conduct of the undercover officer in the motel parking lot.

With regards to the digital context of the sting operation, the BCCA explicitly couched their decision in Supreme Court jurisprudence which deferred to police tactics in the context of online crime. Referencing R v Legare, 2009 SCC 56, the BCCA reiterated the SCC’s observation that “modern internet facilities afford easier access to young people for individuals minded to exploit their youth and vulnerability.” As such, the BCCA, again quoting the SCC in Mack, opined that “if the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police; as crimes become more sophisticated so too must be the methods employed to detect their commission.” Accordingly, the BCCA upheld the police conduct, explaining that police must be given “considerable latitude” to enforce the law in this digital context.

Analysis

To my mind, the correctness of Chiang actually has little to do with its online context, but rests heavily on the interaction between the undercover officer and Chiang in the motel parking lot (M is the officer, B is Chiang, J is the fictitious underage female):

M.        So I just want to go over some of the ground rules with you quickly.

B.         Ok.

M.        Because [J] is only 16, there can be no rough play, or rough sex, or anything like that.

B.         She’s only 16? (The officer testified that Bob [B] appeared somewhat shocked)

M.        Well yeah, I told you that on the e-mail.

B.         I thought that was just a number. I didn’t know.

M.        Well, yeah, that’s how old she is. It’s cool. She is a great girl and she’s totally good to go and she is eager and wants to please.

B.         Yeah, but is that alright?

M.        Well no – I mean it’s not the legal age of 19, but whatever.

B.         Oh.

M.        There are 16 year olds walking the streets Bob. At least this way we are trying to protect them as best we can, which is why you have to meet me first and go over the rules because we are looking out for them and their safety, right?

B.         No, I’m not like that, I’d never be rough. (The officer testified that Bob appeared embarrassed) Do you have some kind of card or ID for me to look at?

M.        No, I don’t do that Bob. I don’t start showing clients my ID.

B.         Oh.

M.        I don’t know what you think you’re walking into here Bob, but if you want [J] she’s in there and she’s a great girl, but if you don’t, well, that’s up to you. I just needed to make sure that everything is all good with you and you understand the ground rules of what I’ve explained already. No rough sex and all that.

B.         No, I’m not like that.

M.        I’m sure you’re not, so it’s all cool and if you want [J], she’s in there (indicating to the hotel room – giving a head nod). And I’ll get the money from you later or leave it with her. So, I don’t know what you want to do.

In Mack, the SCC said the following about entrapment:

If the police must go this far, they have gone beyond providing the appellant with an opportunity. I do not, therefore, place much significance on the fact that the appellant eventually committed the offence when shown the money. Obviously the appellant knew much earlier that he could make a profit by getting involved in the drug enterprise and he still refused. I have come to the conclusion that the average person in the position of the appellant might also have committed the offence, if only to finally satisfy this threatening informer and end all further contact.

If the overarching paradigm is “opportunity,” and the courts are to be wary of conduct that, practically, might have the effect of pressuring someone into committing an offence, at what point does an officer’s conduct go too far? Do we only care about threatening language or circumstances? What about appearing to legitimate the wrongful conduct?

Consider again, the undercover officer’s comments to Chiang in the parking lot. Comments such as, “It’s not the legal age of 19 – but whatever” (emphasis added). On Chiang’s realization that the fictitious female was actually 16 years of age, the officer commented, “Well, yeah, that’s how old she is. It’s cool. She is a great girl and she’s totally good to go and she is eager and wants to please” (emphasis added). Likewise, note the way the officer veils the practice in terms of protecting underage girls, as if to suggest it were acceptable compared to other, more dangerous situations. The officer claims, “There are 16 year olds walking the streets Bob. At least this way we are trying to protect them as best we can, which is why you have to meet me first and go over the rules because we are looking out for them and their safety, right?”

To clarify, it is not my position that the BCCA was wrong to dismiss Chiang’s appeal. Section 212(4) of the Criminal Code represents a valid prohibition which is necessary to protect some of the most vulnerable individuals in Canadian society. With  regard to the court’s application of the law on entrapment in the digital age, the BCCA has seemingly taken a logical approach, based in authoritative jurisprudence. Likewise, as concerns whether entrapment actually took place, I can accept that reasonable people might easily side with the BCCA’s analysis.

What I find interesting is why no analysis was carried out on the actual conduct of the police, simply because it was not “threatening” in nature. The BCCA was unequivocal in concluding that there was no issue in the case as regards entrapment, that it was a slam-dunk. In so holding, they missed an opportunity to expand or clarify the law on entrapment in a positive manner by warning that police can pass the “opportunity” threshold without resorting to threatening behaviour. Deference may be owed to police in the context of sting tactics in the digital era. It seems, however, that the BCCA has extended that deference beyond the venue of the World Wide Web.