R. v. Jaffer, 2021 ONCA 3252022 SCC 45 (39676)

“J was 1 of 104 people arrested over the course of “Project Raphael”, an online investigation conducted by the York Regional Police that targeted the buyer side of the juvenile sex work market. In 2014, while browsing the escort subdirectory of Backpage.com, J messaged an undercover officer posing as “Kathy”. Communicating with J by text, “Kathy” eventually revealed that “she” was 15 years old. When J arrived at a designated hotel room to meet “Kathy”, he was arrested and charged with offences under ss. 172.1(1)(a) and 286.1(2) of the Criminal Code. A jury convicted J on both counts but he applied for a stay of proceedings based on entrapment. The application judge dismissed the application, concluding that Project Raphael was a bona fide inquiry and that the police had reasonable suspicion that J was engaged in criminal activity when they offered him the opportunity to commit the offences. The Court of Appeal dismissed J’s appeal, in which he made arguments on both opportunity‑based and inducement‑based entrapment.”

The SCC (9:0) dismissed the appeal. 

Justice Karakatsanis wrote as follows (at paras. 7-10):

“Mr. Jaffer adopts the arguments raised in the companion appeals as they concern opportunity-based entrapment, adding that the police lacked reasonable suspicion over him personally. I have addressed these points in my reasons in Ramelson, where I concluded that Project Raphael was a bona fide inquiry. For the reasons given in that case, I would not accede to these grounds of appeal.

Mr. Jaffer’s second argument is that the courts below erred in failing to take his personal circumstances into account when assessing whether he was induced. Mr. Jaffer acknowledges that the police could not have known that he was living with undiagnosed Asperger’s Syndrome, but submits that such personal circumstances are relevant and ought to be considered in the analysis of inducement-based entrapment. Mr. Jaffer explains that the common symptoms of his condition — in particular, a difficulty socializing and rigid rule compliance — put him at a heightened risk for being induced. In addition, that condition, and an earlier interaction he had with police, where he had agreed to provide information about a particular sex worker and her pimp, lent credence to his explanation that he had planned to meet “Kathy” only to gather information and alert the authorities.  

The inducement branch of the entrapment doctrine provides that even if the police have reasonable suspicion over an individual or act under a bona fide inquiry, they cannot “emplo[y] means which go further than providing an opportunity” to commit a crime (R. v. Mack, [1988] 2 S.C.R. 903, at p. 966). That assessment may include looking at “whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime” or whether the police “appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction”, among other factors (p. 966). But the assessment is objective and focuses on the police’s conduct, not on that conduct’s effect “on the accused’s state of mind” (p. 965). In my view, the issue of whether that framework ought to be revised is better left for another case. Whatever the merit of Mr. Jaffer’s legal arguments — a point I do not decide here — the jury, in full knowledge of Mr. Jaffer’s circumstances, rejected his evidence that he had intended to visit the hotel room solely to gather information. In convicting him, the jury did not have a reasonable doubt about the purpose for which he arranged the meeting. Echoing that conclusion, the application judge found that Mr. Jaffer had been intent on a sexual transaction, even after learning the sex worker’s age. No error in those findings has been demonstrated. Nor has Mr. Jaffer pointed to any indication that the police “employed means which go further than providing an opportunity” to commit the offences (Mack, at p. 966). Even if Mr. Jaffer’s subjective circumstances were considered under the legal framework for inducement, then, they could not affect the result. I would not accede to this ground of appeal.”