R. v. Ramelson, 2021 ONCA 3282022 SCC 44 (39664)

“‘Project Raphael’, an online investigation conducted by the York Regional Police, led to the arrests of 104 men between 2014 and 2017 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 underage. All those who took up the invitation to meet the undercover officer in a designated hotel room were arrested. In 2017, R responded by text message to such an ad posted by an undercover office posing as “Michelle”, who revealed she and her “young friend” were 14, after having agreed to a transaction with R. When R arrived at the hotel room, he was arrested and charged with three offences: (1) child luring under 16 (s. 172.1(1)(b) of the Criminal Code); (2) communicating to obtain sexual services from a minor (s. 286.1(2)); and (3) arrangement to commit sexual offences against a person under 16 (s. 172.2(1)(b)).

R was convicted of all three offences at trial, but applied to stay the proceedings based on entrapment. Entrapment occurs where police provide a person with an opportunity to commit an offence without reasonable suspicion that this person is already engaged in criminal activity; or without reasonable suspicion that crime is occurring in a sufficiently precise space (i.e. not acting pursuant to a bona fide inquiry). The application judge initially dismissed the application. However, after the Court released its decision in R. v. Ahmad, 2020 SCC 11, where it considered how the principles of bona fide inquiries apply in virtual spaces, the judge asked for further submissions. He then concluded R had been entrapped because the virtual space was too broad to support police’s reasonable suspicion and the police lacked reasonable suspicion over R personally. The Court of Appeal allowed the Crown’s appeal and set aside the stay of proceedings, concluding that the application judge erred in finding Project Raphael was not a bona fide inquiry. The application judge failed to consider other relevant Ahmad factors in assessing whether the virtual space was sufficiently precise.”

The SCC (9:0) dismissed the appeal. 

Justice Karakatsanis wrote as follows (at paras. 1-2, 4-6, 31-34, 51-52, 57-58, 68, 94-95):

“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.

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.


 

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.

At its core, the entrapment doctrine recognizes that sometimes “the ends do not justify the means” (R. v. Mack, [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).

…I agree with the Court of Appeal for Ontario that the application judge erred by failing to consider factors beyond the number of people affected by the police investigation. On the correct analysis, the police had reasonable suspicion over a sufficiently precise space and the offences the police offered were rationally connected and proportionate to the offence they reasonably suspected was occurring. Mr. Ramelson was therefore not entrapped. 


 

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.

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] 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).

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).

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.


 

To respect the entrapment doctrine’s underlying balance of first principles, then, courts assessing whether an online police investigation was bona fide must pay close attention to the space’s functions and interactivity — that is, to the permeability, interconnectedness, dynamism and other features that make the Internet a distinctive milieu for law enforcement. Even tailored online investigations may represent a broad and profound invasion into peoples’ lives. Given the potential of online investigations to impact many more individuals than an equivalent investigation in a physical space, the nature of those impacts deserve scrutiny. How the police act on the Internet may matter as much or more as where they act.

The question becomes how the test for bona fide inquiries applies in the context of virtual spaces; a question this Court first addressed in Ahmad. As noted, bona fide inquiries must satisfy two criteria before the police may offer an opportunity to commit an offence: the police must have (1) a reasonable suspicion over a sufficiently precise space; and (2) a genuine purpose of investigating and repressing crime (Ahmad, at para. 20). The second criterion was not raised as an issue in this case. The issue, instead, is whether the police had reasonable suspicion over a sufficiently precise space.


 

In Ahmad, the Court listed six factors that may illuminate the assessment of whether the police investigation was properly tailored: (1) the seriousness of the crime in question; (2) the time of day and the number of activities and persons who might be affected; (3) whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location; (4) the level of privacy expected in the area or space; (5) the importance of the virtual space to freedom of expression; and (6) the availability of other, less intrusive investigative techniques (para. 41).

The Ahmad factors are contextual guides; they are neither exhaustive nor mandatory. And while they help in maintaining the entrapment doctrine’s underlying balance between “the state’s interest in investigating crime and the law’s constraint against unwarranted intrusion into individuals’ personal lives” (para. 63), the factors do not themselves require balancing. All six factors will not always be relevant or helpful — an otherwise overbroad police inquiry, for instance, is not saved by the fact that it did not involve profiling or stereotyping. But nor should one factor be allowed to overwhelm the inquiry. Even those convicted of the most serious offences may have been entrapped; conversely, those acting in the most private spaces will not necessarily be entrapped. The analysis is always contextual.



In sum, the Internet’s unique features are inescapable in assessing whether the location is sufficiently precise to ground reasonable suspicion. Online spaces are qualitatively different (Ahmad, at para. 37) — and those differences must be considered.


 

Mr. Ramelson’s final argument is that even if the police had reasonable suspicion that the s. 286.1(2) offence was being committed on the escort subdirectory of Backpage, it did not allow them to offer the opportunity to commit other, more serious offences under ss. 172.1(1)(b) and 172.2(1)(b). In other words, having reasonable suspicion that users were committing offences in respect of those under 18 did not allow them to offer opportunities in respect of those under 16. That “bait-and-switch” exposed Mr. Ramelson to a much longer sentence, for offences that were too remote from the police’s suspicion.  I disagree. While the police indeed lacked reasonable suspicion over the child luring offences, they were nonetheless rationally connected and proportionate to the s. 286.1(2) offence.”