The Supreme Court of Canada has ruled that online police investigations targeting adults seeking sex with children do not constitute entrapment.
In a rare 9-0 decision, the top court dismissed appeals from four men convicted of child sex offences: Ontario residents Corey Daniel Ramelson, Muhammad Abbas Jaffer, Erhard Haniffa and Temitope Dare.
A York Regional Police investigation called Project Raphael ran from 2014 to 2017. It involved undercover cops posing as teenage escorts on a website they suspected was a hub for sexual exploitation of children.
Undercover agents posted ads offering the possibility of having sex with an 18-year-old girl. Once the fictional girl agreed to have sex with an individual, the undercover agent posing as the girl would then reveal that she was in fact only 14 years old.
Those who agreed to proceed with the transaction were directed to a hotel room. All 104 men who showed up at the hotel room were arrested.
The men charged were between the ages of 18 and 71. Many of them were married and came from various professional backgrounds. Almost all of the men were first-time offenders.
This investigation was the first in Ontario to target sex offenders by setting up false advertisements intended to lure offenders. The question at the heart of the case was whether this type of investigation constituted entrapment.
Entrapment occurs when the state or the police incite someone to commit a crime that they would not otherwise have committed.
The ruling said that to be considered a bona fide investigation, the police must have “reasonable suspicion in a sufficiently precise space” that criminal offenses are in progress and that police actions are being taken with the aim of “suppressing the crime”.
The ruling said careful consideration is important because online investigations like Project Raphael are vast and could lead to a “deep invasion into people’s lives”.
“Given that online investigations may impact many more individuals than an equivalent investigation in a physical space, the nature of those impacts merit consideration,” the ruling said. “How the police act on the internet may matter as much, if not more, than where they act.”
According to the ruling, York Regional Police based their investigation on a similar probe in British Columbia which involved plainclothes police placing ads on Craigslist.
York Regional Police Inspector Thai Truong told the court that investigations like the one in British Columbia have been used as inspiration because “unless you’re really looking [child exploitation]you’re not going to find it.”
The decision says that through investigations and interviews with dozens of underage sex workers, York Regional Police learned there was “a pervasive problem resulting from a particular type of online advertising” on a sub -Backpage.com directory and decided to target this website.
The ruling said the website appeared to be “an active crime hub” and that specific posts advertising younger sex workers appeared on it daily.
Advertisements placed by the police on the website were designed to mimic advertisements already on the site by borrowing common terms such as “tight”, “young”, “new” or “fresh” when describing children offered, the court said.
“This, in my view, amply showed the reasonable possibility that the offense was occurring in outer space. Indeed, it suggested that the offense was occurring on a regular basis,” Judge Andromache Karakatsanis said in the court ruling.
“If the [York Regional Police] were to deal with offenses related to child sex work, the advertisements in Backpage’s York Region escort sub-directory for younger sex workers were places to do so.
The court ruled that Project Raphael was a genuine police investigation because of the substantial evidence pointing to the website and because the offenses were “rationally connected and proportionate to one another”.
The court made its decision using Ramelson as a test case, with the verdicts for the other three offenders following the precedent set in Ramelson. Decisions in all four cases were released Thursday.
In his court submission, Ramelson’s lawyer said that although their client ‘failed the test of virtue’, the police ‘did not have the right to test the plaintiff in the way they did’ .
The Canadian Civil Liberties Association, which intervened in the case, argued that the case raises serious privacy concerns about Canadians targeted by the state.
He said there was evidence to suggest children were being offered for abuse on more popular platforms such as Yahoo and Facebook and that broad investigations like Truong’s could trap innocent Canadians, compromising their personal information.
“Investigations that do not have a pre-identified target run the greatest risk of becoming itinerant, unfocused investigations that compromise the privacy of users online,” the ACLC said.
In the court ruling, Judge Karakatsanis said police must innovate if they are to match the “ingenuity” of criminals.
“These realities give the police ‘considerable leeway’ in their investigations…so that a finding of entrapment should only be made in the ‘clearest of cases,'” she said.
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