Backpage.com a sufficiently precise location even post-Mills

The Ontario Superior Court, with its decision in R v Sinnappillai, has looked at the potential impact of the Supreme Court of Canada decision about internet luring in R v Mills in an unexpected context: the defence of entrapment.

The accused was charged with internet child luring and of communicating for the purpose of obtaining the sexual services of a person under the age of 18. He had seen an advertisement on Backpage.com from “Kathy” offering sexual services in exchange for money. He communicated by text with the telephone number given in the ad and was told by Kathy that she was only 15 years old, but arranged to meet with her nonetheless. In fact Kathy was a police officer posing as a 15 year old girl and the accused was arrested when he arrived at the appointed hotel room. As discussed in a previous Newsletter, the accused was unsuccessful in his arguments that the text messages which were used in evidence against him had been obtained in breach of his section 8 rights, and so the accused was convicted. However, he brought an application that that conviction should be stayed on the basis that he had been entrapped.

The scheme by which the accused had been arrested was called “Project Raphael”, and a number of prior accused had tried and failed to persuade judges that it constituted entrapment. Briefly, entrapment has two branches, both of which are meant to prevent the police from engaging in what is usually called “random virtue testing”. The second branch of the test – the relevant one on the facts – says that it would be entrapment for police to offer a person about whom they have no individualised suspicion an opportunity to commit a crime, unless they do so as part of a bona fide investigation. An investigation will be bona fide within the meaning of this test if police limit their random offers to people who are in a location where it is reasonably suspected that criminal activity is occurring, provided that that location is defined with sufficient precision. Cases prior to Sinnappillai dealing with Project Raphael had concluded that Backpage.com was a sufficiently-precisely defined location, and that police had a reasonable suspicion that underaged prostitution was happening at that location, and therefore that it constituted a bona fide investigation: that is, that there was no entrapment. The only real issue in Sinnappillai was whether the Supreme Court decision in Mills, which post-dated the other Project Raphael cases, should change that conclusion. The trial judge concluded that it did not.

The judge summarised the result in Mills:

40 In Mills, a police officer posed as a 14 year old female named Leann in an undercover operation aimed at catching internet child lurers. The police created a Facebook account for Leann with a photograph of a young female and information that she resided in St. John's Newfoundland and attended a local high school. The accused, aged 32, contacted Leann through her Facebook page and subsequently exchanged messages with her over a two month period. He pretended to be 23 years old. Eventually, he arranged to meet Leann at a local park. He was arrested on arrival.

Mills itself was about whether the accused had a reasonable expectation of privacy in his Facebook conversation with “Leeann”. It is a complex decision, with one cohort of three judges finding no reasonable expectation of privacy for one set of reasons, another cohort of two reaching the same conclusion for entirely different reasons, the sixth judge finding both of those sets of reasons persuasive, and the seventh judge finding a section 8 violation. Further, the trial judge here commented that “it is not entirely clear to me how any of the concurring reasons in Mills apply to Mr. Sinnappillai's argument that he was entrapped by the police through Project Raphael” (para 57).

The central issue in the accused’s argument relate to Justice Brown’s decision in Mills, which is arguably the majority decision. Justice Brown relied on the fact that Mills was from the start communicating with what he understood to be a child who was a stranger to him: his reasoning was that an adult could not have a reasonable expectation of privacy with a child they did not know. In this case, defence counsel argued, that reasoning did not apply, since the Project Raphael advertisement on Backpage did not indicate that “Kathy” was 15: that information only came out later in the conversation. Relating this back to the test for a bona fide investigation, the argument would relate to whether the area is sufficiently-precisely defined: could it be said that Backpage.com was a location where the offence of seeking underaged sex workers in particular was taking place, so that it was not random virtue testing to offer any visitor to the site the opportunity to engage in that offence.

The judge in Sinnappillai concluded that nothing about that point in Mills changed the entrapment analysis which had taken place in previous Project Raphael cases, which had looked at the issue of whether the advertisement targeted those interested in this particular offence. The judge also concluded that the timing of when an accused became aware that the person at the other end of the text conversation was a minor was not important:

74 Clearly, the prior jurisprudence on Project Raphael has grappled with the argument that the police would not have known, from the outset, which visitor to the escorts section of Backpage.com was looking for an underage prostitute. And they have been alive to the fact that those parties texting "Kathy" would not have known, from the get-go, that she was underage. Uniformly, courts have rejected these factors as undermining the design of the operation.

75 In the March 2016 iteration of Project Raphael, the police once again used a number of markers about the young age of the fictitious escort. They advertised her as "tight", "brand new", "sexy and young" and with a "young friend". Again, the police did everything they could to narrow the pool of targets to those interested in sex with young females.

The judge concluded that nothing in Mills affected the reasoning from previous cases and so rejected the entrapment argument here as well.