R. v. Ramelson, 2022 SCC 44

WHAT YOU NEED TO KNOW

 - Entrapment can occur in two ways:

(1)    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 pursuant to a bona fide inquiry;

(2)    Although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

- The bona fide inquiry requires that police (1) reasonably suspect that crime is occurring in a sufficiently precise space and (2) have a genuine purpose of investigating and repressing crime.

- The space where police reasonably suspect crime is occurring must therefore be “carefully delineate[d]” and “defined with sufficient precision”, to “ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows”. This is all the more critical in virtual spaces, which, lacking the constraints inherent in physical spaces, can be extremely vast in reach. While true of all spaces police may investigate, it is particularly important that online spaces are “defined narrowly and with precision”.

- In this case, a particular type of ad on a particular subdirectory of a website was a “sufficiently precise space”.

BACKGROUND

The appellant was one of the many arrested as part of “Project Raphael”, an online undercover investigation targeting child luring and related offences involving children. Police posted ads on an escort subdirectory of “Backpage.com”. The appellant responded by text message to such an ad. The undercover officer, posing as “Michelle”, agreed to a sexual transaction with the appellant. Following their agreement, “Michelle” revealed she and her friend were 14 years old. When the appellant showed up at the hotel to meet with “Michelle” and her friend, he was arrested with child luring, communicating to obtain sexual services from a minor and arrangement to commit sexual offences against a person under 16. The appellant was convicted of all three offences at trial but applied to have the proceedings stayed on the basis of entrapment.

ISSUE ON APPEAL

The application judge determined, following the release of Ahmad, that the appellant had been entrapped because the virtual space was “too broad” to support police’s reasonable suspicion. The Court of Appeal allowed the Crown’s appeal and set aside the stay of proceedings. Mr. Ramelson now appeals to the Supreme Court of Canada.

The main issue on appeal is how the bona fide inquiry branch of the entrapment doctrine should be applied in the context of online spaces (i.e. internet webpages).

ENTRAPMENT DOCTRINE

Generally

Entrapment can occur in two ways:

(1)    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 pursuant to a bona fide inquiry;

(2)    Although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

This doctrine applies both to physical and online/virtual spaces.

This doctrine recognizes that sometimes, police involvement in the commission of a crime can bring the administration of justice into disrepute. When police offer opportunities to commit crimes without reasonable suspicion, or induce the commission of crimes, they transgress the public’s expectations of appropriate police conduct: that the police will not intrude on privacy, that they will not randomly test the public’s propensity to commit crimes, let alone manufacture them; and that they will not use public resources to achieve any of the above.

The entrapment doctrine strives to balance competing interests: the state’s legitimate interest in investigating serious crimes and the public’s interest in protecting privacy interests and personal freedom from state overreach.

The remedy for entrapment is a stay of proceedings.

Bona fide inquiry and online spaces

The bona fide inquiry requires that police (1) reasonably suspect that crime is occurring in a sufficiently precise space and (2) have a genuine purpose of investigating and repressing crime: see R. v. Ahmad, 2020 SCC 11 at para. 20.

To satisfy these criteria, police are entitled to present any person associated with the “space” with the opportunity to commit the particular offence – even without individualized suspicion in the person investigated.

Online spaces, in short, differ from physical spaces in at least three ways: the Internet, being informational rather than geographical, sheds many of the physical world’s limitations in terms of scale and functions; people behave differently when online; and virtual spaces raise unique rights concerns.

So, how then, should the test for “bona fide inquiries” be applied in the context of online spaces?

The space where police reasonably suspect crime is occurring must therefore be “carefully delineate[d]” and “defined with sufficient precision”, to “ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows”. This is all the more critical in virtual spaces, which, lacking the constraints inherent in physical spaces, can be extremely vast in reach. While true of all spaces police may investigate, it is particularly important that online spaces are “defined narrowly and with precision”.

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. These factors, however, are neither exhaustive nor mandatory. All six factors will not always be relevant or helpful in a given case.

The Court in Ahmad also made clear that the reasonable suspicion analysis turns not only on a space’s physical characteristics, but on whether the police “have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows”. The space, the crimes and the nature of the investigation all influence the acceptable purview of the police’s inquiry.

The entire context, in short, determines whether the space of an investigation was sufficiently precise.

Scrutiny into whether a space is sufficiently precise is crucial when police investigate broader spaces like a website.

First, in permeable and interactive spaces, the “space” of an inquiry will not necessarily be intuitive. The possibility of creating subspaces, such as postings within a broader website, suggests that the ways subspaces are embedded in broader online spaces may be critical for understanding how the space of an inquiry was tethered to reasonable suspicion.

Second, whether an online space was sufficiently precise may turn as much on the space’s functions and interactivity as it does on its parameters. A space’s functions may require that police further tailor the location of an online inquiry. They may require the police to focus on more carefully delineated spaces and target their opportunities to particular subspaces or to particular ways in which users engage with the virtual space. They may also call for attention to how the space facilitates or inhibits data collection. The Ahmad factors may assist in this determination. Entire websites will rarely be sufficiently particularized, as multi-functional virtual spaces will usually be too broad to support reasonable suspicion. But in some virtual spaces, the criminality may be so pervasive that it supports a reasonable suspicion over the entire area. In sum, the internet’s unique features are inescapable in assessing whether the location is sufficiently precise to ground reasonable suspicion.

APPLICATION TO THIS CASE

The Court concluded that the appellant was not entrapped. The police had reasonable suspicion over a space defined with sufficient precision. The investigation did not extend to the enter website; rather, the “space” was the particular type of ads within the York Region escort subdirectory of a given website that emphasized the sex workers’ extreme youth. Second, the offences offered by the police were rationally connected and proportionate to the offence they reasonably suspected was occurring in that space.

Read the full decision here.