Did I Just Get Entrapped?
R v Ramelson: Canada’s Recent Development to Virtual Entrapment Law
By Andre Nguyen, Summer Student
Introduction
If you were anything like me growing up, you loved watching “To Catch a Predator”, an American reality show “devoted to impersonating underage people (generally ages 12-15) and detaining male adults who contacted them over the Internet for sexual liaisons.”[1] However, as a legal professional, you begin to wonder about the legalities surrounding such a show and such an investigation. In the Canadian legal context, similar investigations conducted by police officers are permissible as long as it does not rise to the level of entrapment. As the Canadian criminal justice system continues to grapple with the difficulties of adapting the law to the new issues that arise with the use of technology, entrapment and online investigations just received a precedent-setting case. R v Ramelson has modified the bona fide inquiry prong of the entrapment doctrine to consider and adapt with technological advancements of the 21st century.
Background: The Entrapment Doctrine
The entrapment doctrine was first established in the case R v Mack where the Supreme Court of Canada set out the two branches of entrapment, either of which are sufficient for a claim of entrapment and a stay of proceedings to be found.[2] The first branch of entrapment is called opportunity-based entrapment; this branch allows police to provide an opportunity to commit a crime as long as police either have a reasonable suspicion over a specific person or they are acting pursuant to a bona fide inquiry.[3] To be acting pursuant to a bona fide inquiry, police must have reasonable suspicion over a specific location and must have a genuine purpose of investigating and repressing crime.[4] The second branch is called inducement-based entrapment and occurs when the authorities go beyond providing an opportunity and induce the commission of an offence, regardless of whether or not they have reasonable suspicion over a specific person or are acting pursuant bona fide inquiry.[5]
[1] Online: <https://www.imdb.com/title/tt3694654/>
[2] R v Mack, [1988] CanLII 24 (SCC) at 959 and 967-968 [Mack].
[4] R v Ahmad, 2020 SCC 11 at para 20.
Figure 1: the entrapment doctrine in a graph. The green check marks signify what the police are allowed to do/need to have to avoid entrapping people. The red x signifies when police may be found to be entrapping people in investigations.
Recent Development to Canadian Law: R v Ramelson
R v Ramelson deals with a police investigation that was conducted over the course of three years involving a website called Backpage.com. The York Regional police discovered that the average age sex workers began selling sex on Backpage.com was 14.8 years old and from this, Project Raphael was created to investigate the escorts subsection of Backpage.com.[6] Project Raphael created ads modelled after existing ones by underage sex workers and a phone number was listed for potential offenders to reach out to in order to arrange a transaction; once a transaction was agreed to, the undercover officers would reveal that the escort was underage. If people still decided to proceed with the encounter and meet the with the sex worker that they believed to be underage, the police would then arrest them and charge them.[7] Over the course of the three-year project, 104 persons were arrested. Mr. Corey Daniel Ramelson was one of them and he was charged with three offences: child luring under 16, communicating to obtain sexual services from a minor, and arrangement to commit sexual offences against
[6] R v Ramelson, 2022 SCC 44 at para 10 [Ramelson].
[7] Ibid at para 12.
[8] Ibid at para 17; Criminal Code, RSC 1985, c C-46, s 172.1(1)(b), 286.1(2), 172.2(1)(b).
At trial, after Mr. Ramelson was charged and convicted on all three counts, he applied for a stay of proceedings on the grounds that he was entrapped.[9] After the initial application was dismissed, the Supreme Court of Canada released R v Ahmad which addressed entrapment in virtual spaces, so the trial judge, Justice de Sa, invited the parties back to make submissions. The trial judge ultimately concluded that Mr. Ramelson was entrapped because the space where the investigation was conducted was too broad a space to support reasonable suspicion.[10] The Crown appealed and the Ontario Court of Appeal reversed Justice de Sa’s decision, allowing the appeal, and setting aside his order. Justice Juriansz explained that Justice de Sa erred in assessing whether the virtual space was sufficiently precise.[11] Ahmad provided six factors to consider in determining whether a police investigation was sufficiently tailored to the virtual space it was investigating in the course of a bona fide inquiry.[12] In reviewing the Ahmad factors, the Ontario Court of Appeal decided that Project Raphael was a valid bona fide inquiry, meaning Mr. Ramelson was not entrapped.
At the Supreme Court of Canada, the Court unanimously decided that Project Raphael was a valid bona fide inquiry. In addition to applying the Ahmad factors, the Supreme Court of Canada emphasized the need to focus on a space’s function and interactivity when assessing whether an investigation was properly tailored to a virtual space.[13] Given the vast reach of virtual spaces, the Court recognizes that a police investigation conducted on a virtual space requires the space to be defined with greater sufficient precision. In addition to and in conjunction with Ahmad’s six factors, the function and interactivity requirements ensure that police investigations in virtual spaces are sufficiently precise as is necessary to properly ground reasonable suspicion.[14] In its entire context, with all the considerations from Ahmad and the new considerations of function and interactivity introduced, Project Raphael was found to be a valid bona fide inquiry, thus meaning Mr. Ramelson was not entrapped.
Conclusion
The growth of technology has augmented any previously existing privacy concerns when it comes to police investigations. Police investigations in a virtual space have the potential to effect an exponential amount of people, the analogy Ramelson uses is that “a single Tweet may attract more traffic than an entire mall.”[15] The old entrapment doctrine was simply not equipped to properly deal with the privacy concerns augmented by the internet. This decision by the Supreme Court of Canada correctly and appropriately creates the new requirement that police investigations similar to Project Raphael must be more narrowly tailored than previously required. If the police want to conduct a valid bona fide inquiry on a virtual space, they must necessarily ensure that their investigation is so tailored so that it is able to support a reasonable suspicion over a sufficently defined space, and not rise to the level of entrapment.
[9] Ramelson, supra note 6 at paras 17-19
[11] See generally R v Ramelson, 2021 ONCA 328; Ramelson, supra note 6 at para 25.
[12] Ahmad, supra note 4 para 41.