R. v. Ramelson 2022 SCC 44 - Case Summary
The Supreme Court of Canada considers entrapment in an online undercover police investigation targeting child predators.
Who
Police conduct an online investigation codenamed “Project Raphael” between 2014-2017. 104 men are arrested for child luring and related offences.
The investigation uses ads posted on a Backpage.com escort directory, advertising sexual services. When individuals respond to the ad, undercover officers message them agreeing to provide sexual services. Officers then “reveal” they are under the age of consent (16). Individuals who still proceed to the designated meeting spot are arrested and charged.
In 2017, Ramelson responds to the ad and arranges a transaction for sexual services at a hotel. The undercover officer indicates they, and their “young friend”, are 14 years of age.
Ramelson arrives at the designated hotel room, and is arrested for child luring, communication to obtain sexual services from a person under 16, and arrangement to commit sexual offences against a person under 16.
What
Entrapment occurs when police improperly provoke, entice, or coerce, an individual into committing a crime that they would have been unlikely to otherwise commit.
Where police have committed entrapment, the law says it is an abuse of process and should result in a stay of proceedings (the charges being “dropped”).
Where
The trial is heard in the Ontario Superior Court of Justice (ONSC). Ramelson is convicted of all charges.
Ramelson applies for the charges to be dropped based on entrapment by police. The trial judge dismisses the application, but later allows the application based on new caselaw from the Supreme Court of Canada (SCC). Ramelson’s charges are dropped by the trial judge.
The Crown appeals to the Court of Appeal for Ontario (ONCA). A unanimous Court reinstates the convictions, and sends the matter back to the trial judge for sentencing.
Ramelson appeals to the SCC. The unanimous Court agrees with the ONCA, and Ramelson’s convictions are upheld.
Why
Entrapment requires that police NOT offer an opportunity to commit an offences UNLESS (a) they have reasonable suspicion that an individual is already engaged in criminal activity OR (b) the opportunity arises in the course of a “bona fide inquiry” (para 29).
Bona fide (good faith) inquiry requires:
(1) reasonably suspect that crime is occurring in a sufficiently precise space (physical or virtual)
(2) Have a genuine purpose of investigating and repressing crime
Even if the above conditions are met, police must NOT go beyond merely providing an opportunity for the commission of the offence. If they induce the offence, it is still entrapment (para 29).
Ramelson’s appeal was focused on the bona fide inquiry requirement of “a sufficiently precise space”.
Physical and virtual environments, such as a website, are very different “places” and require different scrutiny.
R. v. Ahmad, 2020 SCC 11, provides a non-exhaustive list of 6 factors to determine if a “place” is specific enough (see Ramelson at para 41).
The SCC held that the Backpage.com add was a “sufficiently precise place”. At para 93:
Project Raphael carefully tailored the ads in which police provided the opportunity to commit the offences. The broader escort subdirectory was designed to facilitate sex-work related crimes, limiting the targeted audience. Like the user-created ads, the police-created ads indicated extreme youth, including showing the person wearing a t-shirt with the logo of a local high school. Users had to interact with those ads by text message to encounter the police. This was a serious inchoate offence involving juveniles. And it is unclear what alternative methods of investigation the police might have employed — the limitations of a seller-side investigation having already been demonstrated. Although the investigation impacted many individuals, in context, “the purview of the police inquiry [went] no broader than the evidence allow[ed]”.
The Gist
Entrapment is not a traditional “defence” that must arise during trial. It is a type of abuse of process application. If successful, the remedy is a stay of proceedings (para 32).
Police are given plenty of room and tools to conduct investigations. Entrapment is not about “letting bad guys get away”, it is a check and balance to control police power (para 31):
Not allow the police to improperly intrude on privacy
Not allow the police to randomly “virtue test” the public
Not allow police to break the law to get others to break the law
Not waste public resources on any of the above
[Entrapment] 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. (para 34)
The SCC applies the Ramelson reasoning to the companion cases of other individuals arrested in Project Raphael. Their convictions are upheld: