The Supreme Court of Canada has ruled that online police investigations targeting adults who want to have sex with children do not constitute police confinement.
In a rare 9-0 ruling, the top court rejected the appeals of four men convicted of child sex offenses: Ontario residents Corey Daniel Ramelson, Muhammad Abbas Jaffer, Erhard Haniffa and Temitope Dare.
An investigation by York Regional Police called Project Raphael ran from 2014 to 2017. It involved undercover police officers posing as teenage escorts on a website they suspected of being a hub for child sexual exploitation.
Undercover officers posted ads offering the opportunity to have sex with an 18-year-old girl. When the fictional girl agreed to have sex with someone, the undercover officer posing as the girl would reveal that she was actually as young as 14.
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 ranged in age from 18 to 71. Many of the men were married and they came from a range of professional backgrounds. Almost all of the men were first-time offenders.
This investigation was the first in Ontario to target sex offenders by creating false ads designed to lure offenders. The question at the heart of the case was whether this type of investigation can be described as confinement.
Entrapment is when the state or the police get someone to commit a crime they would not otherwise have committed.
The ruling said that to be considered a bona fide investigation, the police must have “reasonable suspicion over a sufficiently precise space” that criminal activity is taking place and that the police action be taken in an effort to “suppress crime. “
The decision said careful consideration is important because online surveys like Project Raphael are broad and can lead to a “deep invasion of people’s lives.”
“Given the potential that online surveys have to affect many more individuals than an equivalent survey in a physical space, the nature of those impacts merits scrutiny,” the ruling said. “How the police act on the Internet can be as important or more important than where they act.”
The ruling said York Regional Police based their investigation on a similar probe in British Columbia which involved undercover police placing ads on Craigslist.
York Regional Police Inspector Thai Truong told the court that investigations like the one in BC were used as inspiration because “unless you’re really looking for [child exploitation]you’re not going to find it.”
The ruling says that through investigations and interviews with dozens of underage sex workers, York Regional Police learned there was “a pervasive problem stemming from a particular type of online ad” on a subdirectory of Backpage.com and decided to target that website.
The ruling said the website appeared to be “an active hub for crime” and that specific postings advertising the youngest sex workers appeared there daily.
The ads police placed on the site were designed to mimic ads already on the site, borrowing common terms such as “tough”, “young”, “new” or “fresh” when describing the children who being offered, the court said.
“This, in my view, amply demonstrated the reasonable possibility that the offense took place in the room. Indeed, it suggested that the offense took place regularly,” Judge Andromache Karakatsanis said in the court’s ruling.
“Whose [York Regional Police] had to address offenses related to youth sex work, ads in York Region’s escort subdirectory on Backpage were places for the youngest sex workers to do so.”
The court decided that Project Raphael was a genuine police inquiry 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 sentences for the other three offenders following the precedent set in Ramelson. Decisions in all four cases were released Thursday.
In their submissions to the court, Ramelson’s attorney said that while their client “did not pass the test of virtue,” the police “were not entitled to test the applicant in the way they did.”
The Canadian Civil Liberties Association, which intervened in the case, argued that the case raises serious privacy concerns for Canadians targeted by the state.
It said there was evidence to suggest children were being offered for abuse on more popular platforms like Yahoo and Facebook, and that broad investigations like Truong’s could ensnare innocent Canadians and compromise their personal information.
“Investigations that have no pre-identified target pose the greatest risk of becoming roaming and unfocused inquisitions that compromise the privacy of online users,” CCLA said.
In the court’s ruling, Judge Karakatsanis said police must innovate if they are to match the “ingenuity” of criminals.
“These realities entitle the police to ‘considerable leeway’ in their investigation … such that a finding of confinement should only be issued in the ‘clearest cases,'” she said.