The Supreme Court of Canada has ruled that online police investigations targeting adults looking to have sex with children do not constitute police entrapment.
In a rare 9-0 ruling, the top court dismissed the appeals of four men convicted of child sex offences: 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 teenaged escorts on a website they suspected of being a hub for the sexual exploitation of children.
Undercover officers posted ads offering the opportunity to have sex with an 18-year-old girl. Once the fictitious girl agreed to have sex with an individual, the undercover officer posing as the girl would then reveal that she was actually as young as 14.
Those who agreed to continue 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. Nearly all of the men were first-time offenders.
This investigation was the first in Ontario to target sex offenders by setting up fake ads meant to lure offenders. The issue at the heart of the case was whether this type of investigation qualifies as entrapment.
Entrapment is when the state or police induce someone to commit a crime they would not otherwise have committed.
The ruling said that to be considered a bona fide investigation, police must have "reasonable suspicion over a sufficiently precise space" that criminal offences are taking place and police actions are being taken in an effort to "repress crime."
The ruling said careful consideration is important because online investigations like Project Raphael are broad and could lead to a "profound invasion into people's lives."
"Given the potential of online investigations to impact many more individuals than an equivalent investigation in a physical space, the nature of those impacts deserve scrutiny," the ruling said. "How the police act on the Internet may matter as much or more as where they act."
The ruling said that 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 B.C. were used as inspiration because "unless you really look for [child exploitation], you're not going to find it."
The ruling says that through investigations and interviews with dozens of underage sex workers, the York Regional Police learned that 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 that the website appeared to be "an active hub of crime" and that specific posts advertising the youngest sex workers appeared there daily.
The ads police placed on the website were designed to emulate ads already on the site by borrowing common terms such as "tight," "young," "new" or "fresh" when describing the children being offered, the court said.
"This, in my view, amply showed the reasonable possibility that the offence was occurring in the space. Indeed, it suggested that the offence was occurring regularly," Justice Andromache Karakatsanis said in the court's decision.
"If the [York Regional Police] were to address offences related to juvenile sex work, ads in the York Region escort subdirectory of Backpage for the youngest sex workers were places 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 offences were "rationally connected and proportionate to each other."
The court made its decision using Ramelson as the test case, with the verdicts for the other three offenders following on the precedent set in Ramelson. Decisions in all four cases were released Thursday.
In their submission to the court, Ramelson's lawyer said that while their client "failed the virtue test," police "were not entitled to test the applicant in the manner that they did."
The Canadian Civil Liberties Association, which intervened in the case, argued that the case raises serious privacy concerns about Canadians being targeted by the state.
It said there was evidence to suggest children were being offered for abuse on more popular platforms such as Yahoo and Facebook and that broad investigations like Truong's could ensnare innocent Canadians, compromising their personal information.
"Investigations that have no pre-identified target present the greatest risk of becoming roaming and unfocused inquisitions that compromise the privacy of online users," the CCLA said.
In the court's ruling, Justice Karakatsanis said that police must innovate if they are to match the "ingenuity" of criminals.
"These realities entitle the police to 'considerable latitude' in their investigations … such that a finding of entrapment should issue only in the 'clearest of cases,'" she said.