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Focus: Ruling explores entrapment in the digital realm

Focus On: Criminal Law
A recent Ontario Superior Court of Justice case that alleged entrapment by police in an Internet chat room highlights important aspects of the law in the digital realm.

In R. v. Ghotra, 2016 ONSC 5675, Akash Ghotra and his counsel Alan Gold and Melanie Webb argued an undercover officer from Peel Regional Police entrapped Ghotra when she posed as a 14-year-old girl named Mia in an online chatroom.  

After online conversations between the two, Ghotra went to an apartment building for a meeting, where he was arrested for Internet luring and subsequently found guilty. However, Ghotra argued he’d been “entrapped when the officer provided an opportunity to commit the offence by telling him she was 14 years old,” said the ruling by Justice Bruce Durno. 

In the ruling, Durno indicated Ghotra “took the lead” when it came to online discussions with Mia about her age and about sexual matters. Durno said the case was not an example of random virtue testing, and he chose not to stay the charge. 

Michael Lacy, partner at Brauti Thorning Zibarras LLP and vice president of the Criminal Lawyers’ Association, says the challenge for Durno was determining if “the accused controlled the circumstances of the offence or was it the officers who in fact were creating an opportunity.” 

Says Lacy, “I think the law of entrapment has to be re-envisioned in light of the ways in which police utilize technology to, they would say, investigate crimes; I would say, in some cases, create the circumstances to allow people to commit offences.” 

He says he expects the case will likely be appealed to the Ontario Court of Appeal.

“With the evolution of technology and anonymity through electronic messaging, the common law rules related to entrapment do not seamlessly fit into the new modern reality,” says Lacy. 

“The more proactive the police become in inviting people to commit crimes rather than simply uncovering crimes through surreptitious surveillance on the Internet, the more likely that courts will see it as a problem.”

In the ruling, Durno stated that he found “criminal activity was reasonably suspected in the chat room.” 

He cited R. v. Barnes, 1991, noting that “where officers have a reasonable suspicion that the physical location with which the person is associated is a place where the particular criminal activity is likely occurring, they are not engaged in random virtue testing.” 

Durno added, “The internet chat room was a place where internet luring was likely occurring,” later noting that “police must be permitted leeway in their investigations depending on the type of offence being investigated. 

“The nature of the internet makes that leeway essential.” 

Daniel Brown, a criminal defence lawyer in Toronto, says online investigations where police pose as someone underage to investigate digital crimes against children “is a concept that we’re seeing a lot more of.” 

“There are cases that are before the court right now where lawyers are raising entrapment arguments in relation to this, and while it’s not identical to the fact scenario [in Ghotra], it’s just another example of the police using . . . the digital world as a way to catch people who were previously difficult to detect through traditional investigations,” he says. 

With prostitution moving indoor and online, Brown says, “This is a way that the police can now use to catch people who are perhaps pursuing underage sexual encounters.”

He adds, “They don’t have wiretaps, they don’t have search warrants, all they need is a cellphone and an online account and they can attract or lure potentially hundreds of men who are engaging in this behaviour.” 

Brown says to expect more police sting operations.

“These types of investigations are going to be far more common in the future because they’re so inexpensive to set up and, apparently, they’re effective and legitimate,” he says.

Edmond Brown, a criminal defence lawyer in Brampton, Ont. and president of the Peel Criminal Lawyers Association, says that, in his opinion, police handled the case appropriately.

“. . . This is a legitimate investigative technique on the part of the police to deter people from getting involved with underage children and teenagers,” he says.

A spokesman for the Ministry for the Attorney General said Ghotra will return to the Ontario Court of Justice in March 2017.

Scott Cowan, a criminal defence lawyer, said, “If while posing as a young girl the police made invitations to meet — or turned the conversation sexual — the result may have been different.

“But Justice Durno was not willing to characterize a mere introduction as an opportunity to commit a luring offence, even in the context of a dating chat room,” said Cowan. “The case does remind us that we don’t want to risk punishing curiosity when the only victim was the one the police created. A police ruse can only go so far without running afoul of entrapment principles.” 

Gold said he could not comment on the ruling.

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