Ontario Court of Appeal rejects entrapment argument in four cases arising from sting operation

Police sting operations targeting sex work clients are harmful to sex workers, says advocate

Ontario Court of Appeal rejects entrapment argument in four cases arising from sting operation

Four men arrested and charged in an undercover police operation targeting purchasers of child sex work were not entrapped by police, said the Ontario Court of Appeal, in a series of decisions released Monday.

The Court heard together four appeals: one brought by the Crown – R. v. Ramelson – and three by the defence – R. v. Dare, R. v. Haniffa and R. v. Jaffer. Each arose from the York Regional Police’s Project Raphael and were united under the entrapment issue.

The appeals were the first opportunity the Court of Appeal has had to apply the SCC’s 2020 entrapment case, R. v. Ahmad, to a context aside from a dial-a-dope operation, says Richard Litkowski, who acted for the respondent in Ramelson.

Because the Court of Appeal overturned the stay of proceedings entered by the trial judge, Ramelson has an automatic right to appeal to the Supreme Court of Canada.  

“The case will now go to the Supreme Court of Canada for its consideration of how Ahmad applies to virtual spaces like online websites,” says Litkowski.

The sting operation, which began in 2014, was intended to combat child sex trafficking. With the objective of reducing demand, the police targeted buyers. They posted fake advertisements on the escorts section of Backpage, a classified advertising website. In their phony profiles featuring photos of female police officers, the police first advertised as an 18-year-old; Backpage’s minimum age. When prospective clients responded to the ads via text message, posing as the escort, the police would respond that they were younger than 16. Customers who remained interested were invited to a hotel room, where they were arrested and charged.

The appellants in the three defence appeals and the respondent in the Crown appeal all argued they had been entrapped and made a united argument on the issue. Ontario Court of Appeal Justices Russell Juriansz, Michael Tulloch and David Paciocco rejected the entrapment argument, allowing the Crown’s appeal and dismissing the three brought by the defence.

In R. v. Ahmad, the Supreme Court’s majority found that “state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space.” Virtual spaces, such as social media, are easy to access, wide-ranging and citizens are increasingly spending their personal lives connected to them. It is much easier for police investigators to inconspicuously embed themselves in these virtual spaces and the ability to provide so many more people opportunities to break the law, heightens the risk they will target innocent people.

“Individuals must be able to enjoy that privacy free from state intrusion, subject only to the police meeting an objective and reviewable standard allowing them to intrude,” said the Court.

In R. v. Ramelson, the trial judge had decided, in light of Ahmad, that the virtual space being investigated was too broad for the police to conduct this style of operation, where random people are offered the services of a child sex worker, says Litkowski.

“The overwhelming majority of activity on the website was from people who were not seeking the services of underage escorts. And further, the police did not otherwise have a reasonable suspicion that the person in question was looking for an underage escort.”

“On appeal… I argued that the judge properly understood and applied the clarifications provided by the SCC in Ahmad on how to approach entrapment arguments where the police investigations are occurring in virtual space,” he says. “The Court of Appeal disagreed and held that the virtual space was sufficiently precise and narrow to permit random virtue testing.”

Sandra Wesley is director of Stella, an organization representing the interests and rights of sex workers and providing information to the public on sex work. Stella is among the coalition of sex work law reform advocates which recently filed Charter challenge of sex work prohibitions.

Though done ostensibly to protect trafficked or child sex workers, the laws on the books, as well as operations such as internet stings, are harmful to sex workers of any age, says Wesley.

“Those types of operations create panic and terror for sex workers and for clients, and contribute to unsafe working conditions,” she says.

If clients always believe they may be speaking to a police officer, they do not divulge any information about themselves or explicitly negotiate or clarify services, says Wesley. Sex workers then cannot screen clients, nor align expectations in a contract until they physically meet, which is dangerous, she says.

“In our experience, a lot of those types of police operations, beyond being entrapment for potential clients, are also meant to be used as propaganda,” says Wesley.

Through media reports, the public will hear that a number of people were arrested for trying to buy sex from underage girls and will assume there were actually underage girls who were rescued in the process, she says.

“It reinforces this big mythology that society is believing these days, that this is a massive problem that's happening on every street corner. When it's mostly a sort of moral panic engineered by anti-sex-work activists who just want to maintain support for criminalization of sex work.”

Related stories

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

Invoking notwithstanding clause, Ford Government passes amendments to Election Finances Act

International lawyer and professor Payam Akhavan wins Law Society’s 2021 Human Rights Award

New national study will evaluate well-being in legal profession

Taxi company’s insurer not liable for accident victim’s statutory accident benefits

Human Rights Tribunal extended protected ground of citizenship to include permanent residency: Court

Second ruling on whether a COVID-related layoff is constructive dismissal produces opposite result

Most Read Articles

Second ruling on whether a COVID-related layoff is constructive dismissal produces opposite result

Ontario Court of Appeal split over sobriety check of driver which occurred on private driveway

Human rights commission urges province’s justice sector to keep prison population low amid COVID-19

Queen’s Law professor Cherie Metcalf receives grants for climate change research