R. v. Jaffer

The appellant, Muhammad Abbas Jaffer, was 1 of 104 people arrested over the course of “Project Raphael”, an online investigation of the York Regional Police which targeted the buyer side of the juvenile sex work market. His appeal before this Court was heard together with three others, each concerning the doctrine of entrapment in the context of an online police investigation. The companion cases, with reasons released concurrently, are R. v. Ramelson, 2022 SCC 44, [2022] 3 S.C.R. 452, R. v. Haniffa, 2022 SCC 46, [2022] 3 R.C.S. 504, and R. v. Dare, 2022 SCC 47, [2022] 3 R.C.S. 510. Like two of the other three appellants, Mr. Jaffer’s appeal is from an order of the Court of Appeal for Ontario dismissing his conviction appeal and his appeal from the application judge’s dismissal of his entrapment application. His appeal raises two issues: (1) whether the police had reasonable suspicion over him personally, or acted pursuant to a bona fide inquiry when they presented him with the opportunity to commit the offences (thus satisfying the opportunity-based branch of the entrapment doctrine); and (2) whether he was induced.

On October 24, 2014, while browsing the escort subdirectory of Backpage.com, Mr. Jaffer messaged “Kathy”, aged 18, who was described as a “Tight Brand New girl” who is “sexy and young with a tight body” (A.R., vol. II, at pp. 13 and 23). The posting listed a phone number and an email address titled “[email protected]” (pp. 13 and 23). Communicating by text with Mr. Jaffer, the undercover officer (UC) eventually revealed to him that “she” was 15 years old:

[20:56 – UC]: . . . how old r u

[20:57 – Jaffer]: 22

. . .

[21:00 – UC]: . . . well im not quite 18 yet r u ok with that

. . .

[21:00 – Jaffer]: Yeah I’m ok . . . but how much younger are u? 17?

[21:01 – UC]: im turning 16 on sunday but I look 18

[21:02 – Jaffer]: Um . . . ok but how do I know you’re not a cop?

[21:02 – Jaffer]: I really don’t want to get in trouble ya know

[21:03 – UC]: and i definitely don’t want trouble

[21:03 – Jaffer]: Ok can I ask why you’re escorting if it’s ok with u? Usually people your age don’t know about this industry

[21:04 – Jaffer]: Just curios

[21:04 – UC]: my friend got me into it . . . i just need the money i dont do this all the time its my second time honestly i need the money :)

[21:05 – Jaffer]: I see . . . I like that you’re honest. I can trust u then :). So I’ll come then but please please let’s keep this between ourselves

(A.R., vol. II, at p. 28)

When Mr. Jaffer arrived at the designated hotel room, he was arrested. He was charged and tried with 2 offences: telecommunicating with a person he believed to be under the age of 18 contrary to s. 172.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (child luring under 18), and communicating to obtain for consideration the sexual services of a person under 18 contrary to s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a minor).

A jury convicted him on both counts, yet the sentencing judge stayed his conviction on s. 212(4) pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729. Mr. Jaffer then brought an application for a stay of proceedings, arguing that he had been entrapped.

The application judge dismissed Mr. Jaffer’s application. She concluded that Project Raphael was a bona fide inquiry: Inspector Truong — the officer who designed Project Raphael — was well-experienced in sex work-related offences and gave evidence that Backpage was “continually associated” with juvenile sex work; the offences were “challenging to investigate”; and the activity on Backpage “could readily be identified to be within specific geographical areas” (A.R., vol. I, at pp. 27‑28). The police, further, had reasonable suspicion that Mr. Jaffer was engaged in criminal activity when they made the offer.

The Court of Appeal dismissed Mr. Jaffer’s arguments on opportunity‑based entrapment for its reasons given in R. v. Ramelson, 2021 ONCA 328, 155 O.R. (3d) 481 (see 2021 ONCA 325, 155 O.R. (3d) 535, at paras. 15-16). And it dismissed his further argument that he had been induced, citing the application judge’s finding that Mr. Jaffer “was determined to purchase sexual services and gave specific consideration to the information as to the age of the purveyor before he acted on his choices” (para. 22).

Mr. Jaffer adopts the arguments raised in the companion appeals as they concern opportunity-based entrapment, adding that the police lacked reasonable suspicion over him personally. I have addressed these points in my reasons in Ramelson, where I concluded that Project Raphael was a bona fide inquiry. For the reasons given in that case, I would not accede to these grounds of appeal.

Mr. Jaffer’s second argument is that the courts below erred in failing to take his personal circumstances into account when assessing whether he was induced. Mr. Jaffer acknowledges that the police could not have known that he was living with undiagnosed Asperger’s Syndrome, but submits that such personal circumstances are relevant and ought to be considered in the analysis of inducement-based entrapment. Mr. Jaffer explains that the common symptoms of his condition — in particular, a difficulty socializing and rigid rule compliance — put him at a heightened risk for being induced. In addition, that condition, and an earlier interaction he had with police, where he had agreed to provide information about a particular sex worker and her pimp, lent credence to his explanation that he had planned to meet “Kathy” only to gather information and alert the authorities.

The inducement branch of the entrapment doctrine provides that even if the police have reasonable suspicion over an individual or act under a bona fide inquiry, they cannot “emplo[y] means which go further than providing an opportunity” to commit a crime (R. v. Mack, [1988] 2 S.C.R. 903, at p. 966). That assessment may include looking at “whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime” or whether the police “appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction”, among other factors (p. 966). But the assessment is objective and focuses on the police’s conduct, not on that conduct’s effect “on the accused’s state of mind” (p. 965).

In my view, the issue of whether that framework ought to be revised is better left for another case. Whatever the merit of Mr. Jaffer’s legal arguments — a point I do not decide here — the jury, in full knowledge of Mr. Jaffer’s circumstances, rejected his evidence that he had intended to visit the hotel room solely to gather information. In convicting him, the jury did not have a reasonable doubt about the purpose for which he arranged the meeting. Echoing that conclusion, the application judge found that Mr. Jaffer had been intent on a sexual transaction, even after learning the sex worker’s age. No error in those findings has been demonstrated. Nor has Mr. Jaffer pointed to any indication that the police “employed means which go further than providing an opportunity” to commit the offences (Mack, at p. 966). Even if Mr. Jaffer’s subjective circumstances were considered under the legal framework for inducement, then, they could not affect the result. I would not accede to this ground of appeal.

For these reasons, Mr. Jaffer was not entrapped. I would dismiss the appeal.