Reasons for Judgment — Karakatsanis J. (Wagner C.J. and Moldaver, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)
The appellant, Erhard Haniffa, 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 was heard together with three others, each concerning the doctrine of entrapment in the context of the Project Raphael online police investigation. The companion cases, with reasons released concurrently, are R. v. Ramelson, 2022 SCC 44, [2022] 3 S.C.R. 450, R. v. Jaffer, 2022 SCC 45, [2022] 3 S.C.R. 496, and R. v. Dare, 2022 SCC 47, [2022] 3 S.C.R. 510. Like two of the other three appellants, Mr. Haniffa’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.
Mr. Haniffa’s appeal concerns the bona fide inquiry prong of the entrapment doctrine in relation to Project Raphael. Because I consider these issues at length in Ramelson and because the disposition of this appeal is necessarily the same, my reasons here are brief.
On March 22, 2016, while browsing the escort subdirectory of Backpage.com, Mr. Haniffa responded to an ad purportedly placed by “Jamie”. The ad indicated she was 18 years old (the minimum age allowed by the website), and described her as “YOUNG Shy FRESH and NEW”, “super new to this and pretty shy” and as having a friend who is “young like me” (A.R., vol. VI, at p. 5). Communicating with Mr. Haniffa by text, the undercover officer (UC) eventually revealed to him that “she” was 15 years old:
[11:13 – Haniffa]: U busy?
[13:09 – UC]: im free tn after school
[13:13 – Haniffa]: What time is school done?
[13:19 – UC]: 330
. . .
[14:35 – UC]: r u ok if im not quite 18 yet?
[14:53 – Haniffa]: Is this like a cop thing or something?
[14:53 – Haniffa]: Can u call u?
[15:00 – UC]: .no silly
[15:01 – Haniffa]: How old r u?
. . .
[16:18 – UC]: im 15 to be hones but I look older hun
[16:20 – Haniffa]: Mm
[16:20 – Haniffa]: Ok so where will u be working?
[16:24 – UC]: why the mm babe
[16:27 – Haniffa]: As in mm ok
(A.R., vol. VI, at pp. 13-15)
When Mr. Haniffa arrived at the designated hotel room, he was arrested. He was charged with 3 offences: telecommunicating with a person he believed to be under the age of 18 years, for the purpose of committing an offence under s. 286.1(2) of the Criminal Code, R.S.C. 1985, c. C-46 (communicating to obtain sexual services from a minor), contrary to s. 172.1(1)(a); telecommunicating with a person he believed to be under the age of 16 years for the purpose of committing an offence under s. 152 (invitation to sexual touching), contrary to s. 172.1(1)(b); and communicating to obtain sexual services for consideration from a person under 18 years, contrary to s. 286.1(2).
Mr. Haniffa was convicted at trial of all three counts (2017 ONCJ 525), but his conviction under s. 172.1(1)(a) was stayed pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729. He then brought an application for a stay of proceedings on the basis that he had been entrapped.
The application judge dismissed the application, concluding that Project Raphael was a bona fide inquiry (2017 ONCJ 780). The Court of Appeal then dismissed Mr. Haniffa’s appeal for its reasons in R. v. Ramelson, 2021 ONCA 328, 155 O.R. (3d) 481, which addressed the common issue of whether the individuals arrested through Project Raphael were entrapped (2021 ONCA 326, 155 O.R. (3d) 523, at para. 46).
In this appeal, Mr. Haniffa adopts the questions in issue as set out in the appellant’s factum in Ramelson, and acknowledges that “the facts of the present case are sufficiently similar, so that the same conclusions must follow” (A.F., at para. 41). Many of his arguments mirror those raised in Ramelson, but he raises some additional points. Inspector Truong’s evidence, he says, was insufficient to ground reasonable suspicion: it was based too heavily on his personal experiences, failed to show the targeted offences were prevalent, and failed to explain how a user would actually locate a juvenile sex worker through the website, given its parameters. And given the potential breadth of investigations into spaces, the police should be limited, in the context of bona fide inquiries, to offering the same offences they suspect are occurring; they should not be entitled to offer those that are only rationally connected and proportionate (see R. v. Mack, [1988] 2 S.C.R. 903, at p. 958).
For the reasons given in Ramelson, I would not accede to these arguments. As I explained there, the police had reasonable suspicion over a sufficiently precise space and the Mack standard of “rationally connected and proportionate” applies and was satisfied. Project Raphael was thus a bona fide inquiry. I conclude that Mr. Haniffa was not entrapped.
For these reasons, I would dismiss Mr. Haniffa’s appeal.
Cases cited
- R. v. Ramelson 2022 SCC 44 ¶ 1, ¶ 2
- R. v. Jaffer 2022 SCC 45 ¶ 1
- R. v. Dare 2022 SCC 47 ¶ 1
- 2017 ONCJ 525 2017 ONCJ 525 ¶ 5
- Kienapple v. R. item-4274-1974-02-11 ¶ 5
- 2017 ONCJ 780 2017 ONCJ 780 ¶ 6
- R. v. Ramelson 2021 ONCA 328 ¶ 6
- 2021 ONCA 326 2021 ONCA 326 para 46 ¶ 6
- Ramelson Ramelson ¶ 7, ¶ 8
- A.F. A.F., at para. 41 para 41 ¶ 7
- R. v. Mack 19747-1988-12-15 p 958 ¶ 7, ¶ 8
Statutes and regulations cited
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- s. 286.1(2) ¶ 4
- s. 172.1(1)(a) as of 2022-11-24 ¶ 4, ¶ 5
- s. 152 as of 2022-11-24 ¶ 4
- s. 172.1(1)(b) ¶ 4