Reasons for Judgment — Karakatsanis J. (Wagner C.J. and Moldaver, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)
Karakatsanis J. — The appellant, Temitope Dare, 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 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. Haniffa, 2022 SCC 46, [2022] 3 S.C.R. 506. Like two of the other three appellants, Mr. Dare’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. Dare’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 25, 2016, while browsing the escort subdirectory of Backpage.com, Mr. Dare responded to an ad purportedly placed by “Kathy”. The ad indicated she was 18 years old (the minimum age allowed by the website), described her as a “Tight Brand New girl . . . who is sexy and young with a tight body”, and stated that she had a “YOUNG FRIEND” (R.R., vol. IV, at p. 118). Communicating with Mr. Dare by text, the undercover officer (UC) eventually revealed to him that “she” was 15 years old:
[03:26 – UC]: You cool with young?
[03:26 – Dare]: Yes
[03:27 – Dare]: Am also young
[03:27 – UC]: Ok cool. I’m 15 but look bit older.
. . .
[03:28 – UC]: How old are you if don’t mind me asking?
[03:29 – Dare]: Ok am 22
(R.R., vol. IV, at pp. 121-22)
When Mr. Dare 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).
The jury convicted Mr. Dare on all three counts, but his convictions under ss. 172.1(1)(b) and 286.1(2) were stayed pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729. Mr. Dare then brought an application for a stay of proceedings, arguing that he had been entrapped.
The application judge dismissed the application, concluding that Project Raphael was based on the police’s reasonable suspicion that the offences were occurring within a sufficiently precise space. Since the police did “everything possible within the confines of Backpage” to limit the pool of people who would select the ad to those interested in obtaining the sexual services of a young person, the police conduct did not amount to random virtue testing (A.R., vol. I, at p. 8). The Court of Appeal then dismissed Mr. Dare’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 327, 155 O.R. (3d) 516, at para. 28).
In this appeal, Mr. Dare adopts the appellant submissions made in Ramelson and Haniffa, stating that “the facts in the present case are sufficiently similar, so that the same conclusions ought to follow” (A.F., at para. 23). For the reasons I have given in Ramelson, where I concluded that Project Raphael was a bona fide inquiry, I would not accede to Mr. Dare’s grounds of appeal. He was not entrapped. I would therefore dismiss the appeal.
Cases cited
- R. v. Ramelson 2022 SCC 44 ¶ 1, ¶ 2
- R. v. Jaffer 2022 SCC 45 ¶ 1
- R. v. Haniffa 2022 SCC 46 ¶ 1, ¶ 7
- Kienapple v. R. item-4274-1974-02-11 ¶ 5
- R. v. Ramelson 2021 ONCA 328 ¶ 6
- 2021 ONCA 327 2021 ONCA 327 para 28 ¶ 6
- Ramelson Ramelson ¶ 7
- A.F. A.F., at para. 23 para 23 ¶ 7
Statutes and regulations cited
-
- s. 286.1(2) ¶ 4, ¶ 5
- s. 172.1(1)(a) as of 2022-11-24 ¶ 4
- s. 152 as of 2022-11-24 ¶ 4
- s. 172.1(1)(b) ¶ 4, ¶ 5