Doyon, Baudouin, Kalichman

Application for leave to appeal from a conviction. Granted. Appeal from a judgment of the Superior Court dismissing an application for a stay of proceedings based on entrapment. Dismissed.

As part of a police operation, officers posted fake ads on four websites offering escort services. The wording of the ads used terms like [translation] “young beginner”, [translation] “young beauty”, and [translation] “young”. The appellant responded to one of these ads and found out from the contact person (an undercover agent) that the services were offered by 16-year-old girls. He was arrested by the police at the time of the scheduled date. He was convicted of communicating with a person for the purpose of obtaining the sexual services of a minor for consideration. He appeals from the judgment subsequently rendered dismissing his application for a stay of proceedings based on entrapment. The grounds raised by the appellant concern the issue of reasonable grounds regarding the commission of a specific offence and the notion of [translation] “sufficiently precise virtual space”.  

The trial judgment does not contain any errors. The police officers were conducting an bona fide investigation. The ads that were published constituted a sufficiently precise space and emphasized the women’s youth. Furthermore, the ads were published on websites that offered only escort services and, in particular, that had been used in the past to offer the sexual services of a good many underage runaways. Finally, the officers did not offer the possibility of committing the offence to everyone who used the websites, but only to those who selected the ad with the words “young beauty” or some expression to that effect and who, after communicating with the undercover agent, were told that the young girl was 16 years old. The officers limited the scope and breadth of this investigative technique as much as possible to avoid luring those who are unrelated to the criminal activity, while trying to carry out an effective investigation, which is their job to do; in fact, there is no other effective investigative technique for such offences.  

Moreover, it is inaccurate to say that the prosecution had to file the earlier reports in the police’s possession. Reasonable suspicion may arise from hearsay and purely testimonial evidence if this evidence is deemed reliable by the trial judge, as was the case here. The appellant could have attempted to contradict the lead investigator by asking him to file these reports into evidence. He did not do so and the judge could certainly accept the investigator’s testimony.

There was reasonable suspicion that those who used these sites were engaging in the offence set out under section 286.1(1) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.), which is rationally and proportionally connected to the offence set out under section 286.1(2) Cr.  C. Indeed, other than the issue of the girls’ age, the essential elements of both offences are identical. They are distinct only in the sentence associated with each. That being said, this is not a case where the sentence is so different as to make the offences unrelated or disproportionate. Moreover, the difference between the seriousness of the two offences is lessened here by the fact that the sexual services offered under section 286.1(2) Cr. C. involved a person who, although a minor, was old enough to consent to sexual relations.

Text of the decision: http://citoyens.soquij.qc.ca