R. v. Brown, 2021 NLCA 27

Kyle Brown (appellant) v. Her Majesty the Queen (respondent) (20/59) Indexed As: R. v. Brown 2021 NLCA 27 6 C.A.N.L.R. 578 Court of Appeal of Newfoundland and Labrador Welsh, Hoegg and O’Brien JJ.A. May 10, 2021

Summary: Kyle Brown was convicted of three counts of child luring as a result of an undercover police investigation. At trial, the judge dismissedhis application for a stay of the charges based on the doctrine of entrapment. Mr. Brown appealed the decision to dismiss his application,arguing that the trial judge erred in finding that the undercover police officer had the necessary reasonable suspicion to ground a bonafide investigation. Held: Appeal dismissed. Welsh J.A. (Hoegg and O’Brien JJ.A. concurring): The doctrine of entrapment is based on principles of abuse of process.

The doctrine isnot engaged where the police have a reasonable suspicion that criminal activity is occurring at the targeted location. The requirement fora reasonable suspicion to ground the investigation must be established by objectively discernable facts (paragraphs 6-8). A targeted website, carefully delineated, may constitute a virtual location where the police are permitted to conduct an investigationwhere they have the necessary reasonable suspicion of criminal activity (paragraphs 9-10).

Factors that may assist in the analysis include: seriousness of the crime, the expectation of privacy by users of the website, and theavailability of less intrusive techniques (paragraph 11). Applying relevant factors in this case, the trial judge did not err in dismissing Mr. Brown’s application for a stay of the charges based onthe doctrine of entrapment (paragraphs 12-22). Cases cited: R. v. Mack, (SCC), [1988] 2 S.C.R. 903 (S.C.C.) R. v. Ahmad, 2020 SCC 11 R. v. Ghotra, 2021 SCC 12 R. v. Ghotra, 2020 ONCA 373 R. v. Barnes, (SCC), [1991] 1 S.C.R. 449 (S.C.C.) ___________________________________

Leave to appeal to SCC refused, 39731 (November 10, 2021) Statutes considered: Criminal Code , sections 172.1(1) , 163.1 , 152 and 271 Counsel: Derek Hogan, for the appellant; Shawn I. Patten, for the respondent. The appeal was heard on April 16, 2021 before Welsh, Hoegg and O’Brien JJ.A. The following judgment was filed on May 10, 2021 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] Kyle Brown was convicted of three counts of child luring contrary to

section 172.1(1) of the Criminal Code . At trial, his application for a stay of the charges based on the doctrine of entrapment was dismissed. Mr. Brown appeals that decision. BACKGROUND [ 2 ] Mr. Brown’s telecommunications with a fictional girl created by an undercover police officer resulted in convictions for child luring for the purpose of facilitating the commission of possession of child pornography (

section 163.1 of the Criminal Code ), invitation to sexual touching (

section 152 ) and sexual assault (

section 271 ). The trial judge summarized the relevant facts in an oral decision of January 28, 2020 in which he dismissed Mr. Brown’s application for a stay of the charges: [ 3 ] Constable Follett testified that as an investigator with respect to child pornography, he created a fictional profile of a young female and placed an ad on the website NLAdult.com. The ad [was] titled “New to this scene”. The description stated, “Teen girl involved in dance and cheer, long legs lean body can’t host”. It was posted in an area of “I am a woman seeking a man”.

The officer testified that the account is set up using a name and an email address. He created the account in the name of Madison Dohey. A fictitious email address was used. The officer stated he used this site 5 to 10 times for the same purpose. He had in the past also used sites called Backpages, Craiglist and other Apps. There was no requirement in this case [using this website] to put in an age. He testified he also used a photo that he found on the internet. The photo depicts a girl in bra and panties with the head cut out. He posted the ad April 26, 2017.

He accessed the email account shortly after and he had 10 responses. He told the 10 the age of the person and said she was 15. Five either did not respond or responded saying too young. The other five were not deterred by the age. One of the group sent emails back, and the emails were presented in evidence. There were email exchanges with this person who later provided his cell phone number. Once the officer had the cell phone number he was able to find the person who he was communicating with. The email exchanges continue for about five days. He reiterates in the email exchanges that the person is 15.

In addition there were a number of text messages that were exchanged between the two during the same time frame. [ 4 ] ... [The emails] commence with Mr. Brown responding to the advert and picture stating “You are the best thing I’ve seen on here in a long time and I would love to meet you ...”. The immediate response from the fictitious Madison is that “im 15 dunno if that’s too young for wat ur into”. His immediate response is “if you look like the picture in the ad I’m absolutely into you” and he then writes “To be honest it is a little strange to see a 15 year old on here but I’m all for it”.

The chatter continues and he states shortly thereafter “Yeah I am cool with you being 15”. ... [3] Mr. Brown submits that the manner in which the undercover officer proceeded amounted to entrapment and that the trial judge erred in his application of the law. ISSUES [4] The focus of this appeal is whether the trial judge erred in concluding that the undercover police officer had the necessary reasonable suspicion to ground a bona fide investigation that led to the charges against Mr. Brown. ANALYSIS The Law

[5]

Section 172.1(1) of the Criminal Code provides: Every person commits an offence who, by means of telecommunication, communicates with (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of anoffence with respect to that person under subsection ... 163.1 ...; (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of anoffence under

section ... 152, ... or

section 271 ... with respect to that person; or ... [6] The analytical approach to the doctrine of entrapment was established in R. v. Mack, (SCC), [1988] 2 S.C.R.903 (R. v. Ahmad, 2020 SCC 11, at paragraph 23). The analysis was recently applied in the context of child luring in R. v. Ghotra, 2021SCC 12, in which the Supreme Court dismissed Mr. Ghotra’s appeal “for the reasons of Justice Miller of the Ontario Court of Appeal”(paragraph 1). In the Court of Appeal decision, 2020 ONCA 373, Miller J.A. provides a helpful

summary of the law: [16] The defence of entrapment flows from the doctrine of abuse of process. It is not a substantive defence to allegations of criminalwrongdoing, but instead allows for a conviction to be stayed where the investigative conduct of the police was exploitative or corrupting.... [17] … In Mack, at pp. 964-65, the Supreme Court set out the two principal categories of entrapment.

The defence is available when either: 1) “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person isalready engaged in criminal activity or pursuant to a bona fide inquiry”; or 2) “although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunityand induce the commission of an offence.” [7] The onus is on the accused to establish entrapment on a balance of probabilities (paragraph 18). Miller J.A. continued: [19] In R. v.

Barnes, (SCC), [1991] 1 S.C.R. 449 (S.C.C.), the Supreme Court affirmed the “basic rule” articulated inMack, that “the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he orshe is already engaged in the particular criminal activity”: at p. 463. It also affirmed an exception to this rule where police areundertaking “a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring”: at p. 463.

Where police neither have reasonable suspicion of an individual already engaged in crime, nor are investigating a location that isreasonably suspected of being a hub of criminal activity, presenting an opportunity to commit a particular crime amounts to randomvirtue testing, and is not permitted. The Supreme Court most recently affirmed these principles in Ahmad [2020 SCC 11], in which amajority of the Court held that the entrapment framework from Mack has “stood the test of time” and applies with full force to contextssuch as child luring: at para. 23. (Emphasis added.) [8] In R. v.

Ahmad, the majority emphasized the requirement for “reasonable suspicion”: [24] ... This standard requires the police to disclose the basis for their belief and to show that they had legitimate reasons related tocriminality for targeting ... the people associated with a location [citation omitted]. An objective standard like reasonable suspicion ...requires objectively discernable facts. ... [9] The majority in Ahmad acknowledged the valid use of technology by the police conducting an investigation: [35] The difficulty, of course, is that technology aids in the commission of crime.

And in order to investigate and detect those crimes,police must also make use of technology. ... [10] However, as cautioned in Ahmad, care must be taken in defining the scope of the investigation: [37] ...

Technology and remote communication significantly increase the number of people to whom police investigators can provideopportunities, thereby heightening the risk that innocent people will be targeted. ... ... [39] Relatedly, the entrapment doctrine ensures Canadians can “go about their daily lives without courting the risk that they will besubjected to the clandestine investigatory techniques of agents of the state” ... . It is therefore important to carefully delineate and tightlycircumscribe virtual locations in which police can provide the opportunity to commit a crime.

As Lamer C.J. noted in Barnes [ (SCC), [1991] 1 S.C.R. 449], at pp. 462-63, a reasonable suspicion can attach to a place only if it is defined with sufficientprecision ... . [11] An inquiry to ensure that the police have sufficiently narrowed the scope of their clandestine operation may involve considerationof factors such as: “the seriousness of the crime in question; the time of day and the number of activities and persons who might beaffected; ... the level of privacy expected in the area or space; the importance of the virtual space to freedom of expression; and theavailability of other, less intrusive investigative techniques” (Ahmad, at paragraph 41).

Application of the Law [12] There is no allegation in this case that the undercover officer acted so as to induce Mr. Brown to commit the offences. Thequestion is whether this was a bona fide investigation at a location where the police reasonably suspected child luring activity is takingplace. [13] It is clear from the decision in Ghotra, which dealt with child luring, that a website on the internet may constitute a location forpurposes of an undercover police investigation.

However, the police must have a reasonable suspicion, based on objectively discernablefacts, that child luring is occurring on the targeted website. As discussed in Ghotra and Ahmad, the virtual location must be carefullydelineated and tightly circumscribed to avoid “random virtue testing”; that is, providing individuals with the opportunity to commitoffences that they likely would not otherwise have committed (Ahmad, at paragraph 28; R. v.

Barnes, (SCC), [1991] 1S.C.R. 449 (S.C.C.), at page 463, paragraph 24). [14] In determining whether the police had the necessary reasonable suspicion to proceed with the investigation, the factors set out inAhmad are of assistance. It is self evident that child luring is a serious crime. Young people are adept at accessing technology and mustbe protected from those who would take advantage of their immaturity, naivety and curiosity.

The potential for serious harm to the childcannot be understated. [15] A website such as NLAdult.com does not engender an expectation of privacy such as would apply, for example, to textingbetween two friends. The undercover officer posted the fictional information on the portion of the website entitled “I am a womanseeking a man”. The obvious purpose is to facilitate telecommunication between strangers. [16] In this case, the undercover officer was quick to advise that Madison was 15 years old.

Once this was made known to the tenindividuals who had responded to the initial posting, several either responded that she was too young, or did not respond. Mr. Brown, onthe other hand, indicated his quite keen interest, despite knowing Madison’s age. [17] The telecommunications between the undercover officer and Mr. Brown did not engage freedom of expression considerations. Further, other less intrusive investigative techniques are not available to the police. This is a crime committed using electronic means.

The particular website, NLAdult.com, under the category, “I am a woman seeking a man”, delineates and circumscribes the locationtargeted by the undercover operation. [18] The undercover officer explained why he had a legitimate, reasonable suspicion that child luring was occurring on the identifiedwebsite. The trial judge accepted that the officer’s reasonable suspicion was grounded in objectively discernable facts, and referred tothe officer’s evidence that he had used that website previously: [33] ...

The evidence from Constable Follett was also that he used the site [NLAdult.com] previously to investigate if there was contactwith underage persons for sexual purposes, and noted in cross-examination that charges had been laid as a result of using that site. Thatis why he posted the ad on that site. That to me provides evidence that this was a bona fide investigation that the police wereundertaking. [19] Each investigation must be assessed on its own facts.

In this case, the fact that communications on this particular site had led tochild luring charges in the past was a valid basis on which the trial judge found the necessary reasonable suspicion to ground theundercover investigation. The Crown is not required to reach back to validate the rationale that led to the first charge on the targetedlocation, as suggested by Mr. Brown. [20] As was the case in Ghotra, Mr. Brown initiated the communication with Madison who immediately raised the issue of her age,which she reiterated in other communications, giving Mr. Brown the opportunity to cease further communication.

Rather thanwithdrawing, knowing her age, he pursued sexual inquiries and a suggestion that they meet. [21] Finally, in Ghotra, the Court refused to accept the position taken by the accused that: [26] ... But for the presence of a 14-year-old girl in an adult chat room, he argues, he would not have had an opportunity to commit theoffence of luring a 14-year-old girl. ... [29] Providing an opportunity is not established by but-for causation – that but for the presence of the investigating officer posing as a14-year-old girl, the appellant would not have had the opportunity to commit the offence. ... ... [31] ...

Where, as here, the police conduct is nothing other than placing a potential victim in an accused’s line of vision, and where theaccused is given no reason to believe that the victim would be a willing participant in the offence committed, the police have notprovided an opportunity to commit an offence. It was the appellant who initiated contact with the undercover officer masquerading as a14-year-old girl. ... Having learned that she was underage, it was the appellant who ventured into sexual topics and suggested an in-person meeting.

Throughout these interactions, the undercover officer repeatedly raised the issue of the fictional victim’s youth, but theappellant persisted. [22] The same circumstances were at play in this case. The requirement for reasonable suspicion, established by objectivelydiscernable facts, to ground the investigation has been demonstrated. [23] In the result, I am satisfied that there is no basis on which to conclude that the trial judge erred in dismissing Mr. Brown’s

application for a stay of the charges based on the doctrine of entrapment. DISPOSITION [ 24 ] Accordingly, I would dismiss the appeal. Appeal dismissed.