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Canadian Criminal Law Review December, 2011 Article *89 The Entrapment Defence in Internet Child Luring Cases Brent Kettles [FNa1] Copyright © 2011 by Thomson Reuters Canada Limited. A Carswell Publication.; Brent Kettles Section 172.1 of the Criminal Code criminalizes communication with children over the Internet for the purposes of committing a sexual offence. The investigative methods used to investigate these crimes often raise the spectre of police entrapment. However, despite the fact that this provision has been invoked in a substantial number of prosecutions, the defence of entrapment has been raised in only a small number of cases, with contradictory results. This paper explores the historical development of the doctrine of entrapment and its application in the context of child luring cases. It concludes that the defence will rarely be available due to the way the jurisprudence conceptualizes “opportunity to offend” and “bona fide inquiry”. Entrapment will not be made out where the police create a mere opportunity to commit the offence or where the opportunity is presented in the context of a defined and reasonable investigation. Finally, policy considerations militate against the availability of the defence in cases of internet child luring. It is a revenge the devil sometimes takes upon the virtuous, that he entraps them by the force of the very passion they have suppressed and think themselves*90 superior to. -- George Santayana 1. INTRODUCTION In 2002, Parliament enacted s. 172.1 of the Criminal Code to criminalize communication with children over the internet for the purposes of committing a sexual offence. [FN1] The amendment was sought for the purposes of giving police additional tools to combat “child luring” offences which had been and remain insidious and difficult to prosecute. Since that time, approximately 2,000 cases of child luring have been reported to or by police, resulting in more than 140 prosecutions. [FN2] To date, however, the defence of entrapment has been raised in only three of these cases. This raises important questions about the applicability of the doctrine of entrapment to the arena of internet child exploitation. This paper aims to discuss the doctrine of entrapment in Canada as it relates to the prosecution and defence of charges of child luring on the internet. In particular, the paper will discuss how courts in Canada have treated rea-

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sonable suspicion and “opportunity”. This is in the context of police monitoring of internet chat rooms and the police creation of fictitious profiles of minors to engage in conversations with individuals on these sites. The paper will also review jurisprudence to determine whether the nature of the offence itself can give rise to the “reasonable suspicion” or bona fide inquiry necessary to overcome the random virtue testing provisions of the entrapment doctrine. It is submitted that the doctrine of entrapment is unlikely to be successful in internet child luring cases because: (1) a mere opportunity to offend is unlikely to trigger the doctrine because the accused will almost always generate reasonable suspicion; (2) the nature of the internet makes the demonstration of a bona fide investigation very easy; and (3) policy rationales surrounding the protection of children will either explicitly or implicitly factor into a court's balancing of competing interests such that entrapment is not found. 2. THE DOCTRINE OF ENTRAPMENT Entrapment is not a defence to criminal responsibility per se. Rather, it emanates from a court's inherent jurisdiction to control its own procedures and to guard against abuses of those processes. It is therefore a branch of the abuse of process doctrine that is rooted in the common law and, in Canada at least, derives its form and character from case law rather than statutory interpretation or constitutional protection. Although it has been the subject of significant controversy in Canada and elsewhere, the appropriate remedy for police entrapment has been held not to be an acquittal, but a stay of proceedings. This is because entrapment does not negative the guilt of the accused (moral or criminal), but arises to deter unacceptable*91 police conduct that is adjudged to be the source of the criminality itself. [FN3] This has important implications with respect to an accused's use of the doctrine. An accused must be found guilty of the offence before moving for a stay on the basis of an abuse of process. [FN4] The burden of proof, on a balance of probabilities, is on the accused. [FN5] It is perhaps for this reason, more than any other, why entrapment is rarely used in any Canadian criminal cases, let alone in child luring cases. The leading Canadian case on the doctrine of entrapment is R. v. Mack. [FN6] In that case, the accused refused the requests of a police informant to sell him large quantities of cocaine for over six months before finally doing so after being both threatened with a gun and offered a significant sum of money. After reviewing the existing Canadian and foreign jurisprudence, the Supreme Court of Canada summarized the doctrine of entrapment as follows: ... there is entrapment when, (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. [FN7] This passage makes clear that the doctrine of entrapment has two branches: the presentation of an opportunity in the absence of reasonable suspicion or a legitimate investigation, and actual inducement. The second branch is relatively straightforward. The first branch, which the court referred to as “random virtue testing”, permits an accused to claim entrapment when they were presented a mere opportunity to offend but where police had little or no particularized basis on which to believe the accused would accept it. The classic example given by Lamer J. is of an officer

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who, seeking to improve his arrest numbers, places a wallet in a park and waits for unsuspecting passers-by to take the money before arresting them. [FN8] Facially, this branch would appear to prohibit a wide range of police activity deemed necessary for effective crime control, including: buy/bust stings for drugs and prostitution and the use of bait cars for auto-theft. In essence, an “opportunity” must be understood to mean more than the mere creation of circumstances in which an accused can offend to avoid the characterization of a huge field of police endeavour being entrapment. Technically, the mere presence of a plainclothes officer creates an opportunity, loosely defined, for someone to offer them illegal drugs and thereby commit an offence. The scope and threshold of this term was defined and *92 narrowed in Mack. [FN9] In Mack, Lamer J. gave a contrary example of police placing a woman's handbag in a bus station in the course of a bona fide investigation and waiting to see if someone would steal from it. He held that this would not be entrapment as it was done in the context of a bona fide investigation of theft in bus stations. However, a police operation where prostitutes would be paraded in front of recently paroled offenders to offer them the chance to breach probation would evidence police “mala fides” and constitute entrapment. [FN10] The concept of a bona fide inquiry was further clarified in R. v. Barnes. [FN11] In that case, the court held that a buy and bust operation did not constitute entrapment as it constituted a bona fide inquiry into a high crime area. Thus, the court clarified that a bona fide inquiry has a geographic or spatial dimension insofar as the inquiry must center a specific area known to be associated with a particular criminal activity. Thus, the presentation of an opportunity is not random if there is particularized suspicion of either a person or a place. [FN12] From these basic tests, we can understand that the specific factual circumstances of police investigative techniques are crucial to a determination of entrapment. Factual determinations, including the nature and tenor of the contact, who initiated it and what was believed about the suspect at the time will all play a significant role in determining whether the accused was entrapped. 3. JUDICIAL TREATMENT OF ENTRAPMENT IN CHILD LURING CASES As noted above, only three Canadian cases have dealt with entrapment in the context of child luring cases. Interestingly, none of the cases concern the second branch of the Mack framework. This may be due to several factors: (1) the threshold for proving inducement is very high; [FN13] (2) cases involving child luring usually show that the accused responded to opportunities to offend with alacrity such that no inducement is actually needed; and (3) police are often trained to avoid actual inducement to encourage child predators. [FN14] Thus, in Canada, all entrapment cases concerning child luring have arisen under the “random virtue testing” branch. The first case to do so, R. v. Collins, did not auger well for an accused seeking to raise an entrapment defence. The case arose when police became concerned *93 about the use of a particular website, NetLog, being used by child predators. [FN15] The police created an online profile of a 13 year old girl (“Shelley”) using a photo of a young-looking police officer. The accused initiated contact by “friending” Shelley and immediately initiating a sexual dialogue (or monologue as the trial judge later termed it) with her. [FN16] Eventually, they made plans to meet for sex, however, the accused begged off at the last minute. After several more months of chatting, the accused made further

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plans to meet and was arrested at a mall where he was to meet Shelley. Gorman J. rejected an application for entrapment finding that the police never engaged in any sexual discussion with the accused and that the accused initiated the friendship, chats and plans to meet. Although the court did not explicitly make a finding as to whether reasonable suspicion or a bona fide inquiry existed, it is implicit in the reasons that the police were engaged in a bona fide inquiry as to child luring with respect to the particular website. It is also implicit that the accused created reasonable suspicion by friending and initiating discussion with Shelley. In the Alberta case of R. v. Sargent, a similar result was reached. [FN17] In that case, the police became aware of an individual who had sent nude photographs of himself to a 15 year old girl who had disappeared. Although the accused did not have any connection to the disappearance, the police became concerned the he had attempted to meet with other minors for sex and opened an investigation. Police created a fictitious profile of a 14 year old girl (“Emily”) who invited the accused to become her friend on a social networking site. The accused and Emily chatted a number of times and discussed swapping nude photos. Ultimately, the accused sent a message concluding that Emily was, “too young for me” and terminated contact. The police, concerned that the accused was soliciting nude photos of minors, created another profile of a 17 year girl (“Jesse”) and initiated contact in the same manner. The accused quickly brought up the idea of photo swapping and although he advised her that she was too young and to, “hit me up when you're 18,” over the course of the next two weeks, he suggested that they meet and that she send him nude photos of herself. It was this request that constituted the actus reus of the s. 172.1 offence. At trial, the accused brought an entrapment application under the first branch of Mack: the presentation of an opportunity to offend without reasonable suspicion. This case, superficially, has a number of the indicia of entrapment: the officers created the “victim”, they initiated contact and, when refused, they importuned the accused a second time, persisting in contacting the accused until he offended. However, at trial in the Alberta Provincial Court, Holmes Prov. J. rejected the application on two grounds: (1) that the police conduct did not amount to an “opportunity to offend” in the legal sense; and (2) the police had acquired reasonable suspicion by the time the accused had offended. In holding that the accused was not presented an “opportunity to offend”, the *94 court held: [ ... ] The police were providing an “opportunity” as they understand that term and as it is commonly and broadly used. The question is whether they provided an “opportunity” as that term is defined in the context of the doctrine of entrapment. ... investigators will usually not offend the principles underlying the entrapment doctrine when they contact a suspect in the context of an ongoing investigation and engage in conversation which does not solicit or encourage the commission of the crime which the suspect eventually commits. If during the course of that contact, the accused commits a crime, it is difficult to see how, viewed objectively, investigators can be said to have offered an opportunity to the suspect to commit the criminal offence. ... the simple creation of the underage personas and engaging in sexual discussions within the limits of the law cannot be considered objectively to have created an opportunity for Sargent to request that Jessie make pornographic photos, any more than contacting the suspect and asking veiled questions as to whether he's a

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drug dealer provides an opportunity to traffic in drugs. [FN18] The court also held, in the alternative, that if creating the profile of Emily constituted an opportunity, that the police had reasonable suspicion by virtue of the accused's chat logs with the first girl who disappeared, wherein the accused sent nude photos of himself and invited her to meet him. Thus, the accused's claim of entrapment was defeated on two separate grounds and a conviction was entered. A radically different approach was adopted by an Ontario court in R. v. Bayat. [FN19] In Bayat, the accused, a 22 year old man, came to the attention of police after having been reported by a high school vice principal having filmed and shown sex acts with a 16 year old girl. Police created a fictitious online identity of a 13 year old girl (“Natasha”) and sought to add the accused on MSN, a popular instant messaging service. Over the course of the next week, the accused and Natasha engaged in a number of sexualized chats culminating in a plan to meet for sex. The accused was arrested in close proximity to Natasha's purported address. Thomas J. held that the accused had been entrapped because, although reasonable suspicion would have existed for the crime of child pornography based on the police's prior knowledge, there was no reasonable suspicion for the separate offences of child luring or sexual interference. [FN20] In essence, the court held the accused was entrapped because he was offered an opportunity to commit an entirely different offence (sexual interference) than the one police had originally sought to investigate (child pornography). These cases are fundamentally at odds. In Sargent and Collins, the creation of an online profile and efforts to contact or friend the accused were held not to even constitute an opportunity to offend and were efforts in pursuit of a bona fide inquiry, albeit a different one than the police had originally investigated. In Bayat, the court, by inference, held that the accused was presented an opportunity the moment*95 he was contacted by officers and that the bona fide inquiry had to relate to the identical offence already under investigation. It is impossible to reconcile the ratio of these cases and higher courts will necessarily need to resolve the apparent contradictions in terms of what constitutes an “opportunity” to offend, what constitutes bona fide inquiry and reasonable suspicion. 4. WHAT CONSTITUTES AN OPPORTUNITY? As the conflicting cases above make clear, courts have not yet defined what constitutes an opportunity to offend in the context of child luring. In particular, the question of when the opportunity is presented is crucial because an opportunity must be attended with reasonable suspicion. [FN21] Thus, if the mere creation of the online profile or an attempt to contact a suspect is held to constitute an opportunity, it will be much more difficult for reasonable suspicion to be achieved and entrapment would be more likely. However, as Mack and Barnes make clear, an opportunity in the entrapment context is more complex and restrictive than the plain sense meaning of the word. In short, the illuminating part of the test is not “opportunity” but “to commit an offence”. The mere presence of a state agent during the commission of an offence does not create either the offence or the opportunity. Rather, the key question is whether the opportunity arose by virtue of the state agent's actions. To rely on the examples from Mack, placing a wallet creates an opportunity because absent the wallet, no theft could occur. Similarly, without the police action in rounding up prostitutes to wait outside the jail, there would likely be no temptation for a parolee to break their parole. [FN22]

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This imports the basic rationale for an entrapment defence into the random virtue testing provisions: the police have not entrapped an individual until they have created the conditions for the offence to occur. This has been expanded upon in two recent appellate decisions in Alberta and Ontario. In R. v. Imoro, an undercover officer acting on an anonymous tip went to an apartment building to meet the accused for the purpose of buying drugs. [FN23] The accused met the officer and invited him to come to his apartment. The officer asked, “Can you hook me up?” to which the accused responded, “Yeah man.” Inside the apartment, the officer witnessed the accused sell drugs to another man before asking the officer what he wanted to buy. The accused then sold the officer $40 worth of powered cocaine. The Court of Appeal for Ontario, in overturning the trial judge's finding that the accused had been entrapped, held that asking the accused whether he was a drug dealer did not amount to an opportunity. [FN24] Rather, it was a legitimate investigative technique used in furtherance of obtaining reasonable suspicion, which was agreed not to have existed at the time the officer asked. The opportunity to traffic in drugs did not exist until the officer actually presented the money necessary to buy *96 the drugs, by which time he had more than reasonable suspicion by virtue of having watched the accused sell drugs to another. This ratio was heavily relied upon by the judge in Sargent. In R. v. Benedetti, an undercover officer attempted to buy drugs from a particular suspect. [FN25] When he was refused, another woman took him to a different apartment where he successfully purchased cocaine from the accused. From the beginning of the investigation, it was conceded that neither the accused nor the building he lived in were suspected in drug trafficking. In overturning the trial judge's finding of entrapment, the Court of Appeal of Alberta held: In our view, the trial judge committed two errors of law in concluding that this was a proper case for entering a judicial stay. First, she focussed her attention upon whether the constable had a reasonable suspicion at the very beginning of the chain of events that led to his introduction to Sharon by Carrie followed by the purchase from Sharon, via the Appellant. Instead, she ought to have considered whether, at the time when the opportunity to commit the crime was made available to the Appellant, the constable had a reasonable suspicion that the Appellant was already involved in criminal activity. [emphasis in original] It is true that, when the constable first embarked upon his investigation, he had no reasonable suspicion of the Appellant or anyone else at the place where the Appellant was located. [ ... ] Knowing that he was interested in buying cocaine, Carrie volunteered, without prompting by him, to take Constable Chowanec to a place where there was someone who could “help him out”. These circumstances ... justified his reasonable suspicion of individuals who were found at the place where Carrie then took him. [FN26] These two cases suggest that an opportunity to offend does not arise merely because of an introduction between police and an accused. Rather, read in the context of the actual phrase from Mack, “an opportunity to offend”, it seems that the police must either offer or make possible some essential element of the offence itself. Their presence alone does not create the opportunity. Applying this principle to child luring cases, it appears that the better view of opportunity is contained in Sargent, rather than Bayat. The mere creation of an online profile in a chat room, the initiating of a chat or the friending of a suspect can be analogized to phoning or meeting a drug suspect and engaging in drug-related conversations with them. It can be argued, and has been held, that they are preliminary investigative steps that can be used to acquire reasonable suspicion for the purposes of offering an opportunity later on.

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5. REASONABLE SUSPICION AND BONA FIDE INQUIRY If an opportunity does not arise by the mere creation of an online person (or, depending on one's perspective, a virtual “victim”), then police may use the evidence gained through that online identity to obtain and crystallize reasonable suspicion such that an opportunity may be presented. Conversations in which an accused repeatedly engages in sexualized dialogue with a person thought to be a minor and *97 any admissions they may make during the course of those conversations will easily ground reasonable suspicion. At that time, police may then offer the accused an opportunity to offend, by actually offering the exchange of child pornography or overtures to meet for sex. [FN27] However, irrespective of when an opportunity is presented, there remains in child luring cases a question of when reasonable suspicion arises and what facts may give rise to it. In Bayat, the trial judge found that although there was reasonable suspicion in respect of the child pornography offence, the accused was entrapped because no reasonable suspicion existed in respect of sexual interference. This appears to be in accord with the dictum of Lamer J. in Mack: Obviously, there must be some rational connection and proportionality between the crime for which police have this reasonable suspicion and the crime for which the police provide the accused with the opportunity to commit. For example, if an individual is suspected of being involved in the drug trade, this fact alone will not justify the police providing the person with an opportunity to commit a totally unrelated offence. In addition, the sole fact that a person is suspected of being frequently in possession of marijuana does not alone justify the police providing him or her with the opportunity to commit a much more serious offence, such as importing narcotics, although other facts may justify their doing so. [FN28] This suggests that reasonable suspicion of one crime may not provide reasonable suspicion of another crime unless the two are closely connected, which may leave room for an accused to argue that the entrapment defence would operate in their case. However, in R. v. Lebrasseur, the Quebec Court of Appeal held that a woman was not entrapped when an undercover officer who had reasonable suspicion she was engaged in possession of cocaine offered her an opportunity to traffic it: To require perfect correlation between the crime reasonably suspected and the one that the respondent Lebrasseur had the opportunity to commit, appears to me to be wrong in the present case. [FN29] The question therefore becomes whether all sexual offences are sufficiently similar to permit an inference of rational connection such that reasonable suspicion of one may provide reasonable suspicion of another. There are, as yet, no cases dealing with the rational connection of sexual offences to one another, however, a recent Alberta Court of Queen's Bench decision comes close: The world of sex for money is a murky seam of society peopled with prostitutes, procurers, operators of bawdy-houses, and pimps. [ ... ] I hold the institution of Constable Blue's decoy operation was based on Detective Noel's reasonable suspicion that the accused was running two bawdy-houses, living off the avails of prostitution and procuring underage prostitutes*98 to become employees in the bawdy-houses. I hold his reasonable suspicion has a rational connection to the procurement of prostitutes. [FN30] On this basis, it is submitted that reasonable suspicion of child pornography may well ground reasonable suspicion of an accused's engagement in sexual interference and other crimes of child exploitation. It should also be noted that the standard of reasonable suspicion is relatively low threshold to begin with. [FN31] A number of characteristics

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are common to internet child exploitation offenders, including sexualized chatting, trading in child pornography and a professed desire for a face-to-face meeting. [FN32] These are all factors that could give rise to a, “constellation of objectively discernible facts which give the ... officer reasonable cause to suspect” in order to provide an opportunity to offend. A further impediment to an accused availing himself or herself of the entrapment defence is that of a bona fide inquiry. The police may offer an individual an opportunity to offend without reasonable suspicion that that person is engaged in criminal activity provided they are engaged in a bona fide inquiry: ... it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion. This latter situation, however, is only justified if the police acted in the course of a bona fide investigation and are not engaged in random virtue-testing. [FN33] In the Supreme Court of Canada's further consideration of this principle in Barnes, it became clear that a bona fide inquiry has a geographic or spatial element: The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry. [FN34] In Collins, the police originally had no suspicion relating to the accused. Rather, they were conducting an investigation based on their suspicion that a particular website and chat room was being used for child exploitation. There is a clear analogy to be drawn between a known and identifiable high crime area in Granville *99 Mall in Vancouver and a known and identifiable high crime website. Arguably, the parameters and precision necessary to detail a website is much easier and less messy than a physical geographic place. There are no entrapment cases, as yet, deciding that a website may be a suitable “location” for a bona fide inquiry. However, there are a number of cases where courts have held that websites and electronic media can give rise to “accessing” and “possession” in the context of child exploitation, suggesting that any distinction between physical and cyber space may be overdrawn. [FN35] It is submitted that this is yet another manner in which the Crown may defeat a defence of entrapment. 6. POLICY CONCERNS AND BALANCING OF INTERESTS The doctrine of entrapment has, at its core, a balancing of competing interests. On one hand, courts must prevent abuse of their processes by disentitling the state to a conviction for crimes that it has manufactured or induced. At the same time, courts must not proscribe such a wide swath of police activity so as to make crime repression and control impossible. As Lamer J. famously said: ... the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. [FN36]

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This balancing is reflected both explicitly and implicitly in the entrapment doctrine. In Amato, Lamer J. stated that entrapment, as a defence, would necessarily not apply to all crimes: There are offences which by their very nature would appear ... to render this defence inapplicable, as for example crimes of violence. [ ... ] Whatever may be the range of such a defence, it must be clear that the defence arising in this circumstance does not operate in the case of all offences. In the Model Penal Code of 1962, supra, the defence is “unavailable when causing or threatening bodily injury is an element of the offence charged ...” (s. 2.13(3)), presumably on the basis that the social interest in controlling the accused's behaviour outweighs that of controlling police behaviour. There may be other categories of offences to which the defence will not run but this again will develop as the judicial system of criminal justice may require. [FN37] The question then is whether child luring is such an offence where the social interest in controlling the accused's behaviour outweighs that of controlling police behaviour. Indeed, the response to television programs like “To Catch A Predator” demonstrate which side of that divide the general public is on, whether the accused was entrapped or not. Of course, public revulsion at a particular crime is a poor justification for permitting questionable or illegal police conduct. Similarly, many *100 would reject as a false dichotomy any trade-off between effective law enforcement and the legal rights of citizens not to be subject to random virtue testing. However, the fact remains that internet child exploitation is an activity that presents enormous social harms and is incredibly difficult to detect, let alone prosecute. As the Supreme Court of Canada commented in R. v. Legare (citing Doherty J.A. in R. v. Alicandro): The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults. One author has described the danger in these terms: For those inclined to use computers as a tool for achievement in criminal ends the Internet provides a vast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet one-[to]-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misinterpretation as to the communicator's true identity. Too often, these nets ensnare, as they are designed to, the most vulnerable members of our community -- children and youth. Cyberspace also provides abuse -- intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are forerunners of the use of new technologies and in the exploration of social life within virtual settings. [FN38] Understood in these terms, it is reasonable to ask whether and how courts will balance fairness to the accused with the repression of crime. In Mack, one of the explicit factors for determining whether entrapment has occurred is, “the type of crime being investigated and the availability of other techniques for the police detection of its commission.” [FN39]

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Given that internet child luring is very difficult to detect and given the significant public opprobrium for child exploiters, it is submitted the courts will both explicitly and implicitly restrict the scope of any entrapment defence available to an accused. In short, it will require extraordinary police misfeasance in order to ground a claim of entrapment given the competing social interests. 7. CONCLUSION There is conflicting case law in Alberta and Ontario as to the applicability of *101 the defence of entrapment to child luring cases. Although every case turns on its own particular facts, and while it is conceivable that some police investigatory techniques may amount to entrapment, it is submitted that the defence of entrapment will rarely succeed in child luring cases. Due to the way appellate courts have defined what constitutes an “opportunity” to offend, police will often be able to acquire sufficient reasonable suspicion in respect of either child luring or a related offence. Further, the nature of websites used by child exploiters may well ground claims of a bona fide investigation. Finally, given the social harms related to child exploitation and the balancing of those harms against police conduct inherent in the entrapment defence, courts are unlikely to apply the defence in this context. [FNa1]. “Law Clerk 2011-12, Court of Appeal for Ontario, Juris Doctor 2011 -- Osgoode Hall Law School. This article was written in the Spring of 2011 as part of the Criminal Law Intensive at Osgoode Hall Law School.” [FN1]. Criminal Code, R.S.C. 1985, c. C-46, s. 172.1 (“Code”). [FN2]. Statistics Canada, Child luring through the Internet, Jennifer Loughlin and Andrea Taylor-Butts, (Ottawa: Juristat, March 2009). Online: < http://www.statcan.gc.ca/pub/85-002-x/2009001/article/10783-eng.htm#r1> [FN3]. R. v. Amato, 1982 CarswellBC 661, 1982 CarswellBC 739, [1982] 2 S.C.R. 418, 29 C.R. (3d) 1, 69 C.C.C. (2d) 31 (“Amato”) per Estey J. [FN4]. Ibid. at p. 29. [FN5]. R. v. Mack, [1988] 2 S.C.R. 903 at para. 147, 1988 CarswellBC 701, 1988 CarswellBC 767, 67 C.R. (3d) 1, 44 C.C.C. (3d) 513.(“Mack”) [FN6]. Ibid. [FN7]. Ibid. at para. 126. [FN8]. Mack, supra note 5, at para. 111.

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[FN9]. Interestingly, neither the U.S. nor the U.K. have an equivalent of the random virtue testing doctrine. Actual inducement is required to prove entrapment. See Hampton v. United States, 425 U.S. 484 at p. 490 (1976); United States v. Catanzaro, 407 F.2d 998 at p. 1001 (3d Cir. 1969); and R. v. Loosely, [2001] UKHL 53 per Lord Hoffman at para. 50. [FN10]. Ibid. [FN11]. R. v. Barnes, 1991 CarswellBC 915, 1991 CarswellBC 11, [1991] 1 S.C.R. 449, 3 C.R. (4th) 1, 63 C.C.C. (3d) 1 (“Barnes”). [FN12]. Ibid. at paras. 18-25. [FN13]. Amato, supra note 3, at p. 22: the inducement must be “shocking and outrageous”. [FN14]. Bethany Lindsay, “Cops go undercover to catch child predators online” CTV News (August 7, 2010) online: [FN15]. R. v. Collins (February 20, 2009), London, ON, SC-10369 (Ont. S.C.J.) (“Collins”); oral reasons, unreported. [FN16]. “Friending” refers to the process by which an individual invites another person to become a friend or contact on a website. [FN17]. R. v. Sargent, 2010 ABPC 285, 2010 CarswellAlta 1748 (“Sargent”). [FN18]. Ibid., at paras. 30, 38 and 47. [FN19]. R. v. Bayat, 2010 ONSC 5606 (“Bayat”); leave to appeal granted. [FN20]. Ibid. at paras. 28-32. [FN21]. Mack, supra note 5, at para. 108. [FN22]. Ibid., at paras. 110 and 111. [FN23]. R. v. Imoro, 2010 ONCA 122, 2010 CarswellOnt 771, 72 C.R. (6th) 292, 251 C.C.C. (3d) 131; affirmed 2010 SCC 50, 2010 CarswellOnt 8420, 2010 CarswellOnt 8421, [2010] 3 S.C.R. 62, 263 C.C.C. (3d) 296, 80 C.R. (6th) 27. [FN24]. Ibid. at paras. 15-18.

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[FN25]. R. v. Benedetti, 1997 CarswellAlta 443 (C.A.) (“Benedetti”). [FN26]. Ibid., at paras. 11-17. [FN27]. These are just examples. There is no jurisprudence on what would clearly constitute an opportunity to offend in Canada. However, in the U.S., these examples have been held to constitute an opportunity. See, U.S. v. Ross, 379 Fed.Appx. 683, ¶1 (C.A.9 (Cal.) (2010)). [FN28]. Mack, supra note 5, at para. 112. [FN29]. R. v. Lebrasseur (1995), 1995 CarswellQue 1322, 102 C.C.C. (3d) 167, ¶24 (C.A.). [FN30]. R. v. Juneja (2009), 472 A.R. 166, ¶9-10, 2009 ABQB 481, 2009 CarswellAlta 1235 (Q.B.); affirmed 2010 ABCA 262, 2010 CarswellAlta 1804. [FN31]. See, R. v. A.M. (2008), R. v. M. (A.), 2008 SCC 19, 2008 CarswellOnt 2257, 2008 CarswellOnt 2258, [2008] 1 S.C.R. 569, 55 C.R. (6th) 314, 230 C.C.C. (3d) 377, ¶60 and 82 and R. v. Cahill, 1992 CarswellBC 465, 13 C.R. (4th) 327 at p. 339 (B.C.C.A.). [FN32]. National Child Exploitation Coordination Centre, Internet Based Sexual Exploitation of Children and Youth Environmental Scan, (Ottawa: RCMP, 2006). Online: [FN33]. Mack, supra note 5, at para. 109. [FN34]. Barnes, supra note 11, at para. 23. [FN35]. R. v. Morelli, 2010 SCC 8, 2010 CarswellSask 150, 2010 CarswellSask 151, [2010] 1 S.C.R. 253, 72 C.R. (6th) 208, 252 C.C.C. (3d) 273. [FN36]. R. v. Rothmans, [1981] 1 S.C.R. 640, ¶127, 1981 CarswellOnt 43, 1981 CarswellOnt 93, 20 C.R. (3d) 97, 59 C.C.C. (2d) 30. [FN37]. Amato, supra note 3, at p. 30-31. [FN38]. R. v. Legare, [2009] 3 S.C.R. 551, ¶15, 2009 SCC 56, 2009 CarswellAlta 1958, 2009 CarswellAlta 1959, 70 C.R. (6th) 1, 249 C.C.C. (3d) 129 (C.A.), citing R. v. Alicandro (2009), 95 O.R. (3d) 173, ¶35, 2009 ONCA 133, 2009 CarswellOnt 727, 63 C.R. (6th) 330, 246 C.C.C. (3d) 1, ¶35 (Ont. C.A.); leave to appeal refused 2010 CarswellOnt 5358, 2010 CarswellOnt 5359 (S.C.C.).

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[FN39]. Mack, supra note 5, at para. 129. 16 Can. Crim. L. Rev. 89

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