Law Times

Page 12 December 12, 2016 • Law Times www.lawtimesnews.com Criminal activity 'reasonably suspected' in chat room Ruling explores entrapment in the digital realm BY GABRIELLE GIRODAY Law Times A recent Ontario Superi- or Court of Justice case that alleged entrap- ment by police in an Internet chat room highlights important aspects of the law in the digital realm. In R. v. Ghotra, 2016 ONSC 5675, Akash Ghotra and his counsel Alan Gold and Melanie Webb argued an undercover offi- cer from Peel Regional Police en- trapped Ghotra when she posed as a 14-year-old girl named Mia in an online chatroom. After online conversations between the two, Ghotra went to an apartment building for a meeting, where he was arrested for Internet luring and subse- quently found guilty. However, Ghotra argued he'd been "en- trapped when the officer pro- vided an opportunity to commit the offence by telling him she was 14 years old," said the ruling by Justice Bruce Durno. In the ruling, Durno indicat- ed Ghotra "took the lead" when it came to online discussions with Mia about her age and about sexual matters. Durno said the case was not an example of random virtue testing, and he chose not to stay the charge. Michael Lacy, partner at Brauti Thorning Zibarras LLP and vice president of the Crimin- al Lawyers' Association, says the challenge for Durno was deter- mining if "the accused controlled the circumstances of the offence or was it the officers who in fact were creating an opportunity." Says Lacy, "I think the law of entrapment has to be re- envisioned in light of the ways in which police utilize technology to, they would say, investigate crimes; I would say, in some cases, create the circumstances to allow people to commit offences." He says he expects the case will likely be appealed to the On- tario Court of Appeal. "With the evolution of tech- nology and anonymity through electronic messaging, the com- mon law rules related to entrap- ment do not seamlessly fit into the new modern reality," says Lacy. "The more proactive the po- lice become in inviting people to commit crimes rather than sim- ply uncovering crimes through surreptitious surveillance on the Internet, the more likely that courts will see it as a problem." In the ruling, Durno stated that he found "criminal activity was reasonably suspected in the chat room." He cited R. v. Barnes, 1991, noting that "where officers have a reasonable suspicion that the physical location with which the person is associated is a place where the particular criminal activity is likely occurring, they are not engaged in random vir- tue testing." Durno added, "The internet chat room was a place where in- ternet luring was likely occur- ring," later noting that "police must be permitted leeway in their investigations depending on the type of offence being investigated. "The nature of the internet makes that leeway essential." Daniel Brown, a criminal de- fence lawyer in Toronto, says on- line investigations where police pose as someone underage to investigate digital crimes against children "is a concept that we're seeing a lot more of." "There are cases that are be- fore the court right now where lawyers are raising entrapment arguments in relation to this, and while it's not identical to the fact scenario [in Ghotra], it's just another example of the po- lice using . . . the digital world as a way to catch people who were previously difficult to detect through traditional investiga- tions," he says. With prostitution moving indoor and online, Brown says, "This is a way that the police can now use to catch people who are perhaps pursuing underage sex- ual encounters." He adds, "They don't have wiretaps, they don't have search warrants, all they need is a cell- phone and an online account and they can attract or lure pot- entially hundreds of men who are engaging in this behaviour." Brown says to expect more police sting operations. "These types of investiga- tions are going to be far more common in the future because they're so inexpensive to set up and, apparently, they're effective and legitimate," he says. Edmond Brown, a criminal defence lawyer in Brampton, Ont. and president of the Peel Criminal Lawyers Association, says that, in his opinion, police handled the case appropriately. ". . . This is a legitimate inves- tigative technique on the part of the police to deter people from getting involved with underage children and teenagers," he says. A spokesman for the Ministry for the Attorney General said Ghotra will return to the Ontario Court of Justice in March 2017. Scott Cowan, a criminal de- fence lawyer, said, "If while posing as a young girl the police made in- vitations to meet — or turned the conversation sexual — the result may have been different. "But Justice Durno was not willing to characterize a mere in- troduction as an opportunity to commit a luring offence, even in the context of a dating chat room," said Cowan. "The case does re- mind us that we don't want to risk punishing curiosity when the only victim was the one the police created. A police ruse can only go so far without running afoul of entrapment principles." Gold said he could not com- ment on the ruling. LT Daniel Brown says police are using 'the digital world as a way to catch people who were previously difficult to detect through traditional investigations.' FOCUS ORDER YOUR COPY TODAY! 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