Soliciting illegal conduct

That's the core question arising from four cases being heard at the Supreme Court of Canada later this month. In each case, a man was arrested by the York Regional Police and charged with soliciting sexual services from a minor. But their lawyers will argue that was never their intention.

The case is yet another test of whether novel police investigative techniques are, in fact, entrapment. The case comes just two years after the court ruled in R. v. Ahmad that "the offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity."

The men, scheduled to appear before the top court on May 17, are four among more than 100 charged as part of a long-running police sting, which ran from 2014 to 2017.

Under the project, police posted ads to Backpage.com — which, at the time, it was one of the most popular forums for sex workers to advertise their services and, police alleged, a prime spot to advertise juvenile prostitution — offering sexual services. However, the fake ads advertise the woman as being over 18 years. The ads feature photos of a woman, an undercover cop who was, in fact, in her 30s.

It was only after a would-be john responded to the ad and began haggling over prices and details that the undercover cop stated she was, in fact, underage: 14 or 15 years old.

In one of the cases, the trial judge — despite convicting the accused — found that "it is evident that the accused did not initially intend to obtain sexual services from someone who was underage." But the fact that these men, and dozens of others, showed up at the hotel for the encounter was enough for police to lay charges.

The men were convicted in 2019, but had their convictions stayed at sentencing, partly thanks to the Supreme Court's decision in R. v. Ahmad. In that 2020 case, the justices ruled in a 5-to-4 decision that, where police have reasonable suspicion that the individual in question has committed a crime, officers can entice the person into repeating it.

Yet, in the four cases up for this month's hearings, police didn't know who would respond to these ads. As one of the appellants notes in their written submissions: "Nothing in the advertisements, messages, or site suggested that [he] was interested in an underaged prostitute."

The Attorney-General, however, asserts that merely using Backpage.com is evidence of a willingness to solicit a minor.

The website, which began as a rival to Craigslist, offered an array of classified ads — the most popular of which were its listings for sexual services.

In their submissions, the Attorney-General concedes that "the Backpage website required that anyone posting an ad claim a minimum age of 18. The site would not permit an ad to be posted that listed an age of under 18." And yet, "law enforcement had determined that the escort section of Backpage.com was a market leader for sex advertising, and with that, came a high demand for juvenile prostitution."

Indeed, a network of American law enforcement agencies, armed with two new pieces of legislation ostensibly written to curb sex trafficking, launched an operation against Backpage in 2018, seizing the website and charging a number of its former owners. The Department of Justice, at the time, called the page "the Internet's leading forum for prostitution ads, including ads depicting the prostitution of children."

That decision drew criticism, namely from the American Civil Liberties Association, which filed a brief in support of Backpage, arguing: "The court should hold the government to its burden to prove beyond a reasonable doubt that the defendants knew that specific advertisements in question solicited illegal conduct: it should not to open the door to criminal liability merely for providing an online forum where others might have posted improper content."

At the Supreme Court of Canada, the majority found in Ahmad that the state must "delineate and tightly circumscribe" virtual locations where these operations occur. "State surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space," Justices Andromache Karakatsanis, Russell Brown and Sheilah Martin wrote. "Technology and remote communication significantly increase the number of people to whom police investigators can provide opportunities, thereby heightening the risk that innocent people will be targeted." 

After Ahmad, Breana Vandebeek, a Toronto-based partner at Gorham Vandebeek, told CBA National that the important takeaway for investigators is that "reasonable suspicion can't be looked at retrospectively." Otherwise, police can invite nearly anyone to commit a crime and hold them liable if they acquiesce — that's "random virtue testing," that the Supreme Court warned about. Vandebeek also represents one of the men arrested by York police who is appealing his conviction to the Supreme Court. 

According to Claire Kanigan, an associate at Arvay Finlay, where the Supreme Court lands on this case could have enormous impacts on how virtual spaces are surveilled and how sex workers can go about their business.

"Online spaces play a major role in allowing sex workers today to work safely and autonomously, and have been subject to years of attack in the name of reducing exploitation and trafficking," she says. Police infiltration of those spaces, she adds, "will have major impacts on sex workers' safety, livelihood, and communities, and must be taken very seriously."

While the Attorney General is not relying on Canada's laws around sex work to make their case, the continued criminalization of prostitution in Canada is the backdrop for the hearings.

As the Ontario Court of Appeal noted in 2021, "the persons who responded to the police ads, and other similar ads, were engaged in communicating to obtain for consideration the sexual services of a person, which is a criminal offence."

That prohibition and a raft of others that were passed into law following the 2014 decision in R. v. Bedford have been the subject of significant litigation in recent years.

Even if the cases at hand don't engage Canada's sex work laws directly, "their result will have impacts on the persons these laws purport to protect, including adult sex workers working independently," Kanigan says. Indeed, while the Attorney General asserts that Backpage was infamous for its use to advertise underage prostitution, there's no denying that it was also a critical hub for adult sex workers.

"In the context of the appeals at hand, the interests of sex workers in remaining free from state intrusion into their work must be given significant weight," Kanigan says, adding: "These appeals present an important opportunity for the courts to provide this guidance in a way that centres the safety, dignity, and agency of people engaged in sex work."

Concerns about who may get captured in these digital dragnets extend quite widely. How the Supreme Court refines the test laid out in Ahmad could determine whether or not police can field these sorts of open-ended invitations to commit a crime.

Vandebeek's client, at the time of his arrest, was suffering from undiagnosed Asperger's Syndrome. Part of the problem with the virtual sting operations, like those employed by the York Regional Police, is that they fail to account for who may respond to those ads.

"While police officers in these situations may not be exploiting a person's vulnerabilities or mental disorder intentionally," Vandebeek argues in her submissions, "the nature of online operations fails to provide the opportunity for participating officers to recognize characteristics of an accused that may increase the likelihood of inducement."