Reducing the randomness of online virtue testing: Ramelson v R, 2022 SCC 44

When can the police legitimately trick people about whom they have no prior knowledge into committing a crime?

And in what circumstances may such trickery be carried out online, as opposed to in a physical space?

The Supreme Court of Canada considered these matters in Ramelson v R, 2022 SCC 44 (24 November 2022).

A finding that the police acted unlawfully, here by entrapping a person into committing an offence, would be grounds for issuing a stay of proceedings. The drastic nature of issuing a stay makes the decision highly contextual.

Although highly contextual - dependent on the particular circumstances of a case - the decision process is structured. Ultimately, stays are issued to preserve the respect and support that the community has for the law. Given that as the ultimate criterion, one would expect that when a stay is necessary, it will be obviously necessary. The eggregiousness of the police tactic used to obtain the evidence should be obvious to most people. So, why have an elaborate decision model?

In Canada, the police can present any person with the opportunity to commit a crime if they conduct a bona fide inquiry. Bona fide means having a reasonable suspicion that offending is occurring over a sufficiently precise space, and having the genuine purpose of investigating and repressing crime [35].

The notion of space might refer to a geographical area in which offending is suspected to be occurring, or it might refer to a communication channel such as a phone number if it is reasonably suspected to be being used for a criminal purpose. And where crime is conducted through the medium of the internet, the space may need to be curtailed to meet the “sufficiently precise” requirement [51].

In Ramelson the investigation was into the grooming of young people for sexual purposes at an internet site that hosted explicit advertisements by young people offering such services. The police covertly posted similar advertisements on the site. To commit the relevant offence, a person had to go to the site, click on an advertisement, and then message a number mentioned in that advertisement. Those three steps in effect sequentially increased the precision with which the space was defined. They served to reduce the randomness of virtue testing that otherwise could have been beyond the bounds of acceptable police conduct [55].

The police advertisements here presented opportunities to commit offences for which there were reasonable grounds to suspect were occurring, and also slightly more serious offences for which there had been no such grounds. In the circumstances this did not matter, because the two kinds of offence were rationally connected and proportionate to each other [69], [94]-[100].

The judgment discusses in detail the various considerations that can be relevant to the definition of an online space [62]-[68].

The significance of error at trial: Awad v The Queen [2022] HCA 36

When is an error at trial sufficient to cause an appellate court to examine the safety of a conviction?

Appellate judges occasionally differ over the significance of an error in the context of a trial.

Context is important because some errors are slips that can be neutralised during a trial, for example where a judge in summing up to the jury on the law accidentally misstates the way the evidence of a defendant must be approached. This error might be corrected, with the correction being adequately emphasised, by further instructions in the same summing up.

Whether adequate correction of this sort of error occurred was the point under appeal in Awad v The Queen [2022] HCA 36 (9 November 2022). The Court, by a 4-1 majority, ordered a new trial. If the prosecution wishes to pursue that opportunity, each side will, no doubt, find useful the issues identified by Gordon and Edelman JJ at [105].

Steward J dissented, in a judgment that, read on its own, is a convincing argument in support of the immateriality of the error in this case. Broadly, and in my words, he reasoned that as perfection tends to be elusive [115], the point is whether the jury was thrown off course by the error [116], and this is to be assessed in the light of the whole of the judge’s instruction to the jury [122]. Here, trial counsel decided that the best course was to pass over the error [120], and the judge had made adequate correction of the mistake [126]. More controversially, Steward J added that “today’s juries have never been so well educated” [131]. Really? In Greek, Latin, Logic? The news media tell us that educational standards are in decline. People are leaving school less literate, less numerate, and consequently more ignorant than (if I may, following Steward J, use the rhetorical device of hyperbole) ever before. Anyhoo, Steward J was able to conclude that an error in directing the jury on the topic of credibility did not matter in this case where the issue was the credibility of one of the defendants.

So much simpler was the approach of the majority, although the existence of two joint majority judgments will make readers wonder why there were two judgments, and what any difference between them might be. Perhaps the difference is that Gordon and Edelman JJ are more discursive (for example at [93]-[95]).

Kiefel CJ and Gleeson J were sensitive to the possibility that the jury was (presumably despite its education) confused by the misdirection [37]. This risk of confusion took the issue beyond that addressed by the majority in the Court of Appeal, to whether on the whole of the record the convictions were inevitable [38].

Gordon and Edelman JJ took the same approach, setting out the law at [78]. They gave three reasons for concluding that the error was a significant one that could have affected the result ([101]-[104], but compare Steward J’s three considerations at [127]-[134]).

Again broadly, as this was a case where the credibility of a defendant’s evidence was material, the appellate court was not, by a majority, in a position to say, on the face of the record of the trial, that the convictions were safe. A new trial was therefore ordered.

Some people may wonder why, in view of the burden and standard of proof, a new trial was ordered. Perhaps the explanation is that it was the judge who threw the spanner into the works, and it was not the fault of the prosecution that the error occurred. It would be unfair to the Crown to deny it a properly conducted trial.