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].
