Ottawa, ON (Unceded Algonquin Anishnaabeg Territory): The Supreme Court of Canada released its decision yesterday in the joint appeals of Dare, Haniffa, Ramelson, and Jaffer v His Majesty the King. Arising from a police investigation targeting child luring on a popular classifieds website, the appeals represented an opportunity for the Court to consider the question of how the law of entrapment should apply to undercover police investigations conducted online. In its decision, a unanimous Court held that the investigation in question did not amount to entrapment. Although the BC Civil Liberties Association (BCCLA) took no position on the outcome of the appeal, we are encouraged that the Court considered our submissions in providing important guidance on the limits of police investigative powers in virtual spaces.
The BCCLA intervened to argue that undercover police investigations conducted in the virtual world pose unique threats to privacy and expressive freedom. State scrutiny into private and expressive activities online enhances the risk that individuals will self-censor and withdraw from online participation altogether. Further, we urged the Court to affirm that these important Charter interests are interconnected. The Court agreed on these points, emphasizing that online spaces have unique and distinct features that do not align with any simple analogue in the physical world.
The BCCLA also argued that the entrapment analysis should not depend on the value judgments of police or judges about the qualitative value of the activities targeted by the state. While the Court emphasized the impact of these investigative techniques on online spaces frequented by vulnerable minority groups, it stopped short of preventing the police or judges from assessing the social value of the expressive activities targeted.
Gerald Chan, counsel for the BCCLA, states: “We are encouraged that the Court recognized that the police must be especially careful in online undercover operations so that they do not overreach. This is particularly true when police target virtual spaces used by vulnerable groups such as racial, religious, or sexual minorities. It is disappointing, however, that the Court downplayed the expressive value of sexualized communications (even where legal) as falling outside the traditional categories of speech valued in a democratic society. In our view, it is dangerous to encourage the police to pass value judgements on the social value of the expression they are chilling, especially for those communities whose views and expression may fall outside of the mainstream.”
The BCCLA is represented by Gerald Chan and Spencer Bass of Stockwoods LLP.