It gets me wondering whether Creep Catchers cases may give rise to a defence of entrapment. I believe it might.
The theory behind entrapment is rooted in an abuse of process. Essentially, it is wrong for the state to coerce citizens into committing crimes, or to set out a plan by which they wind up committing an offence. As I described earlier, a morality test constitutes entrapment.
But where do groups like Creep Catchers fall on the issue?
The police are actively involved in stings like those set up by Creep Catchers. They conduct the same operations, but they do them within the bounds of the law. And they are required to follow strict protocol when they do these stings so they do not cross into the territory of entrapment. There is a good discussion of this in a case called R. v. N.J.S., where the police were found to have conducted their investigation properly.
Creep Catchers do not receive training in avoiding entrapment and undue pressure on people to become involved in these situations. And I do not doubt that there are some overzealous people involved in the organization who are going beyond the bounds of what would otherwise be permissible and placing pressure on people. Just as I have no doubt there are people who are involved in the organization who are trying to act within the bounds of the law and protect children. But that is, ultimately, the job of the police.
Creep Catchers should be careful as child pornography offences in Canada are widely-defined, and their vigilante justice may actually be an offence under our child pornography laws. Here’s the definition of child pornography from the Criminal Code:
163.1 (1) In this section, child pornography means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
There are exceptions for police officers conducting investigations who commit criminal offences. So sexual photographs representing someone under 18 would not offend if the police were doing it. But if a private citizen is creating such photographs, technically they are creating child pornography. Similarly, the pretend sexual communication in writing is also technically child pornography. The sexual purpose of the Code is not limited to the person who is creating the material; rather, it is simply that the material is for a sexual purpose.
Because entrapment is rooted in this notion of an abuse of process, it is arguable that there is a form of entrapment when a private person performs an action on behalf of the state, particularly where it involves vigilante justice. If you search CanLII you will be hard-pressed to find a case where a vigilante secures a conviction on a serious offence. Rather, vigilantes often attract criminal charges against themselves and the courts deliver harsher sentences to deter this type of conduct.
Further, the police and the Crown are not entitled to rely on unlawfully obtained evidence to secure a conviction. This counts where private citizens are performing state functions, including law enforcement, and break the law to obtain evidence. Police cannot expect citizens to break into a suspected murderer's house to steal the murder weapon if they are unable to get a warrant. It's the same here. Where that evidence is obtained by the creation and use of child pornography and methods that would otherwise amount to entrapment were a police officer engaging in them, our justice system cries out for the evidence not to be relied on in court.
To do otherwise would encourage more people to engage in unlawful conduct to trap others into committing crimes, and would effectively eliminate law and order in our country. Policing is best left to the police, who are accountable and trained about how to avoid issues of entrapment. While they are not perfect, they are what we have in our free and democratic society and what we must rely on in order to protect our system of justice. The police play as important a role as the judge, the Crown prosecutors, and defence lawyers.
So while those who are searching out sexual relationships with the underage are certainly in the wrong, a Court might be inclined to stay the charges because of the serious concerns that arise from these Creep Catcher investigations.