How do you define contempt?

Here are some recent quotes from the leader of the Surrey Creep Catchers (SCC), following the order from the Office of the Information and Privacy Commissioner of British Columbia, regarding the requirement to destroy all material relating to 2 complainants that were former ‘catches’ of the SCC;

“Dipshit Commissioner… Fucking idiot.  You ain’t shit…”  

“Drew Mcskinner [referring to Privacy Commissioner Drew McArthur] can throw his weight around all he wants…… He’s just a small fry trying to super size his shit. Buddy your [sic] a mcnugget. You have no power over me…”

“My name is Ryan Laforge and the OIPC CAN SUCK IT”

That Ryan LaForge would not obey an order from the Privacy Commissioner was a foregone conclusion.  The question was really whether he would do it loudly and belligerently enough to attract the attention of the Attorney General of British Columbia.  Because the AG can ask the Supreme Court for an order that he (LaForge) and the other members of the SCC obey the Privacy Commissioner’s order, and more generally, that they obey the PIPA law.  And if they don’t, it is criminal contempt, not civil.  So his own words might have changed his prospects from a hefty fine somewhere down the road (which of course he’d also ignore) to the possibility of incarceration, which could happen within a matter of days, once the AG decides to act.

So in the coming week or so, look for news that the Attorney General’s patience with Mr.LaForge’s little tantrum has ended, and he’s heading for a little ‘quiet time’ in his ‘thinking corner’.

If you want to encourage the Attorney General to act, drop him a note at JAG.Minister@gov.bc.ca.

Me? I’m making popcorn, because this will be very interesting, indeed.

More Police Success

Complied by RL Dakin
A sample of what the police actually do: 
“Police say 32 people have been charged with 78 offences in a six-day co-ordinated investigation into human trafficking across Canada…”
– Global News
==========
“Police have charged 14 Alberta men with online child sexual exploitation following a lengthy investigation… and together face a total of 33 charges…
… To date they have found up to 25,000 photos and videos. Each of those photos represents a real world victim…”
– CBC 
==========
“… Ontario’s Provincial Strategy to Protect Children from Sexual Abuse and Exploitation on the Internet has completed 32,808 investigations and laid 11,408 charges against 3,310 people, police said.
During that period, 870 child victims were identified in Ontario, and another 173 internationally, OPP said.
The child pornography probe also overlapped with incidents connected to human trafficking, allowing police to release nine minors who had been forced into the sex trade against their will.
Those children included 14, 15, and 16-year-olds, police said…”
– Globe and Mail 
==========
“… CETS has been credited for the arrest of 64 suspects and the rescue of 43 victims of child pornography or sexual exploitation, according to Michael Eisen, chief legal officer, Microsoft Canada…”
– IT World Canada 
==========
“… Since it was established in 2003, the VGT collaboration:
– rescued hundreds of children around the world from sexual abuse

– conducted numerous targeted law enforcement operations into online and offline offending, resulting in over 1000 suspects being investigated

– identified and held to account hundreds of child sex offenders worldwide.
Such examples of these operations include:
– Operation Endeavour (Jan 2014) – an organized crime group that facilitated the live streaming of on-demand child sexual abuse in the Philippines was dismantled …
– Operation Endeavor which began in 2012, has to date resulted in: 29 international arrests, of which 11 were part of the facilitation group in the Philippines; 15 children in the Philippines aged between 6-15 identified and safeguarded from sexual abuse; and over £37,500 ($60,000) identified as having been paid for the live abuse of children by the customer network.
– Operation Rescue (March 2011) – a global paedophile network consisting of thousands of online members was shattered, resulting in more than 200 children being safe-guarded and 184 offenders arrested across the globe…
– Operation Basket (December 2010) – resulted in approximately 230 commercial child sexual exploitation websites being taken down and five key members of the criminal organisation behind these web sites being arrested in the Ukraine
– Operation Elm (August 2008) – over 360 suspects were identified worldwide, over 50 UK arrests and at least 15 children safeguarded.
– Operation Chandler (June 2007) – more than 700 suspects were identified worldwide and more than 40 children safeguarded worldwide.
– Virtual Global Task Force
==========
“… The evidence was strong enough to put Stephen Keating behind bars for 110 years. Investigators rescued his 14 victims…”
– WNEP
==========
“… Members of the Alberta Law Enforcement Response Teams have arrested 10 people in connection with a child sexual exploitation sting…”
– CTV 
==========
“… Police say a dozen suspects have been arrested after a years-long child sexual exploitation investigation involving approximately 150 officers.
Quebec’s provincial police force Surete du Quebec say the suspects, who range in age from 27 to 74, took part in online discussions about sexual experiences with children and exchanged tips on the best place to meet kids without sparking suspicion…”
– CTV
==========
“… 303 people suspected of distributing and producing child sexual exploitation material online were arrested as a result of Operation Atlas… A further 106 victims were identified as a result of this global initiative…”
– Europol
==========
“… Eight Albertans are facing child sexual exploitation charges following a seven month-long investigation by the Alberta Law Enforcement Response Teams (ALERT)…”
– Global News
==========
“… Hamilton police have charged nine individuals in southern Ontario following an investigation …. Over 100 devices were seized…”
– Global News
==========
“Nearly 400 children have been rescued and 348 adults arrested following an expansive and “extraordinary” international child pornography investigation, Canadian police announced Thursday…
… 50 people were arrested in Ontario, 58 in the rest of Canada, 76 in the United States, and 164 internationally…”
– NBC
==========
The Canadian Centre for Child Protection has a new tool in its fight to find and eliminate child sexual abuse material on the internet.
On Tuesday, the Winnipeg-based agency introduced Project Arachnid, an automated system that searches links on websites previously reported to Cybertip.ca.
The innovative tool detects content at a speed exponentially faster than current methods, according to CCCP, which said in a recent six-week trial period, Project Arachnid:
• Processed over 230 million web pages.

• Detected over 5.1 million unique web pages hosting child sexual abuse material.

• Detected over 40,000 unique images of child sexual abuse.
– CBC
==========
“A central Alberta man has been sentenced to nine years in jail for sexually assaulting a teenage boy… Pixley was sentenced to three years on each count to be served consecutively.”
– CBC
==========
“A Halifax-area man is facing child luring charges after police searched a home this week… Paul was charged with luring a child and providing sexually explicit material to a child…”
– Metro News

==========
“On Nov. 18, the provincial Internet Child Exploitation unit with assistance from the RCMP Technological Crime Unit and Cumberland District RCMP searched a home in Athol.
Darryl Wayne Baxter was arrested at the scene without incident.
In Nova Scotia, it is mandatory for citizens to report suspected child pornography. This means that anyone who encounters child pornography material or recordings must report it to the police.
– Cumberland News Now

==========
“… York region police said 104 men have been arrested over a period of several years after police posed as underage sex workers online. The officers posed as children between the ages of 13 and 16.
Out of the completed cases, 87 per cent of suspects (35 out of 40) either pleaded guilty or were found guilty in court.
Sixty-four cases are still before the courts…”
– CTV News
==========

“A 40-year-old man from Ferndale, Wash. has been sentenced to six and a half years in prison for secretly trying to cross the border last May to have sex at an Abbotsford hotel with someone he thought was a 12-year-old girl.
– Abbottsford News 
==========
“A civilian employee of the Edmonton Police Service is facing child exploitation charges following an investigation launched in February by Victoria Police.
– Victoria Buzz
==========
“Police in southwestern Ontario say 78 people have been arrested in a human trafficking investigation.
… a total of 129 criminal code charges were laid, including four human trafficking charges and 24 drug charges. Thirty-five alleged customers were also charged…”
– CTV News

==========
“Dozens of people have been arrested, and 16 victims removed from exploitative situations, in a cross-country effort to crack down on human trafficking.
– Globe and Mail

Is “Creep Catching” Legal?

Is “Creep Catching” Legal?

An Overview of Criminal, Civil and Regulatory Laws Relevant to

Online Anti-Pedophile Vigilante Groups

By Craig Jones, Q.C.[1]

OVERVIEW

In this article, I explain the Creep Catchers’ usual modus operandi and the “internet luring law” that underpins their approach. I then describe public law issues around entrapment, privacy and the regulation of “private investigators”. I go on to touch on some of the allegations made against creep catchers connected to the production and possession of child pornography, harassment, and defamation. Finally, the implications of the confrontations themselves are described through the lens of laws governing wrongful imprisonment, “citizen’s arrests”, and assault.

Who Are the Creep Catchers and How Do They Operate?

Creep Catcher” groups are collections of internet activists who seek to expose and punish those who would prey on children online. A usual Creep Catchers “sting” works this way: a “decoy” advertisement is placed on an adult dating or friendship website such as Craigslist personals or Plenty of Fish. Initially, the “decoy” explicitly or impliedly presents herself as an adult. Responses pour in, and online conversations ensue. At some point, the “decoy” reveals that she (or sometimes he) is not an adult, but rather a minor, usually between 12 and 15. If the respondent does not end the conversation, he becomes a “target”. The continuing conversation may be steered by one party or the other toward sex, or it may remain non-sexual. Some “stings” last only minutes before a meeting is arranged; others might go on for weeks.

Once a meeting is arranged at a public place, the “target” arrives and is confronted by the Creep Catchers, armed with smartphone cameras. A few Catchers carry themselves with restraint at these confrontations; many, spectacularly, do not. In the latter cases, the “target” is generally taunted, berated, sometimes verbally or physically restrained and often chased. The whole thing is captured on video and “blasted” over the Internet using social media platforms such as Facebook and YouTube. Increasingly the confrontations are broadcast as they happen, as hundreds of viewers swarm and offer messages of encouragement. Sometimes, the Catchers and their online supporters follow up, “outing” the “creep”, contacting his friends, employers and family members.

WHAT IS THE INTERNET LURING LAW?

The legal foundation for a Creep Catchers “sting” is an amendment to the Criminal Code that made it a crime for anyone to use the Internet for the purposes of “child luring”. “Luring” in the amended Code means communicating electronically with a minor for the purpose of committing one of a number of (already prohibited) offences, such as sexual assault and kidnapping.[2] The new law made prosecution of online child predators easier, because police did not have to wait until an accused had taken the first concrete steps toward the commission of an offence, thus crossing the “preparation/attempt divide”. It also facilitated police sting operations, because it introduced a presumption that the accused believed a person to be underage if they identified themselves as such.[3]

But criminal (i.e. sexual) intent is never simply assumed under the Criminal Code. It is not enough to say, as Catchers sometimes do, that there is no legitimate reason for an adult to be talking to a child on the Internet. Some Catchers consider it the legal duty of an adult to immediately stop communicating with the Catchers’ online “decoy” once the latter indicates that he or she is younger than 16, even if the conversation is purely innocuous. That may be sound social advice in many situations, but there is no legal requirement to follow it.

In some cases, the Catchers invite their targets to meetings (or to accept meeting invitations) without any explicit or implicit sexual talk. To be fair to the Catchers, this does not rule out the target’s being guilty of a “luring” offence. It is certainly possible, as the Supreme Court of Canada recognized (in obiter) in R. v. Legare,[4] that the “luring” of a child could occur even through communications are non-sexual, because even facially innocent conversations have been known to be used by predators in pursuit of an eventual illicit relationship. But the court was clear that conviction would still require a totality of evidence proving beyond a reasonable doubt that the accused’s intentions were to assault or kidnap the child. The law allows for the fact that most conversations, and encounters, between adults and minors are innocent: most people who interact with teenagers do not do so in an effort to molest them.

Do the Creep Catchers Operate Legally?

Entrapment

Based on the selected evidence released by the Catchers (usually the confrontations are broadcast but the “chatlogs” are not), it certainly appears that some, if not most, of their targets are indeed persons intent on committing crimes against children. But it is sometimes observed that Catchers may be creating child predators instead of simply identifying them. In this regard the “bait and switch” tactic of placing an ad as an adult and then “revealing” the “child’s” “true age” might be described as entrapment: Catchers are looking for the criminally inclined, but in taking this approach may settle for the weak-minded, the needy or the simply acquiescent. Justice Lamer (as he then was) wrote in R. v. Mack that “the state does not have unlimited power to intrude into our personal lives or to randomly test the virtue of individuals”.[5] This recognizes the fact that many criminals are opportunists, who will commit crimes if the chance is presented and the incentives sufficient, but who, if left to their own devices, would not.

Entrapment occurs when “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity”.[6] Yet this precisely describes the ordinary Creep Catchers “sting”, except that Creep Catchers are not “authorities”. As such, the Catchers may consider themselves immune to accusations of entrapment so long as they remain at arm’s length from the police, as they apparently have. But, as Vancouver criminal lawyer Kyla Lee has observed, this is a dubious reliance and it may well be that any prosecution based on Catchers’ stings is doomed from the beginning as an abuse of process.[7] This will be far more likely if the Catchers are deemed to be performing a “government function” for Charter purposes, which is discussed below in the section on “Citizen’s Arrest”.

Privacy Laws

When they place their initial “bait” advertisement and begin to receive responses, the Catchers appear to be in prima facie violation of the Personal Information Protection Act (“PIPA”). That Act requires informed consent for the collection, use and disclosure of personal information and forbids deception in obtaining that consent.[8] Personal information is broadly defined as any information connected to an individual.

Now of course, many people go onto adult dating sites using deceptive ads, or deceptive communications, without breaking the law. That’s because individuals in their private affairs are not governed by PIPA, which applies to private “organizations” – mainly corporations and societies, but also unincorporated associations such as clubs and other structured and organized groups. There are limited exceptions in PIPA for journalism[9] and legitimate investigations into breaches of the law,[10] but it would seem a stretch to describe the Catchers’ activities as falling within either exception. If they do not, then it seems that the groups’ practice of “trawling” for responses using deceptive personal ads constitutes an offence against the hundreds, perhaps thousands, of individuals who respond, whether or not any of them become engaged in incriminating conversations.[11]

The consequences of a PIPA offence are serious: fines of up to $100,000 can be imposed on an organization, and $10,000 on individuals, and the Information and Privacy Commissioner can make a wide range of orders which are enforceable through the Supreme Court. There are also provisions permitting individuals to pursue follow-on lawsuits once the Commissioner has determined that a breach has occurred. These remedies are in addition to the civil cause of action set out in section 1 of the Privacy Act RSBC 1996 c. 373, which makes it a tort, actionable without proof of damage, to wilfully violate the privacy rights of another.

Breach of Licensing Requirements

By virtue of section 2 of the Security Services Act, SBC 2007 C30, no one is permitted to engage in the private investigation without a licence. Doing so is an offence under ss. 2 and 44(1). A person is regarded as a private investigator if he or she seeks or obtains “information about… crimes, offences, contraventions or misconduct” or allegations thereof “for consideration” (that is, for payment).

Although most smaller Creep Catcher operations seem to consist largely of volunteers, others do solicit and accept “consideration” to further their activities. The Surrey Creep Catcher group, for instance, raises funds from a variety of sources including sales of branded clothing, donations, and fundraiser ticket sales.  The group’s president has confirmed that he pays himself a salary from these funds.[12]

Creation, Possession, and Distribution of Child Pornography

If and when explicit sexual conversations ensue online between the “decoy” and the “target”, the resulting written record probably constitutes child pornography as it is defined in the Criminal Code.

Most people think of child porn as being pictures of naked children, or of children engaged in sex acts. But the definition in the Criminal Code is much broader: Among other things, the child porn law criminalizes the making, accessing, possession, transmission or distribution of “any written material … that advocates or counsels sexual activity with a person under the age of eighteen years” where the sexual activity depicted would be an offence.[13]

In R. v. Sharpe, the Supreme Court clarified that this definition captured material “seen as ‘actively inducing’ or encouraging the described offences with children”, material that “sends the message that sex with children can and should be pursued.”[14]  Even if the “lure” does not say anything sexual, provided that someone in the conversation is inducing or encouraging criminal sex with a minor makes the material illegal.

Does it matter that the child pornography is being created or possessed by the Catchers for “legitimate” purposes? In fact, no. The question is not whether the accused is advocating or counseling child sexual abuse, but whether the material is doing so. Having “in his or her own mind, a ‘genuine, good faith reason’” for possessing child pornography is not enough for an accused to escape conviction.[15]

Police investigators can create or possess child pornography while ensnaring a predator, because they enjoy a license to commit relatively minor crimes when they are investigating more serious ones [16] but there is no such immunity for vigilante activists in the Code,[17] and indeed anyone who reads explicit Catcher chat logs online would probably also be guilty, of “accessing” child pornography.

Criminal Harassment

Various Catchers’ Facebook pages feature supporters’ posts calling for the execution of “creeps” and “goofs”, although the groups themselves usually disavow, and occasionally actively discourage, violence. One target of the Edmonton Creep Catchers group, a trans-sexual woman with mental disabilities, committed suicide a month after being targeted and brutally harassed online and in person (she protested her innocence until the end).[18] Another target, a man with cerebral palsy and obvious cognitive deficiencies, was chased by the Surrey Creep Catcher group into traffic (in his wheelchair) where he was struck by a car.[19] Yet another man was pursued to a SkyTrain platform, challenged to a fight and told to jump in front of the oncoming train[20] (counseling suicide remains a serious criminal offence [21]). Others have been driven from their jobs and homes (things that are actively encouraged by most Catchers groups). Sometimes the online chat threads reveal the Catchers and their supporters sharing information about the “creep’s” family, friends and employment, and the mostly anonymous mob descends just as resolutely on the innocent as on the guilty. At some point, this may become criminal harassment. However, the actual luring of a target, to a confrontational meeting, likely does not in and of itself meet the Code’s threshold. Similarly, if violence is threatened or implied by a Catcher during a confrontation, that could be a criminal assault, but most of the video-recorded confrontations do not rise to this level either.

Defamation

Catchers are also, like everyone, subject to civil claims for defamation if they unfairly brand an innocent “target” as a child sexual predator; indeed it is difficult to imagine a more damaging allegation in today’s society. Of course, truth is an absolute defence to defamation actions, but once the defamation claim is filed, the burden lies with the alleged defamer to prove that their statements or innuendo were in substance factually correct, and this may be very difficult to do in many of the Catchers’ “busts”. This is especially so given the groups’ generally clumsy, slipshod and incomplete investigations. Catchers also might have defences of “qualified privilege” and “publication in the public interest”, but only if they are careful to develop a well-founded and good-faith belief in their statements; they cannot be malicious or reckless in casting aspersions.

It is not difficult to see, given the time, expense, and embarrassment involved in bringing a claim to an almost certainly empty conclusion, why there has not yet been a flurry of defamation actions. But the Creep Catchers might have other legal concerns because their activities can have severe consequences.

False Arrest and Wrongful Imprisonment

What of the confrontations themselves? When Catchers have lured their targets to a meeting place (almost always a coffee shop or fast-food restaurant), they sometimes threaten to “blast”—i.e., publicly embarrass or humiliate—the target if they do not comply and sit still for an on-camera dressing-down by Catchers. Similar threats of embarrassment have been enough in civil contexts to found claims of false arrest and wrongful imprisonment,[22] which is also a crime.[23]

In other cases, the Catchers have gone much further, and physically grabbed the accused to prevent him from leaving. This is criminal assault and also the tort of battery if it is done without lawful justification (see Citizen’s Arrest, next).

Citizen’s Arrest

Several recent Creep Catcher ‘stings’ have culminated in “citizens’ arrests”.[24] In one widely publicized case, charges were laid against a realtor who had allegedly arranged to meet with a woman for the purpose of having sex with her six-year-old daughter.   During the confrontation, the Catcher restrained the man from leaving until police had arrived. Police also arrested the Catcher, Surrey Creep Catcher president Ryan LaForge, to investigate the “target’s” complaint that he had been assaulted; so far, no charges have been approved against him arising from the “arrest”. In the two weeks following that notorious incident, “citizens’ arrests” have become a regular feature of Creep Catcher confrontations, and LaForge and an accomplice were arrested when another suspect was violently restrained.

In Canada, citizens have the right to perform arrests in limited circumstances, such as where an indictable offence is in progress or a suspect is being pursued by the police. In such circumstances, the person arresting may use as much force as is reasonably necessary to restrain the suspect until police arrive.

In the case of the arrested realtor, it is certainly arguable that, at the time of arrest, the force used (some shoving and verbal threats) was reasonable to prevent the suspect from leaving. But a more disturbing aspect of the incident reports that members of the group had gone to the police prior to the confrontation. According to these accounts, the police had offered to take the Catchers’ evidence of criminality and investigate, but the Catchers had preferred to go ahead with the confrontation and arrest prior to turning the matter over. The Supreme Court of Canada has said that an unnecessary arrest, even if permitted under a statute, might constitute assault: Any arresting citizen can only use reasonable force, and the Court said ““reasonable force”… may have to have regard not only to what force is necessary to accomplish the arrest but also to whether a forcible arrest was in all the circumstances a reasonable course of action in the first place.”[25]

Another uncertainty introduced at the moment a “citizen’s arrest” is the application of the Canadian Charter of Rights and Freedoms. Some Canadian Courts have held that a citizen’s arrest is a government function (as it is performing a service to the Crown pursuant to statutory authority), and therefore that the Charter applies immediately upon arrest.[26] If this is so, the circumstances of the arrest and subsequent detention will be held to the high standards expected of state actors. It is unlikely that the Creep Catcher’s typical treatment of suspects post-arrest (generally, hurling insults and invectives while live-broadcasting on Facebook, without informing the suspect of the crime for which he is being arrested or the right to retain counsel without delay, and without the customary caution regarding self-crimination) would be found sufficient. And a larger unanswered question would be whether, if a “sting” were intended all along to result in an arrest by the group, the Charter should apply to all the group’s actions leading up the arrest.

 

[1] LL.B (UBC), LL.M. (Harvard), of the Bar of British Columbia, Professor of Law at Thompson Rivers University.

[2] Criminal Code, s 172.1.

[3] Police forces have operated such stings for years: see for instance R. v. El-Jamel, 2010 ONCA 575.

[4] 2009 SCC 56.

[5] [1988] 2 SCR 903 at para 79.

[6] R v Nuttall, 2016 BCSC 1404 at para 546, Bruce J (summarizing Mack, ibid).

[7] Kyla Lee, “Creep Catchers: Vigilante Justice, Entrapment, and Committing Offences” (1 October 2016), online: <http://www.kylalee.ca/blog/creep-catchers-vigilante-justice-entrapment-and-committing-offences>. Lee also pointed out the possibility that Catchers and their targets are often engaged in the production of child pornography, discussed further below.

[8] Personal Information Protection Act, SBC 2003, c 63, s 6 [PIPA].

[9] Ibid, s 3(2)(b).

[10] Ibid, s 12(1)(c).

[11] There is presently an investigation underway of Surrey Creep Catcher by the Office of the Information and Privacy Commissioner, so it may be expected that within weeks or months a decision will be made regarding the application of PIPA to the Creep Catcher’s activities: “Surrey Creep Catchers under investigation by B.C. privacy watchdog”, The Province February 20, 2017.

[12] “Is money clouding the motivations for “Creep Catchers”? CTV W5, February 20, 2017.

16 Criminal Code, ss 163.1(1)(b)–(c).

[14] R. v. Sharpe 2001 SCC 2 at para. 56.

[15] R v Jeffrey, 2012 SKPC 12 (CanLII) at para. 30.

[16] Criminal Code, s 25.1(8).

[17] The Criminal Code does exempt production and possession etc. where it “has a legitimate purpose related to the administration of justice.” But this section is unlikely to apply to private citizens whose purpose is to impose extra-legal punishments, and could not apply in any event to Catcher supporters who “access” the material out of prurient interest.

[18] Sheena Goodyear, “Creep Catcher Vigilantes Under Fire Over Death of Mentally Ill Woman in Video”, CBC News (11 October 2016), online: <http://www.cbc.ca/news/canada/edmonton/creep-catcher-katelynn-mcknight-vigilante-justice-1.3794017>.

[19] David Molko, “Creep Catchers Crossed ‘Many Lines’ Targeting Man with Disabilities: Advocate”, CTV News (22 November 2016), online: <http://bc.ctvnews.ca/creep-catchers-crossed-many-lines-targeting-man-with-disabilities-advocate-1.3172215>.

[20] As of this writing, the video is still displayed at “Surrey McCatch”, the current main Facebook page of the group “Surrey Creep Catcher”.

[21] Criminal Code, s 241.

[22] See e.g. Chaytor et al v London, New York and Paris Association of Fashion Ltd and Price (1961), 30 DLR (2d) 527 (Nfld SC); Campbell v SS Kresge Co Ltd and Williamson (1976), 21 NSR (2d) 236 (SC (TD)); Kovacs v Ontario Jockey Club (1995), 126 DLR (4th) 576 (Ont Ct J (Gen Div)).

[23] Criminal Code, s 279(2).

[24] Criminal Code, s 494(1).

[25] R v Asante-Mensah, 2003 SCC 38 at para. 74.

[26] R. v. Lerke 1986 ABCA 15.

A Practical Guide to Creep Catchers Defamation

A Practical Guide to Creep Catchers Defamation
by Craig E. Jones, Q.C.

Introduction and Disclaimer

This is not meant to be a comprehensive review of the law of defamation, but rather a basic guide to the applicable rules and your options in the context of the Creep Catcher phenomenon. I cannot stress enough the importance of getting legal advice as soon as possible: every defamation case is unique and fact-specific; this document is meant only as an overview of the law as it may apply in Creep Catchers cases.

In British Columbia, you must file defamation cases in the Supreme Court – that is, you cannot bring a Small Claims Court case for defamation. Note that the Libel and Slander Act also requires that the case be filed in either the County (judicial district) where (a) the plaintiff resides or (b) the Defendant is based. Make sure that your lawyer (if you retain one) is aware of this.

What is Defamation?

Defamation is the publication of words that are harmful to a person’s reputation; that is, things that are said that tend to bring you into disrepute with other members of the community.

What is not defamation? Simple insults are not defamation, nor are characterizations of your behaviour that might be objectionable. It is impossible to comprehensively define a test without knowing particular circumstances, but it is important to realize that not everything said that is nasty is actionable, no matter how much it makes your blood boil: we are all expected to put up with insult, even some malicious insult, in the cut-and-thrust of social debate.

Also, defamation requires that the slanderous words be made, not just to you, but to at least one other person. This is called “publication”. With respect to statements made over the internet, this is a given, but keep in mind that large and highly public defamation is considered to be much more harmful than one made only to only a few Facebook “friends”.

There are two basic categories of defamation: libel and slander. Slander is spoken defamation: because it is ‘transitory’, you cannot sue for it unless you can prove that you have suffered harm. There are a few exceptions to this general rule, but because we are not focused here on spoken words I needn’t discuss them any further.

Libel is written defamation, or words that are otherwise published in some tangible form. Electronic broadcasts, such as internet videos, are also considered to be libel. Facebook posts, twitter messages, and so on, are libel. The main distinction from slander is that libel is actionable without having to prove damage; it is assumed to be harmful.

In the context of the Creep Catchers debate, libel might include anything said on the internet and accessible to at least one other person which wrongly suggests that you are:

  • A pedophile;
  • A child sexual predator; or
  • A person who endorses, supports or encourages the commission of criminal offences against children.

So being directly or indirectly called a “pedo”, “pedo lover”, “pedo supporter” are all defamatory statements. The basic question the court will ask is “what is the ordinary meaning of the words spoken”?

However, it is also possible to sue for “innuendo”, which is when one either uses ‘code words’ (“creep”, “skinner”, “goof”) which are, in context, taken to indicate a pedophile or child predator, or otherwise suggest, without saying, that you are one (like “I know why Mr. X is so quick to defend pedophiles… he obviously has skeletons in his own closet?”, or “that guy is right now sitting in his car outside a school with his pants down”, etc.).

There are available defences. If the Defendant can show, for instance, that the words were, in their essence, true, your claim will fail. It may also fail if the Defendant successfully argues that the statements were “fair comment” or published “in the public interest”. Courts also allow considerable latitude for intemperate, even false, statements made in response to attacks during a public debate.

In my overall opinion, falsely accusing a person of being a child sexual predator or a supporter of “pedos” goes beyond legitimate comment or response, however every case is context- and fact- specific. I cannot emphasize enough the importance of getting good advice as early as possible from a lawyer conversant in defamation law.

Who is Liable?

The person who makes a defamatory statement is of course liable. Also, if a person maintains a web page or social media platform and allows others’ defamatory posts to be made there (and who does not remove them in a reasonable time) may also be liable for the defamation. In most cases, the companies that operate the social media sites will not be responsible, nor will people who passively link to defamatory postings.

What is the Remedy?

The principal remedy for defamation is damages; that is, money that the defendant is ordered to pay for the harm caused. If the defamation is particularly heinous, extra damages (called “punitive” or “exemplary” can be awarded. You can also be awarded “costs”, which is an amount to (usually only partially) compensate you for the expense of pursuing your claim.

I caution that awards in defamation cases are low, usually only several tens of thousands of dollars even in quite serious cases. Rewards in the hundreds of thousands of dollars are exceedingly rare, and usually reserved for cases in which people are accused of profoundly serious crimes, such as genocide or murder.

Keep in mind also that if you lose your case, you may be responsible for the Defendant’s costs, and these can be thousands of dollars.

OK, I Believe I’ve Been Defamed. What Now?

It is generally not advisable to descend into online debate with a person who has defamed you. These can get heated, and your interests are not served if you yourself become intemperate. I have five further pieces of general advice:

First, document and record everything and keep a diary. Screen shots, downloaded videos, everything you can find. Not just the defamatory statements, but also:

  • Any other statements made by the defamer or others online that affect your reputation, if they appear linked to the defamatory statements;
  • Any evidence that the defamation is causing you harm. Have friends/family indicated awareness of the statements? Has your employment or business been affected? Have your children heard about it in school? Have you received threats? Have you had to consult with physicians, counsellors, etc.?

Second, if you can afford to, consult a lawyer right away. He or she can provide some analysis of the statements and the prospect of success. Many lawyers will offer a free initial ½ hour consultation. Before taking any action, discuss with the lawyer:

  • Your prospects of success on the merits of your claim;
  • The time that will elapse before any remedy is granted – cases often take months and even years to work their way through the civil justice system, although interim or “interlocutory” injunctions can be sought very quickly;
  • The likelihood of recovering damages or obtaining a permanent injunction a court order restraining further publications and/or for removal of the defamation from web pages); and
  • The risk of more harm to your reputation that may occur when you call further attention to the defamation by filing a lawsuit.

Third, choose your defendant carefully. Ideally, you will want to sue people who have the money to satisfy a judgment if you get one. Does the defendant have property that can be seized and sold to satisfy a judgment? Are they insured? Do they have a job so that their wages can be attached to satisfy a damages award? A lawsuit can be filed for a few hundred dollars, but litigating a case to conclusion can be expensive, and even if you win, collecting from defendants can be protracted and frustrating. Legal fees can easily run into the tens of thousands of dollars for even a straightforward case, and recoveries are relatively low, often less than what is spent pursuing the claim. Lawyers generally will not take defamation cases on “contingency” (that is, for a portion of the eventual reward), unless they are confident that there will be a recovery justifying their time. You may be able to find a lawyer who will act pro bono (without fee), but you should not expect this.

Fourth, consider demanding a retraction and apology immediately. This can be combined with an offer to settle (you can demand an immediate payment from the defamer, and this may be advantageous if it is rejected and you later win). An apology and retraction should be at least as widely disseminated as the original defamatory statement.

Finally, think carefully about your own position. Defendants in defamation cases may try to prove that your reputation hasn’t suffered because it is poor to begin with. They may also argue that the words spoken were, in their essence, true. In other words, defamation cases often cast a spotlight on the virtues and vices of the victim. If your background is less than lily-white, you can expect to be dragged through the mud should the matter proceed to trial.

This is particularly relevant if you have been the “target” in a creep catcher “sting”. Even if you are innocent of criminal wrongdoing, ask yourself whether the “chat logs” or other things you have done or said reveal evidence to support accusations that you acted inappropriately toward a child; if they do, it will almost never be in your interest to bring a lawsuit. Also consider whether anything you’ve said against the defendant might leave you vulnerable to a counter-suit.

On the other hand, if your reputation is particularly vulnerable (if, for instance, your livelihood involves working around children), your claim may be stronger.

Conclusion

A defamation case is not to be initiated lightly. It is a difficult, arduous, and often in the end frustrating process. With the Creep Catchers, legal proceedings have often triggered harsh retaliation from the defendant or his supporters. Filing a lawsuit may even, in the end, cause more harm to you than good. But sometimes it is the least bad of all possible options, especially when the main alternative is to do nothing as your reputation is sullied, essentially forever, on the internet.

Citizens Arrest – What You Need To Know

What You Need to Know About Making a Citizen’s Arrest

Whenever possible, you should report wrongdoing to the police instead of taking action on your own. Police officers are equipped with the proper intervention tools and trained to deal with incidents which may escalate to become violent.

Important Considerations

Making a citizen’s arrest without carefully considering the risk factors may have serious unintended consequences for you and others involved. In most cases, an arrest consists of either actually seizing or touching a person’s body in an effort to detain them.

Before deciding whether to make a citizen’s arrest, you should be aware of the Citizen’s Arrest Laws and consider the following:

  • Is it feasible for a peace officer to intervene? If so, report the crime to the police instead of taking action on your own.
  • Your personal safety and that of others could be compromised by attempting an arrest. Relevant considerations would include whether the suspect is alone and whether they possess a weapon.
  • Will you be able to turn over the suspect to the police without delay once an arrest is made?
  • Do you have a reasonable belief regarding the suspect’s criminal conduct?

Making a Citizen’s Arrest

If you do decide to make a citizen’s arrest, you should:

  • Tell the suspect plainly that you are making a citizen’s arrest and that you are holding him or her until police arrive.
  • Call the police.
  • Ask explicitly for his or her cooperation until police arrive.
  • Avoid using force, if at all possible, and use it to the minimum possible otherwise.
  • Do not question or search the suspect or his or her possessions. Your purpose is only to temporarily detain him or her until police arrive.
  • When police arrive, state the plain facts of what happened.

Citizen’s Arrest Laws

In most cases, you must find a person either in the act of committing a crime, or escaping from and freshly pursued by persons who have lawful authority to arrest that person, in order to lawfully make a citizen’s arrest. In particular, if you are arresting a person for an indictable offence, which is the most serious type of offence and includes violent offences, you can only make the arrest at the time you witness the person committing the offence. It is against the law to arrest a person after any lapse in time for having committed an indictable offence, unless it is relation to your property.

In special circumstances of any type of criminal offence that is committed on or in relation to your property, you may either:

  • arrest a person you find in the act of committing a crime; or
  • arrest a person within a reasonable period of time after having found that person committing a crime.

To be eligible to make a citizen’s arrest for a crime on or in relation to property, you must be one of the following:

  • the owner of the property;
  • in lawful possession of the property; or
  • have been authorized by the owner or the person in lawful possession of the property.

The law allows you to use as much force as is necessary for the purpose of making a citizen’s arrest, as long as you are acting on reasonable grounds. However, any force you use must be tailored to the circumstances, and you are criminally responsible for any excess force you use. In addition to the potential for a criminal prosecution, you may also face a civil lawsuit in relation to your conduct and any injury you cause.

The law requires that when making a citizen’s arrest, the arrested individual must be delivered to a police officer without delay. If you make a citizen’s arrest and do not call the police as soon as possible, the arrest might be ruled illegal, and you could face civil or criminal consequences.

Correctly identifying a suspect

In the special circumstances of making an arrest “within a reasonable time after” observing an offence (as opposed to while the offence is in progress), you are strongly urged to exercise additional care in confirming the identity of the suspect.

It is always extremely important to correctly identify a suspect and their criminal involvement. If you make a citizen’s arrest at the very time a person is found committing a crime, the correct identification of the suspect will not likely be called into question.

However, if you make an arrest “within a reasonable time after” observing the offence, the accuracy of the identification of the suspect may be called into question.

You need to be conscious of the fact that situational factors such as the presence of a weapon, the number of individuals involved, environmental factors and heightened stress levels can negatively affect your recollection of a past incident and your ability to correctly identify a person you have previously seen committing an offence. Even if you genuinely believe that you have correctly identified the suspect after the crime was observed, the risk of mistaken identity is real, and must not be minimized.

If the person you attempt to arrest is the wrong person, the situation is potentially very dangerous. The person being arrested will not understand why they are being detained and may not submit to the arrest. In these circumstances, there is a real risk that if you arrest the wrong person, you could provoke a violent confrontation, and risk injury or death.

Warning

A citizen’s arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, private citizens are neither tasked with the duty to preserve and maintain public peace, nor properly trained to apprehend suspected criminals. Exercise extreme caution when attempting to make a citizen’s arrest.

 

Copied from the Department of Justice (Canada) Website:
http://www.justice.gc.ca/eng/rp-pr/other-autre/wyntk.html

 

Police Success

A common refrain from Creep Catchers and their supporters is “The Police Aren’t Doing Anything!”. This should help put that particular narrative to rest.

December 2018

Minor hockey coach charged with luring a child, sexual exploitation

October 2017

Ontario Pedophile Who Abused Daughters, Nieces Jailed Indefinitely (Graphic)

October 2017

New Zealand police help arrest Winnipeg man for child porn

September 2017

Burlington man, 28, arrested and charged for child luring

September 2017

Winnipeg police arrest man on child pornography charges

August 2017

Man from Sherwood Park day home arrested on child pornography charges

August 2017

Police Arrest Male in Child Luring Investigation

July 2017

Toronto man charged with child luring after ad posted online targeted minors: police

July 2017

16 people arrested on child pornography charges in Alberta: ALERT

June 2017

Hamilton police charge man with child luring

May 2017

Gatineau police arrest child luring suspect

April 2017

US man who flew to Calgary to have sex with 13-year-old girl sentenced to 7 years

April 2017

Nine months and probation for child luring offence

April 2017

Windsor volleyball coach charged with child porn, extortion offences

April 2017

Two LaSalle Men Face Charges in Child Pornography Investogation

January 2017

Calgary Man Arrested for Luring Utah Girl

January 2017

Edmonton Man Attempted to Arrange for Sex with 11-year-old

January 2017

UPDATE: Fourteen Arrested in Operation ICE Reign

Covert investigators arrest man after child porn investigation

RCMP arrest 18-year-old from Saulnierville on child pornography charges

RCMP arrest two men in separate child porn investigations

Two Lethbridge Men Among Ten People Arrested in Child Sexual Exploitation Sting

OPP charge 80 linked to internet child pornography after days of raids

Depression (differential diagnoses)

Depression, one of the most commonly diagnosed psychiatric disorders,[2][3] is being diagnosed in increasing numbers in various segments of the population worldwide.[4][5] Depression in the United States alone affects 17.6 million Americans each year or 1 in 6 people. Depressed patients are at increased risk of type 2 diabetes, cardiovascular disease and suicide. Within the next twenty years depression is expected to become the second leading cause of disability worldwide and the leading cause in high-income nations, including the United States. In approximately 75% of completed suicides, the individuals had seen a physician within the prior year before their death, 45–66% within the prior month. About a third of those who completed suicide had contact with mental health services in the prior year, a fifth within the preceding month.[6][7][8][9][10]

There are many psychiatric and medical conditions that may mimic some or all of the symptoms of depression or may occur comorbid to it.[11][12][13] A disorder either psychiatric or medical that shares symptoms and characteristics of another disorder, and may be the true cause of the presenting symptoms is known as a differential diagnosis.[14]

Many psychiatric disorders such as depression are diagnosed by allied health professionals with little or no medical training,[15] and are made on the basis of presenting symptoms without proper consideration of the underlying cause, adequate screening of differential diagnoses is often not conducted.[16][17][18][19][20][21] According to one study, “non-medical mental health care providers may be at increased risk of not recognizing masked medical illnesses in their patients.”[22]

Misdiagnosis or missed diagnoses may lead to lack of treatment or ineffective and potentially harmful treatment which may worsen the underlying causative disorder.[23][24] A conservative estimate is that 10% of all psychological symptoms may be due to medical reasons,[25] with the results of one study suggesting that about half of individuals with a serious mental illness “have general medical conditions that are largely undiagnosed and untreated and may cause or exacerbate psychiatric symptoms”.[26][27]

In a case of misdiagnosed depression recounted in Newsweek, a writer received treatment for depression for years; during the last 10 years of her depression the symptoms worsened, resulting in multiple suicide attempts and psychiatric hospitalizations. When an MRI finally was performed, it showed the presence of a tumor. However, she was told by a neurologist that it was benign. After a worsening of symptoms, and upon the second opinion of another neurologist, the tumor was removed. After the surgery, she no longer suffered from depressive symptoms.[28]

https://en.wikipedia.org/wiki/Depression_(differential_diagnoses)

Ephebophilia

Ephebophilia is the primary or exclusive adult sexual interest in mid-to-late adolescents, generally ages 15 to 19.[1][2] The term was originally used in the late 19th to mid 20th century.[2] It is one of a number of sexual preferences across age groups subsumed under the technical term chronophilia. Ephebophilia strictly denotes the preference for mid-to-late adolescent sexual partners, not the mere presence of some level of sexual attraction.

In research environments, specific terms are used for chronophilias: for instance, ephebophilia to refer to the sexual preference for mid-to-late adolescents,[1][3] hebephilia to refer to the sexual preference for earlier pubescent individuals, and pedophilia to refer to the sexual preference for prepubescent children.[3][4] However, the term pedophilia is commonly used by the general public to refer to any sexual interest in minors below the legal age of consent, regardless of their level of physical or mental development.[5]

https://en.wikipedia.org/wiki/Ephebophilia

Hebephilia

Hebephilia is the strong and persistent adult sexual interest in pubescent (early adolescent) individuals, typically ages 11–14 (see the Tanner stage). It differs from ephebophilia, which is the strong and persistent sexual interest to those in later adolescence, approximately 15–19 years old,[1][2] and from pedophilia,[2] which is the primary or exclusive sexual attraction to prepubescent children.[3][4][5] While individuals with a sexual preference for adults may have some sexual interest in pubescent-aged individuals,[2][6] researchers and clinical diagnoses have proposed that hebephilia is characterized by a sexual preference for pubescent rather than adult partners.[2][7]

Hebephilia is approximate in its age range because the onset and completion of puberty vary. Partly because of this, some definitions of chronophilias (sexual preference for a specific physiological appearance related to age) show overlap between pedophilia, hebephilia and ephebophilia;[2] for example, the DSM-5 extends the prepubescent age to 13,[3] the ICD-10 includes early pubertal age in its definition of pedophilia,[8] and some definitions of ephebophilia include adolescents aged 14 to late adolescents. On average, girls begin the process of puberty at age 10 or 11; boys at age 11 or 12,[9] and it is argued that separating sexual attraction to prepubescent children from sexual attraction to early-to-mid or late pubescents is clinically relevant.[1][2]

According to research by Ray Blanchard et al. (2009), male sex offenders could be separated into groups by victim age preference on the basis of penile plethysmograph response patterns. Based on their results, Blanchard suggested that the DSM-5 could account for these data by subdividing the existing diagnosis of pedophilia into hebephilia and a narrower definition of pedophilia.[1] Psychologist Bruce Rind and sociologist Richard Yuill have published criticism of the classification of hebephilia as a mental disorder, though their view is that Blanchard et al. successfully established hebephilia as a “genuine sexual preference”; they suggested that if hebephilia were listed in the DSM-5, that it be coded as a condition that results in significant social problems today.[10] Blanchard’s proposal to add hebephilia to the DSM-5 proved controversial,[2][11] and was not adopted.[12]

https://en.wikipedia.org/wiki/Hebephilia

Pedophilia

Pedophilia or paedophilia is a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children.[1][2] Although girls typically begin the process of puberty at age 10 or 11, and boys at age 11 or 12,[3] criteria for pedophilia extend the cut-off point for prepubescence to age 13.[1] A person who is diagnosed with pedophilia must be at least 16 years old, but adolescents must be at least five years older than the prepubescent child for the attraction to be diagnosed as pedophilia.[1][2]

Pedophilia is termed pedophilic disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), and the manual defines it as a paraphilia involving intense and recurrent sexual urges towards and fantasies about prepubescent children that have either been acted upon or which cause the person with the attraction distress or interpersonal difficulty.[1] The International Classification of Diseases (ICD-10) defines it as a sexual preference for children of prepubertal or early pubertal age.[4]

In popular usage, the word pedophilia is often applied to any sexual interest in children or the act of child sexual abuse.[5][6] This use conflates the sexual attraction to prepubescent children with the act of child sexual abuse, and fails to distinguish between attraction to prepubescent and pubescent or post-pubescent minors.[7][8] Researchers recommend that these imprecise uses be avoided because although people who commit child sexual abuse sometimes exhibit the disorder,[6][9] child sexual abuse offenders are not pedophiles unless they have a primary or exclusive sexual interest in prepubescent children,[7][10][11] and the literature indicates the existence of pedophiles who do not molest children.[5][12][13]

Pedophilia was first formally recognized and named in the late 19th century. A significant amount of research in the area has taken place since the 1980s. Although mostly documented in men, there are also women who exhibit the disorder,[14][15] and researchers assume available estimates underrepresent the true number of female pedophiles.[16] No cure for pedophilia has been developed, but there are therapies that can reduce the incidence of a person committing child sexual abuse.[6] The exact causes of pedophilia have not been conclusively established.[17] Some studies of pedophilia in child sex offenders have correlated it with various neurological abnormalities and psychological pathologies.[18] In the United States, following Kansas v. Hendricks, sex offenders who are diagnosed with certain mental disorders, particularly pedophilia, can be subject to indefinite civil commitment.[19]

https://en.wikipedia.org/wiki/Pedophilia