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.

2 Replies to “Is “Creep Catching” Legal?”

  1. I have discovered members of ‘creep catchers’ who are not such quick thinkers – there personal info is locatatable online. I’m sure a google image search would pull most of them from hiding too! Best of all, I believe it’s totally legal to do online searches and post!

  2. In my case there was a 1 line mention of age after a comment by myself over a statement that was odd yet plausible. I saw the preview line, before I opened the email, which started “I know, right” I didn’t bother opening or reading further . I simply thought that this conversation was going amazingly well (lots of bots on Craigslist) I had sent two back to back emails and her responses were multiple so I went to the most recent. Ironically the very reason why I asked if she used kik or what’s app there are indicators of whether a message has been read or not and the layout of the conversation is more clear and easy to follow. I was expecting an 18yr old. The pictures I got were not of a child.

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