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.

Print

The Regina Leader – September 2017

Facebook live video shows fight between Regina ‘creep catcher’ and unidentified man

The Abbotsford News – August 2017

The truth about online vigilante group Creep Catchers: Part One

Edmonton Journal – July 2017

Saskatchewan Creep Catcher charged for criminal harassment in Lloydminster

National Post – July 2017

Vigilante group Creep Catcher violates privacy of their targets, B.C. watchdog rules

VICE.COM – May 2017

Creep Catchers Threw Themselves a Fundraiser and It Was a Cult-like Spectacle

The Globe and Mail – May 2017

Two members of Surrey Creep Catchers face assault charges: RCMP


VICE.COM – January 2017

The Rise of Creep Catchers, Canada’s Vigilante Pedophile Hunters

Ottawa Citizen – September 2016

Creep Catchers: UBC law professor warns of vigilantism’s dangers

Edmonton Journal – April 2016

Edmonton creep catchers harm investigations into online child luring, police say

The Saskatoon StarPhoenix – July 2016

Column: There’s something creepy about vigilante Creep Catchers, writes John Gormley

The Cloverdale Reporter – November 2016

Help or harm? Lawyers fear Creep Catchers prioritize attention over due process

Kayla Lee – Criminal Lawyer – October 2016

Creep Catchers – Vigilante Justice, Entrapment, and Committing Offences

Radio

News 1130 – February 2017

Surrey Creep Catchers investigation could be the end: lawyer


CKNW News Talk 980 – February 2017

B.C. privacy watchdog investigating Surrey Creep Catchers following complaint

CKNW News Talk 980 – October 2016

Surrey Creep Catchers wrongly identifies another man in viral video

CKNW News Talk 980

Alberta Creep Catchers member charged with criminal harassment

News 1130

Getting caught on Creep Catchers jeopardizes your job, even in the absence of charges

 630 CHED – Edmotnon -September 2016

Vigilante “creep catchers” target wrong man in Calgary

Privacy Law Guide for Creep Catchers Groups

 

By Craig E .Jones, Q.C.

What is PIPA?

Originally there was a law called the Freedom of Information and Protection of Privacy Act (FOIPPA).  That Act provided for the protection of information collected by government, as well as ‘quasi governmental’ entitles like universities and Crown Corporations.  It also provides a process whereby members of the public can make “freedom of information requests” to gain access to government documents.

The more recent  Personal Information and Protection of Privacy Act (PIPA) extends privacy protection into the private sector.  PIPA governs the collection, use and dissemination of “personal information” by organizations beyond government.  It dictates what can be done with personal information by companies as well as unincorporated associations such as unions, sports teams, societies, and clubs.  Unlike FOIPPA, where the focus is on access to information as well as protection of privacy, PIPA is mainly directed at regulating the gathering, use, and release of personal information by private groups. A full text of the statute is available online: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_03063_01

Why is my Creep Catchers Group Subject to PIPA?

Creep catchers groups are subject to PIPA because they are “unincorporated associations”, which are “organizations” under the Act.  So as soon as the group gathers personal information, it must conform with the processes and restrictions of PIPA.  This is why the Erb case is important: the Office of the Information and Privacy Commissioner has decided, at least on preliminary review, that Surrey Creep Catcher is an “organization”.  They are now going to determine whether the SCC group has been operating in violation of the laws in the way it has gathered, used or disseminated personal information.

What is “Personal Information” under PIPA?

“Personal Information” includes almost any information connected to an individual.  So, let’s say in response to a CC ad, someone reveals something about themselves (where they live, their name, age, email address, hobbies and interests, etc), then that group has just “collected” “personal information” as it is understood in the Act.

Prior decisions have also established that pictures and video recordings, even if taken in “public” places, also constitute “personal information” and are protected.

There is a general exemption under PIPA for information that I collected by private individuals for their own personal or domestic purposes.  But as soon as an individual collects information for any other purpose, they become an “organization” subject to PIPA.

What are the Relevant Provisions for Creep Catchers?

The basic rule under PIPA is that organizations cannot collect, use or disseminate personal information without consent of the individuals involved.  Consent must be free and “informed”.  PIPA makes it clear that if information is gathered by deceit then there is no consent.  So if a CC group receives responses from online interlocutors who think they are talking to a female ‘lure’ (whether of age of not), they are gathering information without consent.  This gathering includes the confrontational videos made by groups.

The PIPA, however places many other obligations on an “organization”.  It must, for instance, put in place a process for persons to register complaints or objections about the collection, use or release of the personal information it possesses.  It must also provide a mechanism to challenge those kind of decisions, and designate an officer for these purposes. The Act sets out strict timelines for response to requests.

What are the Powers of the Commission?

Under the PIPA, the Commission has broad authority to conduct investigations, hold hearings, compel testimony, and make orders including for fines or the destruction of “personal information” in its possession.  Refusing to cooperate or obstructing an investigation can lead to contempt proceedings enforced through the B.C. Supreme Court and other sanctions.

But… How Come Cops can Use “Stings”?

There are specific exemptions under PIPA and at common law to allow for legitimate collection of information in the course of criminal or other investigations.

What are the Penalties for Not Complying?

PIPA provides for fines up to $10,000 for individuals and $100,000 for groups, for every separate breach.  It also provides for civil lawsuits if the Act is breached.  There is also a stand-alone tort of invasion of privacy under the BC Privacy Act.  Under that Act, a claim can be brought even if there is no proof of damage arising from the breach.

So Aren’t I Immune if I have No Money?

You may never have to pay a fine if you never have any money. However, if you are subject to an order that becomes a judgment debt, you may face seizure of your personal assets, including real estate, and garnishing of any bank accounts or wages from your employer.  Bankruptcy can relieve you of some debts, including judgment debts, but does not apply to relieve you of the consequences of deliberate or malicious action. So the short answer is, you might be “immune” for the moment, but five or ten years down the road you might find your bank account empty or your home put up for auction.

By not following and understanding the Provincial and Federal Privacy Acts, you run the risk of ending up in a situation similar to that of Ryan LaForge and the Surrey Creep Catcher outfit.

Office of the Information and Privacy Commissioner (BC)
Order P17-03; Surrey Creep Catcher
https://www.oipc.bc.ca/orders/2060

A Creep Catchers Q&A

by Craig E Jones, Q.C., Professor of Law.

Q: Why are you opposed to Creep Catchers?

A: I’ve been observing the online growth of the Creep Catchers movement and I oppose it for many reasons. But most fundamentally, I think it is dangerous to have entertainment-based law enforcement, driven by competition for attention and viewership. We have seen Surrey Creep Catchers, for instance, go from a few discrete “sting” operations to its present state, where it taunts an uncritical audience of thousands (“Who wants a live catch?”), and tries to constantly outdo itself (and competing CC groups) with the number of “catches”. Couple this with its adoption of the fundamentally fascist tactic of excluding critical or reluctant voices by branding critics as “pedo lovers”, its attempts at commercialization through online advertising and T-shirt sales, and so on, and you have a bad situation. It’s becoming a machine that will feed its audiences craving with more and more “blasts”, and it won’t care if the “targets” are guilty or innocent. And that’s exactly what we’re seeing now.
That’s my basic philosophical objection. Operationally, I worry about their education, training and intelligence, which all seem to be lacking (I’m trying not to be unkind, but many seem to be essentially unemployable criminals who can barely craft a coherent sentence), and the mesmerized adoration of their followers. I dislike the Creep Catchers methods, which involve the systematic offences against many innocent people, and the occasionally sadistic glee that characterizes their “operations”.

Q: Is it because you’re a goof and a creep and a pedophile who’s afraid he’s going to be caught?

A: This is kind of like saying that if you’re opposed to capital punishment for rapists, then you must be a rapist, or at least pro-rape. I’m the father of two kids aged 9 and 13. I care a lot about what happens to them, and I also care a lot about the kind of world that they’re growing up to live in. I don’t want that to be the Creep Catchers world. Just because we disagree about the Creep Catchers doesn’t mean we disagree about child sexual abuse. Every right-thinking parent is terrified by the thought of a child becoming the victim of a predator. But we can’t let that primal fear be cynically exploited by online entertainers, and lead us to sacrifice our most basic morals and principles.

Q: What do you mean that the Catchers commit “offenses against many innocent people”? Don’t the “creeps” get what they deserve?

A: Most of the people initially sucked into CC stings aren’t “creeps” – they’re adults looking to meet other adults on dating sites. When the Catchers place an ad, they pretend to be an adult woman. Many people respond to that ad, in good faith, and there’s a conversation – maybe an hour, maybe weeks or months. At some point the CC ‘drop the age bomb’ and claim to (now) be an underage girl. Most men then terminate the conversation, but not before the CC have harvested their personal information using online deception, tricked them into revealing often intimate details about their lives, and wasted their time. This is an offence under the Personal Information Protection Act, and a civil wrong under the Privacy Act. And it’s also just plain wrong – people have a right to use dating sites without being subject to amateur virtue tests operated by some hopped-up slob hovering over a computer screen in some Surrey basement. Creep catchers may enjoy their little ‘cloak and dagger’ ‘cat and mouse’ game, but they have no right to include others in it against their will.

Q: OK, but the ones they do catch aren’t innocent, right?

A: Depends on what you mean by “innocent”. From the CC videos and chats I’ve seen, I would say that many of the “blasted” aren’t “guilty” in the criminal sense, although of course some of them are. But the CC don’t set their threshold at criminal guilt: they have a “moral bright line” that says anyone who will agree to meet with an underage person is a pedophile. I personally question this threshold, because I can conceive of many reasons adults and teenagers can legitimately and innocently talk with each other. It worries me that CC apparently can’t believe that a 14 or 15 year old is anything but a sexual object. But really, that’s something about which reasonable people can disagree. If the CC simply reported what people did (“Target X agreed to meet a 15 year old for coffee and discuss art”), that would be one thing, but their obsession with underage sex makes them leap to the further conclusion: (“Target x agreed to meet a 15 year old for coffee and discuss art, therefore he is a pedophile, child molester, and deserves to have his life ruined”).

Occasionally they go much further. When Sean Smith posted an online video in which he criticized the CC groups, Ryan LaForge, SCC President, made a number of posts identifying Smith as a pedophile. Enthusiastic followers uncritically believe what Ryan LaForge says, so they went to war against Smith. One of them even posted a photo of Smith’s elderly mother, because, he explained, Smith’s actions must have “repercussions”. There’s plenty of other examples. In one SCC video, a “target” is chased to a police station. When the cop treats the CC group with what seemed to supporters to be rudeness, the mob says “he must be a pedophile too”, and so he becomes the “pedo cop” or the “goof cop”. There are dozens of examples. So on the ‘threshold of guilt’ question, we’ve now gone from definition A (people who try to arrange sex with a minor), to include B (people who meet with a minor for any reason) and now C (people who don’t enthusiastically support Creep Catchers). When you combine this “threshold” expansion with the CC need to maintain support through volume of “catches”, this becomes a greater and greater problem.

Q: So what are people supposed to do with the justice system failing them so badly?

A: Well to start with, I question the premise. Most people who talk about the failure of the justice system have no data to back that up – it’s just an impression that they have from TV and the internet. What they have is anecdotes to indicate that, despite all the police’s efforts, child sexual predation still occurs. That is the same of course for most things in life. Despite regulators’ efforts to demand safer cars, people are still killed in accidents. My own impression is that Canada does a very good job at investigating criminals and prosecuting crime, including internet luring. But we can’t be willing to allow groups to commit crimes, abuse rights, and basically do anything they want as long as a single child predator walks the streets, on the excuse that “at least they’re trying to help kids”.

But the question was, what can people do? Honestly, if you want to obsess over this aspect of child safety (sexual predation), focus on the real source – 90% or more – of the danger. Not online predators or other strangers, but family, friends, and other people who interact with kids in person. That’s where almost all of the abuse occurs. Second, to cover off the (mercifully unlikely) possibility of online predation, educate your kids, and kids generally, about the dangers and how to avoid them. CC’s time could be far more usefully employed in these areas, but it makes for poor TV, and investigations and education are hard. Their response is, of course, “well, you focus on those areas. I’m doing this”. Sure OK, but you asked.