TORONTO — A medical student who sought sex with an undercover police officer posing as a 14-year-old girl lost his argument on Friday that he was the victim of entrapment.
In a case likely to end up before the country's top court, the Ontario Court of Appeal upheld the Internet child-luring conviction of Akash Ghotra that resulted in a six-month jail term.
"There was no allegation that the police acted in a way to induce the appellant to commit an offence," Justices Bradley Miller and William Hourigan said in the 2-1 decision.
Court records show the case arose in November 2012 when Ghotra, 26, struck up a conversation with "Mia, a female officer with Peel region just west of Toronto, in an adults-only Internet chat room not focused on sexual activity. After Mia said she was a 14-year-old girl, Ghotra turned the conversation explicitly sexual.
Among other things, he questioned her about her sexual experience and encouraged her to have sex with him, despite her reticence.
After four days of similar chats, Ghotra proposed meeting up in her apartment lobby for a sexual encounter. Police arrested him when he showed up.
Ghotra argued unsuccessfully at trial that he believed Mia to have been an adult engaged in role playing. He said he had no intention of having sex with someone underage.
Superior Court Justice Bruce Durno, however, rejected his arguments and convicted him in May 2016. Durno also refused a stay of proceedings after Ghotra argued entrapment.
Essentially, Ghotra maintained police had created the opportunity for him to commit a crime by confronting him with a 14-year-old girl in a place where he had no reason to expect someone so young.
Key to deciding, the appellate justices said, was who had set the criminal conduct in motion. In this case, they decided, it was Ghotra when he first contacted Mia and asked her age.
"Having learned that she was underage, it was the appellant who ventured into sexual topics and suggested an in-person meeting," the majority said. "Throughout these interactions, the undercover officer repeatedly raised the issue of the fictional victim's youth but the appellant persisted."
Justice Ian Nordheimer disagreed, saying police had gone on a privacy-violating fishing expedition and he would have set aside the conviction and stayed the proceedings.
"People who participate in private conversations on the Internet are entitled to expect that the police will not be surveilling their conversations, including instigating or participating in them for investigative purposes not based on a reasonable suspicion of criminal activity," Nordheimer said.
The officer, Nordheimer said, had deliberately posed as a young female "cutie," thereby inviting improper conduct. He compared it to an undercover officer standing on a street corner with a sign reading "drug user" to let dealers know they had a potential customer.
Nordheimer noted the chat room was adults only and not devoted to sexual interests or activities. Police, he said, would have had no reason to suspect criminal activity was taking place.
Instead, he said, the officer engaged in "random virtue testing," and it was an open question whether Ghotra would have gotten involved in the crime without her actions.
"In my view, the officer did provide an opportunity to commit an offence," Nordheimer wrote.
Ghotra's lawyer said he would be filing an appeal to the Supreme Court of Canada next week.
This report by The Canadian Press was first published on June 12, 2020.
Colin Perkel, The Canadian Press
