Vous êtes sur la page 1sur 20

Criminal Law GS LAW 6843P

Summer 2016
Case Study: Creep Catchers

"Not only must Justice be done; it must also be seen to be done."1


Justice is an abstract notion and like any abstract thought or idea it may
have various manifestations. Every individual in society may have a different
conception of justice and it may be informed by cultural or societal
influences and the individuals own standards of morality.
At times, an individuals conception of justice may find itself in conflict with
how justice is conceived within the constructs of law. Laws are made to cater
to society at large and therefore cannot conform to every individuals sense
of justice.
The level of satisfaction that an individual, or a group, within society has with
the system of laws is directly related to how well that system of laws reflects
the notions of personal justice of that individual or group. If people perceive
that the system of laws is in conflict with their conception of personal justice,
naturally, they will rebel against such a system of law. That is why it is
imperative in a civilised society that justice must not only be done, it must
also be seen to be done otherwise that society runs a risk of plunging into
chaos.
With that said, no legal system is perfect and legal systems around the world
are constantly evolving, responding to changing policy considerations and
societal norms. Despite the best effort of lawmakers, there are always groups
or members in society who seem unsatisfied with either the pace at which
1 R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256.

the system of laws is progressing or how it responds in relation to certain


circumstances. In a democratic society it is perfectly fine to voice ones
dissatisfaction with the legal system as long as that criticism is academic and
constructive. However, when such individuals, start practicing disobedience
to the legal system and adopt a vigilante approach by taking the law into
their own hands it triggers alarms for the authorities intrusted with
maintaining law and order.
Recent incidents relating to internet vigilantism2 have rung such alarms for
Canadian authorities and indicate that there are people within the Canadian
society who seem to have lost faith in the criminal justice system. Taking
matters in their own hands, these vigilantes pose a problem not only
because they undermine the entire criminal justice system but also because
they encourage other sorts of vigilante frolics. If such actions are condoned
now it will be difficult to later draw a line on what is unacceptable.
Groups such as the Creep Catchers who are on a, self-proclaimed, online
crusade against sexual predators are coming precariously close to violating
various Criminal Code3 provisions themselves and are walking a tight rope.
However, as the law stands currently it seems that they operate within the
legal gray areas and have not, yet, offended any criminal law provisions.

2 http://www.cbc.ca/news/canada/british-columbia/creep-catcher-penticton1.3612791
3 Criminal Code, RSC 1985, c C-46,

In this paper I will critically examine the activities of the so called creep
catchers" and discuss if they violate any provisions of the Criminal Code. In
part one of the paper I will examine their possible liability for public
incitement of hatred under s. 319(1)4 of the Criminal Code. In part two of
this paper I will consider their possible liability for counselling an offence that
is not committed under s. 4645 of the Criminal Code. In part three of the
paper I will discuss possible liability for identity fraud under s. 4036 of the
Criminal Code. In part four of this paper I will discuss the possibility of such
vigilante groups incurring liability for possession of child pornography under
s. 163.1 (3)7 of the Criminal Code. Lastly, I will consider some policy
considerations which may be subverted due to the activities of such groups.
Public Incitement of Hatred.
Creep Catchers and other similar vigilante groups/individuals lure adults and
would-be child predators into an online relationship with members posing as
a minor. After prolonged conversations, which often include exchanging
pictures, videos and telephone numbers a face-to-face meeting is set up.
Members of Creep Catcher document the meeting via video and audio
recording. The video recordings, pictures, audio recordings and text logs are
4 Criminal Code, RSC 1985, c C-46, s. 319(1)
5 Criminal Code, RSC 1985, c C-46, s. 464
6 Criminal Code, RSC 1985, c C-46,s.403
7 Criminal Code, RSC 1985, c C-46, s. 163.1 (3)

then made public through social media websites such as youtube, facebook,
instagram and also on the groups own website.
The idea behind uploading the videos, audio recordings, pictures and text
logs is to publically name and shame such individuals and to make them an
example for other would-be predators.
Such actions may contravene the provisions of s. 319(1)8 which states:
Everyone who, by communicating statements in any public place,
incites hatred against any identifiable group where such incitement is likely
to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not
exceeding two years; or
(b) an offence punishable on summary conviction.
It is surprising that so far no charges have been brought against these
individuals under these provisions.
The actus reus of the offence consists of three elements:
1) Communicating statements that incite hatred against an identifiable
group.
2) Doing so in a public place
3) The incitement is likely to lead to breach of peace.

8 supra

The mens rea of the offence is that of general intent i.e. simply to do the act
that was done.9
s. 319 (7)10 states that:
communicating includes communicating by telephone, broadcasting or
other audible or visible means
Posting of videos and picture on social media surely falls within the ambit of
communicating.
Identifiable group has been defined in s. 319(7)11 as having the same
meaning as in s. 318(4)12 i.e. any section of the public distinguished by
colour, race, religion, national or ethnic origin, age, sex, sexual orientation,
or mental or physical disability
However, as per the decision in of R v Rehberg13 the offence under s.
319(1)14 is made out even if it is an individual against whom hatred is incited.
So the person shown in the videos/pictures published by Creep Catchers can
9 R v Mugesera, 2005 SCC 40, para 104.
10 Criminal Code, RSC 1985, c C-46, s.319(7).
11 Ibid.
12 Criminal Code, RSC 1985, c C-46, s.318(4).
13 R v Rehberg, 2010 NSPC 101
14 supra

be seen as a member of an identifiable group even if it is just one person in


the video.
Furthermore, pedophilia is considered a mental disorder15 and individuals,
although labeled as pedophiles by creep catchers on their websites and
social media have not yet been proven guilty, if they are hypothetically
presumed to be suffering from such a disorder the actions of publishing their
videos and pictures may fall within the definition of an identifiable group as
they suffer from a mental disability.
Public place has been defined by s. 319(7)16 as:
any place to which the public have access as of right or by invitation,
express or implied
It is likely that this includes social media and other websites that are used by
creep catchers apart from physical places.
In Keegstra17 it was stated that The intention of Parliament was to prevent
the risk of serious harm and not merely to target actual harm caused. The
risk of hatred caused by hate propaganda is very real. This is the harm that
justifies prosecuting individuals under this section of the Criminal Code.
15 Margo Kaplan, Pedophilia: A Disorder, Not a Crime, The New York Times (05 Oct 2014),
online: <http://www.nytimes.com/2014/10/06/opinion/pedophilia-a-disorder-not-acrime.html?_r=0>

16 Criminal Code, RSC 1985, c C-46, s.319(7).


17 R. v. Keegstra, [1990] 3 S.C.R. 697 p. 776.

Further in Mugesera18 it was stated that the offence does not require proof
that the act caused actual hatred
It is also clear that in determining whether the words or action express
hatred the courts employ an objective standard19. Therefore, it is not
necessary that any public hatred is actually incited or acted upon as long as
the words, videos/ images, audio recordings and comments made by the
publishers can on an objective standard be interpreted as inciting hatred. In
R v Ford20 incite was defined as to urge or stir up or stimulate.
There is no doubt that the actions of the creep catchers have stirred and
stimulated overzealous members of the society to harass and verbally
assault those who have been labeled as child predators by creep catchers.
The recent tragic incident in Edmonton involving Katelynn Ariel McKnight21
who, was developmentally challenged and was falsely accused and named
by the president of the Edmonton chapter of Creep Catchers, committed
suicide as a result of the hateful comments and actions of such likeminded
individuals. The act of publically naming and shaming perceived pedophiles
18 R v Mugesera, 2005 SCC 40, para 102.
19 R v Mugesera, 2005 SCC 40, para 106.
20 R. v. Ford 2000 CanLII 5701 (ON CA)
21 Sheena Goodyear, Creep Catcher vigilantes under fire over death of mentally ill woman
in video, CBC News (11 Oct 2016), online
<http://www.cbc.ca/news/canada/edmonton/creep-catcher-katelynn-mcknight-vigilantejustice-1.3794017>

is modern day lynching. A life is not literally taken but destroyed and at
times to the point of suicide as in the case of Katelynn.
COUNSELLING AN OFFENCE THAT IS NOT COMMITTED
S.464 of the Criminal Code states that:
Except where otherwise expressly provided by law, the following
provisions apply in respect of persons who counsel other persons to commit
offences, namely,
(a) everyone who counsels another person to commit an indictable offence
is, if the offence is not committed, guilty of an indictable offence and liable to
the same punishment to which a person who attempts to commit that
offence is liable; and
(b) everyone who counsels another person to commit an offence punishable
on summary conviction is, if the offence is not committed, guilty of an
offence punishable on summary conviction.22
In the leading case on the interpretation of this provision, R v Hamilton23, the
SCC stated that the actus reus consisited of deliberate encouragement or
active inducement of the commission of a criminal offence

22 Criminal Code, RSC 1985, c C-46, s.464.


23R v Hamilton,[2005] 2 S.C.R. 432 para 29.

It can be argued that the actions of the creep catchers in seeking individuals
in dating websites and then convincing them to meet with an underage child
can be considered active inducement to lure a child which is a Criminal
Code offence as per s. 172.1 (1)24.
The SCC stated that Counselling includes to procure, solicit and incite25.
Further, incite was defined as to urge26and procure was defined as to
instigate and persuade27.
It is clear that the creep catchers urge the target to meet with a child and
there is instigation and persuasion involved in the ordinary sense of these
words. The entire idea is to convince the target to meet with the underage
child so he can be caught and latter named and shamed.
Obviously, no underage child is actually lured as it as an adult who is
pretending to be an underage child but that is irrelevant for the purposes of
the commission of an offence under s. 46428 as it covers the counselling of a
crime that is not committed.

24 Criminal Code, RSC 1985, c C-46, s.172.1(1)


25 R v Hamilton,[2005] 2 S.C.R. 432 para 22
26 Ibid.
27 Ibid.
28 Supra.

Furthermore, it is irrelevant whether the commission of the offence was


impossible by the person counselled as stated in R v Ryan29. In Ryan a
women was found to have counselled an undercover police officer to kill her
husband thinking that he was a hitman. The court held the elements of the
offence had been made out even though the person counselled was an
undercover police officer who could not commit the acts counselled.
However, the woman was not convicted due to the existence of a valid
defence.
The mens rea of the offence consists of intent or conscious disregard of the
substantial and unjustified risk inherent in the counselling: that is, it must be
shown that the accused either intended that the offence counselled be
committed, or knowingly counselled the commission of the offence while
aware of the unjustified risk that the offence counselled was in fact
likely to be committed as a result of the accuseds conduct.30
It is arguable whether the mental element of the offence is made out by the
actions of individual members of Creep Catchers. It is certainly clear that the
purpose behind luring the target is to actually convince the target that he is
about to meet an underage child. Whether the fact that the catchers have
prior knowledge that no child is actually involved negates such an intention
is unclear.
29 R v Ryan,[2013] 1 SCR 14.
30 R v Hamilton,[2005] 2 S.C.R. 432 para 29

Although, it seems clear that the words and actions of the catchers prior to
the confrontation are actually intended to encourage, incite and procure the
target to lure a child. Whether these are sufficient to show that the offence
was actually intended is a matter that can only be settled if it is brought in
front of the courts for judicial consideration. However, it does seem unlikely
that such an intention can be established as the catchers know from the very
outset that there is no underage child actually involved.

Identity fraud
Creep catchers and similar vigilantes use fake profiles to lure would-be child
predators. The use of such fake profiles may be in contravention to s. 403 of
the Criminal Code which states that:
403. (1) Everyone commits an offence who fraudulently personates
another person, living or dead,
(a) with intent to gain advantage for themselves or another person;31
The actus reus of the offence consists of impersonating a person either
living or dead.32

31 Criminal Code, RSC 1985, c C-46, s.403(1)(a)


32 R. v. Jahanrakhshan 2013 BCCA 398.

A member of the creep catchers admittedly uses old pictures of his friends
children33 for the fake profiles of a boy and a girl that he operates. It is not
clear if this person is also using their names. If the names, in whole or in
part, are being used than the actus reus of the offence is made out. However
if the names being used are entirely fictitious then the actus reus is not
established.34
In R. v. Hetsberger35 it was held that advantage is not limited to a monetary
advantage, but also includes any better position or favourable circumstance.
Thus, it can be argued that the personation is committed for gaining and
advantage i.e. to lure the would-be child predators which would otherwise
not be possible. The advantage gained is that the catchers would ultimately
round up another potential child predator and generate further publicity for
their cause.
Fraudulently has been defined in multiple cases as dishonest conduct. Use of
fake profiles to lure individuals for whatever purpose can amount to conduct
which is dishonest.
Possession of Child Pornography
33 Manisha Krishnan, Meet the Toronto Man Who Is a Vigilante Pedophile Hunter, VICE
News (22 Oct 2015), online <http://www.vice.com/en_ca/read/meet-the-toronto-man-who-isa-vigilante-pedophile-hunter>

34 R. v. Jahanrakhshan 2013 BCCA 398.

35 R. v. Hetsberger, 1980 CarswellOnt 1284 .

In every standard sting operation by the Creep catchers there is usually an


exchange of text messages or emails. During these exchanges it is not
uncommon for the operator of the fake profile and the target to exchange a
variety of digital media which includes pictures and videos as part of the
communication. If care and caution is not exercised by these untrained
vigilantes they could find themselves offending the provisions with s. 163.1
(3) of the Criminal Code which states:
Every person who possesses any child pornography is guilty
of
(a) an indictable offence and is liable to imprisonment for a term of not
more than 10 years and to a minimum punishment of imprisonment for a
term of one year; or

(b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more


than two years less a day and to a minimum punishment of imprisonment
for a term of six months.36
All that is required for the commission of the actus reus is possession of
child pornography.37 Possession was defined in Morelli as possession of an
image in a computer means possession of the underlying data file.

36 Criminal Code, RSC 1985, c C-46, s. 163.1(3).


37 R. v. Daniels (2004), 191 C.C.C. (3d) 393
38 R. v. Morelli (2010), 2010 CarswellSask 150 S.C.C.

38

Child pornography has been defined in s. 163.1(1)39 at length and basically


includes videos, pictures, writing and any visual or audio representation of
sexual activity involving anyone under the age of eighteen or depicted as
being under the age of eighteen.
If a potential child predator, happens to possess such content and transmits
it to the sting operators who knowingly download it on to their computer or
cell phone may incur liablity under s.163.1(3)40. It is not an uncommon
practice for these vigilante groups to collect all the data that was exchanged
during the sting as a means of collecting evidence. This evidence is later
uploaded to the websites in order to back up their allegations. A potential
child predator who is already being monitored by law enforcement agencies
and is arrested during the time that the vigilante group is performing their
unauthorized sting they may get caught in between the operation. Law
enforcement agencies usually confiscate devices of potential suspects which
may lead them to the transferred files that are in possession of the vigilante
group. The motive of the vigilante group for the possession of such files will
be irrelevant for the purposes of the offence under s.163.1 (3)41.
The mens rea for the offence is knowledge similar to other possession based
offences. If the vigilantes knowingly download the content as a means of
39 Criminal Code, RSC 1985, c C-46, s. 163.1(1)
40 supra
41 supra

collecting evidence the mens rea of the offence is established and again the
motive is irrelevant as is with most criminal offences.
Policy Consideration
Citizens are discouraged from taking the law into their own hands as it is
against public interest to condone such behaviour. The acts of groups such
as the Creep Catchers undermine the entire criminal justice system by
creating the perception that it has failed in achieving its objectives, in this
case, of proactively protecting underage children from online predators. By
taking the law into their own hands vigilantes compromise the values
enshrined within the Canadian constitution and the charter of rights. By
labeling individuals as pedophiles without the due process of the law they
encroach on the fundamental right of every individual to be presumed
innocent until proven guilty by a court of law.
Furthermore, creep catchers may disrupt ongoing investigations of law
enforcement agencies that are already investigating individuals and
laboriously piecing together evidence as prescribed under the law. If an
actual child predator is prematurely alerted by being named through an
unauthorized sting by groups such as the creep catchers, it is highly likely
that he would immediately destroy all evidence on devices such as a mobile
phone and computer that he has in his possession. This might jeopardise the
investigations of the law enforcement agencies and allow an actual child
predator to evade prosecution.

Law enforcement agencies are protected by certain laws that grant immunity
when officers are acting undercover and they may not be prosecuted for
certain things done in order to maintain their cover. However, unauthorized
sting operations such as the ones conducted by creep catchers are not
covered by such immunities. Individuals and members of the groups may
unknowingly attract criminal sanctions and later find that ignorance of the
law is not a defence.
Potential predators are usually confronted in public places which
unnecessarily puts the public at risk of serious harm. If an actually dangerous
individual who happens to be in possession of a firearm is confronted by the
vigilante group and decides to retaliate, innocent bystanders may be
seriously injured or killed.
Conclusion
No matter how noble the intentions of individuals and members of groups
such as the creep catchers, so far their actions have led to no convictions
and it is highly unlikely that they will result in any convictions in the future
either. The evidence collected by such groups is questionable and their
methods even more controversial. Not only are they jeopardizing their own
security sand safety they are also putting other members of the public at
risk. Their actions can inspire lynch mobs and other acts of extreme violence
towards the individuals who have not been proven guilty by a competent
court. So far the actions of such groups have only drawn moral and ethical

criticism but it seems likely that if they continue with their activities they will
also attract legal ramifications.

Table of Cases:
R. v. Daniels (2004), 191 C.C.C. (3d) 393
R. v. Ford 2000 CanLII 5701
R v Hamilton,[2005] 2 S.C.R. 432
R. v. Hetsberger, 1980 CarswellOnt 1284

R. v. Keegstra, [1990] 3 S.C.R. 697


R v Mugesera, 2005 SCC 40
R. v. Morelli (2010), 2010 CarswellSask 150 S.C.C.
R v Rehberg, 2010 NSPC 101
R v Ryan,[2013] 1 SCR 14
R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256
R. v. Jahanrakhshan 2013 BCCA 398
Secondary Sources:
Tania Arvanitidis, Publication Bans in a Facebook Age: How Internet
Vigilantes Have Challenged the Youth Criminal Justice Acts Secrecy Laws
Following the 2011 Vancouver Stanley Cup Riot (2016) 5:1 CGJSC 18.
Kelly D. Hine, Vigilantism Revisited: An Economic Analysis of the Law of
Extra-Judicial Self-Help or Why Can't Dick Shoot Henry for Stealing Jane's
Truck? (1998) 47:5 AULR 1221.
Steven A. Kohm, Naming, shaming and criminal justice:Mass-mediated
humiliation as entertainment and punishment(2009) 5:2 CMC 188.
Jessica Evans, Vigilance and vigilantes:Thinking psychoanalytically about
anti-paedophile action (2003) 7:2 TCJ 163.