Documente Academic
Documente Profesional
Documente Cultură
Summer 2016
Case Study: Creep Catchers
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
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
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.
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
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>
38
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