DATE: 20010119

DOCKET: C31613

COURT OF APPEAL FOR ONTARIO

CATZMAN, CARTHY and WEILER JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) Moiz Rahman, for the respondent

(Respondent) )

–and– )

J. S. (a young person) ) Gregory Lafontaine, for the appellant

(Appellant) )

) Heard: January 15, 2001

On appeal from the conviction imposed by Madam Justice D. Terry Vyse dated December 22, 1998.

WEILER J.A.:

[1] The appellant, a young offender who was 14 at the time of the events in issue, appeals his disposition of a conditional discharge for trafficking by selling $10 worth of marijuana. After being found guilty of trafficking at trial, the appellant brought an application for a stay of proceedings pursuant to s.24 of the Canadian Charter of Rights and Freedoms on the basis of abuse of process by entrapment. The application was dismissed and the appellant was given a conditional discharge. The appellant submits that the trial judge erred in the test she applied to determine whether entrapment had been made out.

[2] The main issues on this appeal are:

a) whether the police had a reasonable suspicion that the area targeted by their investigation was an area in which drug trafficking would be occurring; and

b) whether the officers went beyond providing an opportunity for the appellant to commit the offence and induced the commission of an offence.

[3] The facts giving rise to the plea of entrapment are as follows. The appellant drove to Hamilton with some friends to attend a Marilyn Manson concert at Copps Coliseum. He brought with him $30 worth of marijuana that he had purchased, intending to smoke it at the concert with his friends. While standing outside a Harvey’s restaurant in the vicinity, the appellant was approached by two undercover officers dressed in the attire of Manson concert goers. The officers wore white face makeup and black wigs. One of the officers approached the appellant and, after making a comment that he was unable to find any drugs in Hamilton, asked if anyone knew where he could, “score some weed”. At that point, the appellant responded and asked how much the officer was looking for. The officer replied he just wanted enough “for a few joints … a dime”. The appellant testified that he was hungry and wanted to buy some food but he did not have any money. While he discussed whether he should sell any of the marijuana with his friends, the officer continued to press for the sale. The appellant then told the officer to meet him in the washroom of Harvey’s, sold the marijuana and was arrested.

[4] The test for entrapment has two branches. The appellant need only establish that one of the two branches of the test is not met in order to succeed. The first branch is whether the authorities acted on a reasonable suspicion that drug trafficking was occurring when they targeted the individual or area. In this case, the area targeted was that surrounding the rock concert at Copps Coliseum. In my opinion, it is not necessary to deal with the first branch of the entrapment test because of my conclusion that the appeal must be allowed on the second branch of the test.

[5] The second branch of the test presupposes that the police have reasonable suspicion in targeting the area or individual in question. However, if the appellant can show that the police went beyond simply providing an opportunity to commit the crime and actually induced the commission of an offence, entrapment will be made out: R. v. Mack (1988), 1988 CanLII 24 (SCC), 44 C.C.C. (3d) 513.

[6] In her reasons the trial judge found:

[I]t was clear on the evidence that the youth would not have sold the marijuana without [Const.] Cox approaching the youth.

Further, she explained that she was:

[s]atisfied that the naivete [of the appellant] was apparent in his demeanour and that there was hesitation on his part to answer the officer’s inquiries. I am also satisfied that the sale was not made for profit and that the youth would not have sold the marijuana if not for the importuning of the officers. That the youth was uncertain how to respond in the circumstance was evident from his consulting with his friends about the officers accosting him and that he responded perhaps out of what was described as his wanting to be a nice guy to a fellow concert goer. He did express concern about his safety, because the officers were much bigger, stronger and heavier than he was, and much older.

[7] The trial judge then went on, however, to state:

In the matter before the court, the officer, according to the youth before the court said, “Come on, man, it’s okay, just a dime. It’s all right. Do me a favour.” The youth’s friends recalled the officer saying, “We just need a little bit, we just need a little bit,” and “It will be all right. Come on, everything will be fine.” Can it be said that this constituted more than providing the youth with an opportunity to supply the marijuana? Can the evidence be regarded as leaving no room for the formation of independent criminal intent? I think not.

[8] The trial judge’s reference to the requirement of, “the evidence … leaving no room for the formation of independent criminal intent” is a reference to the concluding comments of Ritchie J. in R. v. Amato (1982), 1982 CanLII 31 (SCC), 69 C.C.C. (2d) 31 (S.C.C.) at 40. In relying upon the comments of Ritchie J. in Amato and applying them to this case, the trial judge erred. The comments of Ritchie J. were rejected by a unanimous Supreme Court in R. v. Mack, supra, at 544-5 as being too onerous. In Mack,the Court stated that the second branch of the test for entrapment was met when the police go beyond providing an opportunity to commit the crime and induce the commission of an offence.

[9] Based on the trial judge’s findings as to what was said, and considering the factors set out in Mack, supra, at p. 560 in determining whether the police provided more than a mere opportunity to commit the crime,I am of the opinion that the appellant has succeeded on the second branch of the test and that entrapment is made out. Accordingly, the trial judge erred in not concluding that there had been an abuse of process and in refusing to grant a stay of proceedings.

[10] I would allow the appeal, set aside the disposition and enter a stay of proceedings.

Released: JAN 19 2001 Signed: “Karen M. Weiler J.A.”

MAC “I agree J.J. Carthy J.A.”

“I agree M.A. Catzman J.A.”