COURT OF APPEAL FOR ONTARIO
DOHERTY, SIMMONS and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
Beverly Wilton
for the appellant
- and -
E. Bruce Olmsted
RAMKISHORE JAGESHUR
for the respondent
Respondent
Heard: August 23, 2002
On appeal from an acquittal entered by Justice W. Lloyd Brennan dated November 1, 2000.
DOHERTY J.A.:
I
OVERVIEW
1[1] The respondent is a drug dealer. In November 1996, he sold one kilogram of cocaine to an undercover police agent. In the summer of 1997, he agreed to purchase eighteen kilograms of cocaine from undercover police officers and he made a deposit of $80,000 towards the purchase. A few days later, the undercover police officers produced the drugs and the respondent paid the outstanding amount. He was arrested moments later and charged with trafficking in cocaine. The charge related to the purported sale of the eighteen kilograms of cocaine to the respondent by the undercover officers.1
2[2] The respondent could not deny his participation in the purchase of the cocaine. It was videotaped. He did, however, advance a number of “Charter” defences. This appeal is concerned with one of them. The respondent submitted that the undercover officers’ offer to sell and subsequent sale of cocaine to him was illegal, contrary to RCMP policy governing “reverse stings” and contrary to specific instructions given to the investigating officers by RCMP Ontario Headquarters in London. The respondent claimed that the police misconduct so undermined the integrity of the criminal justice process as to result in an abuse of that process. He sought the exclusion of all evidence obtained during the reverse sting.2
3[3] Brennan J. held that the reverse sting was unlawful and constituted trafficking in a narcotic by the police. He further held that the conduct amounted to an abuse of process and he excluded all of the evidence obtained by the police in the course of the reverse sting. The Crown had no other evidence and the respondent was acquitted: R. v. Jageshur, [2000] O.J. No. 4291 (Ont. S.C.J.).
4[4] The Crown appeals. Crown counsel submits that the trial judge erred in law in holding that the reverse sting was unlawful and further erred in law by equating a finding of unlawfulness with a finding of abuse of process. Lastly, she submits that although counsel framed his application in terms of a request for the exclusion of evidence, it was tantamount to a request for a stay of proceedings. She argues that the trial judge erred in law in failing to apply the “clearest of cases” standard in determining whether the entirety of the evidence gathered during the reverse sting should be excluded.
5[5] The respondent replies that the issues raised on the abuse of process motion were fact-specific. The trial judge was required to make findings of fact and those findings must be shown deference on appeal. Counsel submits that the trial judge’s findings of fact are all supported in the evidence and justify his conclusions that the investigation was illegal, contrary to RCMP policy and in defiance of direct orders from superior officers. Counsel contends that on those findings, the trial judge’s determination that a prosecution relying on evidence gathered during the reverse sting would constitute an abuse of process is unassailable. Finally, counsel argues that the remedy sought was the exclusion of constitutionally tainted evidence under s. 24(2) of the Charter. He submits that the trial judge’s order is consistent with the principles governing exclusion under s. 24(2).
6[6] I would allow the appeal, set aside the acquittal and direct a new trial.
II
Reverse Stings
7[7] In sting operations, undercover police officers pose as purchasers of narcotics. Possession incidental to the purchase has been lawful for many years: Narcotics Control Regulations, C.R.C., c. 1041, (1978), as am. by S.O.R./97-227. While sting operations are an effective investigative tool, they tend to catch lower echelon drug peddlers. In an effort to capture higher level drug dealers, police officers have from time to time posed as sellers of narcotics. In a reverse sting, police undercover officers offer to sell large quantities of drugs to the target. If the negotiations are successful, the police operatives produce the drugs, give them to the target upon receiving payment and the target is arrested shortly afterwards.
8[8] The conduct of the police in a reverse sting comes within the definition of trafficking. That definition includes offering for sale and the actual sale of a narcotic. Unlike possession by police who have purchased drugs from targets of an investigation, the offering for sale and sale of drugs by police operatives in a reverse sting was not authorized under the Narcotic Control Act, R.S.C. 1985, c. N-1, as rep. by the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 94. Consequently, police officers who offered for sale or sold narcotics in the course of a reverse sting were trafficking in a narcotic. In R. v. Shirose (1999), 1999 676 (SCC), 133 C.C.C. (3d) 257 (S.C.C.), aff’g on this point (1997), 1997 3462 (ON CA), 115 C.C.C. (3d) 310 (Ont. C.A.), it was firmly established that reverse sting operations were illegal under the Narcotic Control Act.
9[9] In May 1997, Parliament repealed the Narcotic Control Act and enacted the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). The CDSA continued the prohibition against trafficking in a narcotic, but introduced, through regulations,3 several exceptions to that prohibition, some of which were designed to legalize reverse sting operations in specified circumstances. Two of those regulations are relevant to this appeal:
8.(1) Subject to section 15, a member of a police force is exempt from the application of section 5 of the Act where the member engages or attempts to engage in conduct referred to in that section that involves a substance that has been forfeited to Her Majesty, that is imported in accordance with section 11 of these Regulations or that is produced in accordance with section 13 of these Regulations, if the member has been issued a certificate.
(2) The appropriate police officer may issue a certificate for a period not exceeding six months for the purposes of subsection (1) to a member of a police force where the member
(a) is an active member of the police force; and
(b) is acting in the course of the member’s responsibilities for the purposes of a particular investigation.
- A member of a police force who engages in conduct referred to in section 5 or 7 of the Act by offering to engage in that conduct is exempt, in respect of offering to engage in that conduct, from the application of section 5 or 7 of the Act, if the member
(a) is an active member of the police force; and
(b) is acting in the course of the member’s responsibilities for the purposes of a particular investigation.
10[10] There is a clear distinction between the exception created by s. 8 and that created by s. 15. Section 8 applies to all forms of trafficking, including the actual sale of narcotics. It exempts an active police officer from the prohibition against trafficking in the CDSA if that police officer has been issued a certificate by an “appropriate police officer” (the Assistant Commissioner in the case of the RCMP), and if that police officer is acting in the course of his responsibilities and for the purpose of a particular investigation.4 Section 15 of the regulations speaks only to offering narcotics for sale. It exempts an active police officer from the prohibition against offering narcotics for sale if that offer is made in the course of the police officer’s responsibilities and for the purpose of a particular investigation. If the police officer only makes an offer, he does not need the certificate referred to in s. 8 or the authorization of a senior police officer. The requirement in s. 8 of a certificate from a very high ranking officer reflects the added risks inherent in a transaction which involves the actual production of drugs and their transfer to a member of the criminal element.
11[11] About two weeks after the CDSA and regulations came into force, the RCMP circulated a telex setting out its policy with respect to reverse stings. The telex authored by Chief Superintendent Charbonneau provided:
As you are all aware, the Controlled drugs and substances Act and its regulations were proclaimed on May 14th, thus legalizing reverse undercover operations. Please be advised that although permitted by the Regs., this method of investigation will be authorized by the Director of Federal Services only in exceptional circumstances. It will only be authorized in circumstances where it can reasonably be expected to lead to the apprehension and prosecution of the instigators and high level perpetrators of major crimes. Other methods of investigation will have to be attempted first or are unlikely to succeed, …
I would ask your assistance when reviewing operational plans concerning reverse sting operations, in confirming the above policy is complied with before forwarding the plans to DEB with your recommendations for final approval by the Director. …
Reverse undercover operations will not become common practice. This method will only be used under exceptional circumstances [Emphasis in original].
12[12] The policy set out in the Charbonneau telex was consistent with the pre-existing policy that required approval from Ottawa for all major undercover drug operations. It placed limits on the use of a reverse sting that were not present in the regulations. Those limits were particularly significant in so far as s. 15 was concerned, since the exemption created by that section, unlike the s. 8 exemption, did not require the authorization of a senior police officer.
13[13] The operation in issue on this appeal was the first reverse sting proposed by the RCMP in Ontario after the enactment of the CDSA and the proclamation of the regulations. The legality of the operation, particularly an offer to sell made by the undercover officers to the respondent on July 18, 1997, was a central issue at trial. The legality of that offer turned on whether it was made in the course of the officers’ responsibilities and for the purpose of a particular investigation, as required by s. 15. This led to a consideration of whether the conduct complied with the RCMP policy with respect to reverse stings and with instructions given from RCMP provincial headquarters in London concerning this specific investigation. Brennan J. heard detailed evidence describing the course of the undercover operation, particularly between late May and early August 1997.
III
Section 7 and Abuse of Process
14[14] Before turning to the evidence concerning the conduct of the investigation, the nature of the Charter claim must be clearly understood. The respondent alleged an abuse of process. His claim was not that the actions of the police violated his constitutional rights when those acts occurred, but rather that a prosecution founded on that conduct would constitute an abuse of the court’s process: R. v. Mack (1988), 1988 24 (SCC), 44 C.C.C. (3d) 513 at 540-43 (S.C.C.). The respondent argued that the abuse could only be avoided if all evidence gathered in the course of the reverse sting was excluded from evidence at trial.
15[15] It is well established that police conduct may render a subsequent criminal prosecution an abuse of process. This occurs if the conduct renders the trial itself unfair or if it is so offensive to community notions of fairness and decency as to demand that the court refuse to lend its processes to a prosecution dependant on such conduct: R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 at 33-39 (S.C.C.); R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 at 120-22 (S.C.C.).
16[16] The respondent did not claim that the police conduct affected his ability to get a fair trial. He did argue that the conduct was so contrary to community notions of fairness and decency to render any trial which included evidence obtained through that conduct an abuse of the court’s process. Although allegations of abuse of process premised on claims that the conduct would undermine the overall integrity of the process have traditionally been examined under the common law abuse of process doctrine, in R. v. O’Connor, supra, at pp. 39-40 L’Heureux-Dubé J. held that such claims are properly considered under s. 7 of the Charter. She explained:
… In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process [Emphasis added].
17[17] L’Heureux-Dubé J. was speaking of conduct of the prosecution, however, her words have equal application to police misconduct in the course of the investigation leading to the prosecution. There can be no doubt after R. v. O’Connor, supra, that a finding of an abuse of process, even one which does not impair trial fairness or any other specific procedural right protected by the Charter, will infringe an accused’s rights under s. 7 of the Charter.
18[18] Not all illegal police conduct will result in an abuse of process and, therefore, a breach of s. 7 of the Charter. As Binnie J. said in R. v. Shirose, supra, at p. 284:
The conclusion that the police conduct in undertaking a reverse sting is, on the facts of this case, illegal does not of itself amount to an abuse of process or, to take it a step further, entitle the appellants to a stay. The legality of police action is but a factor, albeit an important factor, to be considered in the determination of whether an abuse of process has taken place …
19[19] The ultimate question is not legality, but whether the police conduct was sufficiently egregious so as to shock the conscience of the community and demand that the court not lend its process to a prosecution flowing from such conduct. This inquiry demands not only a qualitative assessment of the nature of the misconduct, but also a consideration of the societal interests served by allowing the prosecution to proceed despite the police misconduct: R. v. O’Connor, supra, at p. 38; R. v. Shirose, supra, at p. 285. Placed in the context of the present case, the trial judge was required to consider the extent to which the police conduct reflected a disregard for the rule of law, established RCMP policies, and direct orders from superiors; and to balance that consideration against the societal interests in the prosecution on the merits of a very serious charge.
IV
The Conduct of the Investigation
20[20] In April 1996, officers with the Drug Section of the Milton detachment of the RCMP and officers with the Proceeds of Crime Section of the Newmarket detachment received information that the respondent was a major drug dealer. Constable Kevin Burk was the primary officer involved from the Newmarket section and was the directing force behind the subsequent investigation of the respondent. The undercover officers who actually dealt with the respondent took their direction from Constable Burk.
21[21] Constable Burk and officers from the Milton Drug Section decided to target the respondent in a major undercover operation involving a paid police agent and undercover police officers. A major undercover drug operation could only proceed with the approval of local supervisors in Newmarket and Milton, RCMP provincial headquarters in London, and national headquarters in Ottawa. Constable Burk and the Milton Drug Section submitted detailed operational plans for the purposed undercover operation. Those plans were approved by the local supervisors, provincial headquarters, and in November 1996 by national headquarters in Ottawa.
22[22] On November 29, 1996, shortly after the operation was approved, the respondent sold one kilogram of cocaine to a paid undercover police agent. That agent left Canada a short time later, but undercover police officers, posing as drug importers, maintained contact with the respondent. Between January 1 and the end of March 1997, the respondent repeatedly asked the undercover officers to bring cocaine into Canada for him to supply his distribution network.
23[23] In April 1997, Constable Burk was aware that the CDSA and the regulations legalizing reverse stings in certain circumstances were about to come into force. He believed that a reverse sting could be used to catch the respondent in a large-scale drug transaction. He knew that a reverse sting constituted a major undercover drug operation, and that he would need the approval of his immediate superiors, provincial headquarters in London and national headquarters in Ottawa. On May 26, 1997, Constable Burk submitted an amended investigative planning report in which he proposed that a reverse sting be used against the respondent. The report was very detailed and included a description of the background events, the feasibility of other investigative means, and the details of the proposed reverse sting. It was made clear that the operation would begin with the undercover officers indicating they were prepared to sell drugs to the respondent, proceed through negotiations as to amount and price and culminate in the actual sale of the cocaine and transfer of the money. It was anticipated that about two months would be needed to accomplish the reverse sting.
24[24] Constable Burk’s plan also discussed at some length legal issues that might arise if the reverse sting was used and led to a prosecution. In the course of discussing the potential application of any entrapment defence, Constable Burk wrote:
Undercover operators have deflected previous offers from JAGESHUR to purchase cocaine due to pending, and now legislative, authority. Understand that no offer has been made and will not be made without authority of an approved Operational Plan and issuance of a Certificate of Exemption, as regulated under Bill C-8 and its Regulations [Emphasis added].
25[25] On June 3, 1997, while still awaiting approval to proceed with the reverse sting, Constable Burk was advised by the undercover officers that the respondent had expressed a strong interest in obtaining a part of a shipment of cocaine which the undercover officers had led him to believe they would be receiving in June. Burk went to see William West, a lawyer with the Department of Justice. Burk wanted to know how far the undercover officers could legally go in what Constable Burk described as “opening negotiations”.
26[26] Mr. West told Constable Burk that under s. 15 of the regulations, an offer to sell could be made without a certificate from the Assistant Commissioner in Ottawa. West’s advice, which was clearly correct, was based entirely on the language of the regulations. Constable Burk did not discuss with Mr. West the plan he had submitted to Ottawa, his representation in that plan that no offer would be made until a certificate was issued, or any RCMP policy concerning major undercover drug operations or reverse stings.
27[27] A day or so later, Constable Burk spoke with a staff sergeant in Ottawa who, according to Burk, concurred with Mr. West’s interpretation of s. 15. Burk now believed that an offer to sell would not contravene the CDSA. He also knew, however, that RCMP policy required that national headquarters approve all major drug operations and that his proposed reverse sting, including the making of an offer to sell cocaine, was a major drug operation.
28[28] On June 4, 1997, Burk learned that provincial headquarters in London had declined to support his request for a reverse sting “at this time”. Consequently, the plan had not been forwarded to Ottawa for ultimate approval. Those who assessed the plan in London believed that it did not fall within the “exceptional circumstances” required under the policy described in the Charbonneau telex. London forwarded a copy of that telex to the Newmarket section. Constable Burk was unaware of the Charbonneau telex prior to receiving it from London.
29[29] Constable Burk had several discussions with a Corporal Higgins, one of the officers who had reviewed his proposed plan when it was sent to London. Higgins advised him that there were various reasons for refusing to approve the plan, including some uncertainty as to whether the respondent was actually a major drug dealer who was prepared to purchase a large quantity of cocaine. Higgins indicated to Burk that it was London’s position that the undercover operation should continue using conventional investigative methods.
30[30] Constable Burk spoke with Corporal Higgins on a number of occasions and tried to address the concerns raised by him. Burk testified that based on those discussions, he understood that if the undercover officers could get the respondent to put down a deposit towards the purchase of drugs, London would support Burk’s plan and submit it to Ottawa for approval. Burk testified that he understood a deposit could be obtained only if the undercover officers offered to sell drugs to the respondent. He took Corporal Higgins’ remarks as an indication that he could proceed with an offer. Constable Burk testified that this understanding was consistent with the interpretation of the regulations provided to him by Mr. West.
31[31] By July 15th, Constable Burk had come to the opinion that the undercover operation against the respondent would have to be completed by early September 1997. Disclosure requirements in another criminal prosecution against the respondent would compromise the undercover operation after that date. On July 15th, Burk and officers from the drug section of the Milton detachment decided that the undercover officers would offer to sell cocaine to the respondent. If the respondent declined the offer, the undercover officers would attempt to purchase cocaine from the respondent. Constable Burk’s supervisors in Newmarket supported this course of action as did the officers in charge of the Milton detachment. Constable Burk did not advise London or Ottawa that, contrary to his expressed intention in the plan submitted in May, he now intended to proceed with an offer to sell cocaine without the approval from Ottawa.
32[32] On July 18, 1997, the undercover officers met with the respondent. Following Constable Burk’s direction, they offered to sell cocaine to the respondent. Prices and amounts were discussed, but no agreement was reached. On July 21st, the respondent contacted the undercover officers and indicated he was willing to purchase at least eighteen kilograms of cocaine at $28,000 per kilogram. The undercover officers agreed, indicating they would sell eighteen kilograms for $504,000. The respondent agreed to provide a $50,000 deposit.
33[33] On July 22, 1997, the Newmarket and Milton detachments submitted amended requests to London headquarters asking that the previously rejected operational plan of Constable Burk be considered for forwarding to Ottawa for approval. The material sent to London described the developments of the investigation after July 15, 1997, including the making of the offer to the respondent, his willingness to both purchase eighteen kilograms of cocaine, and his commitment to provide a $50,000 deposit.
34[34] On July 29, 1997, London forwarded Burk’s plan to Ottawa with the following recommendation:
[T]his detailed Operational Plan is being recommended for approval, conditional upon JAGESHUR confirming his participation by “fronting” a substantial cash deposit towards the pending narcotics shipment.
35[35] London’s support for the plan, if a deposit could be arranged, was entirely consistent with what Constable Burk said he was told by Corporal Higgins in June 1997.
36[36] On August 7, 1997, Ottawa approved Constable Burk’s plan. Senior officers who reviewed the plan in Ottawa, however, made it clear that, in their view, Constable Burk had not followed RCMP policy. When notifying the Milton and Newmarket detachments that the plan was approved, Inspector St. Cyr wrote:
Please be advised that Director, Federal Services has approved your operation. However, upon reviewing the operational plan, it became evident that investigators agreed to utilize the undercover operation technique in this file with the support of their OIC’s prior to obtaining appropriate approval from the Director as required by O.M.ll.2.H.1.b. Please ensure that in the future, investigators are fully cognizant that prior to utilizing this technique, Director’s approval is mandatory. …
In light of the sensitivity of this type of operation, Director wishes to be kept abreast of any new development.
Good luck.
37[37] The concern over the conduct of the investigation was clarified in a memo prepared by Sergeant Sauve, one of the persons who reviewed the plan in Ottawa:
Upon reviewing “O” Div request, I certainly concur with this proposed operational plan. The actual take down plan is secure and covers all security measures. Tab “C”
However, it is important to point out that “O” Div initiated negotiations without HQ’s approval. In fact, the offer to sell was made on 97-07-18. Furthermore, U/C requested a meeting for 97-07-21 with target in order to discuss as a sign of good faith to deposit $50,000 towards the pending shipment. Again, as indicated in previous reverse’s involving “O” Div, I believe these actions are incorrect. We should maintain that any negotiations for reverse undercover operations requires Director’s approval. …
38[38] The certificates necessary under s. 8 of the regulations were provided on August 7, 1997. They were signed by H.A. Hutchinson, Acting Assistant Commissioner of the RCMP.
39[39] On August 8, the respondent put up an $80,000 deposit. He provided the $80,000 in the hopes of being able to eventually purchase 30 kilograms of cocaine.
40[40] On August 21, the respondent met with the undercover officers at a hotel and turned over some $413,000 to complete the purchase of eighteen kilograms of cocaine. Later that day, he attended at the undercover officers’ store front office, examined the cocaine and accepted delivery of eighteen kilograms. As he left the building, he was arrested while in possession of the cocaine.
V
The Findings of the Trial Judge
41[41] Brennan J. made the following findings of fact:
- Constable Burk knew that under the existing policy governing all major undercover drug operations, including reverse stings, approval from Ottawa was required before an offer to sell drugs to the respondent could be made.
- When Constable Burk told the undercover officers to offer to sell drugs to the respondent on July 18, 1997, he knew that he did not have the approval from Ottawa and that London had declined to send his plan to Ottawa for approval because it did not meet the “exceptional circumstances” requirement set out in the Charbonneau telex.
- Although Constable Burk had the approval of his immediate superiors and those in charge of the Milton detachment when he directed that an offer to sell should be made, he had not even sought the approval of London or Ottawa.
42[42] These findings of fact were open on the record before the trial judge and cannot be disturbed on appeal.
43[43] There was, however, one finding of fact made by Brennan J. which I do not think has any support in the evidence. He said:
It is correct to say that at the time of the approval in Ottawa and the issuance of the Exemption Certificates, there was no option. In my view, the senior officials had no real choice but to approve the plan and issue the Exemption Certificates.
44[44] Although there was some evidence that by proceeding to make an offer without Ottawa’s approval, Constable Burk put added pressure on Ottawa to approve his plan, the evidence was that the plan was approved on its merits. Assistant Commissioner Hutchinson, who had the ultimate decision, said:
… [B]ecause the process of dealing with the policy breach, if you want to call it that, is separate from accepting or refusing a reverse sting operation. A reverse sting has to be looked at on the merits and the facts before us.
45[45] The various memoranda produced at trial which criticized the conduct of the investigation also made it clear that the plan as submitted in August fully justified the authorization of a reverse sting.
VI
The Legality of the Police Conduct
46[46] The legality of the offer to sell made prior to the issuing of the certificates on August 7, 1997 turns on s. 15 of the regulations. The legality of the actual sale made after the issuing of the certificates turns on s. 8 of the regulations. The legality of both phases of the undercover operation had to be addressed to determine whether the police conduct could support an abuse of process as claimed. It does not follow that if the offer was illegal, that the sale made after the certificate was issued was also illegal.
(a) The offer to sell
47[47] The offer to sell made on July 18 was made by “active” police officers and for “the purposes of a particular investigation”. Compliance with s. 15 of the regulations depended on whether the offer was made “in the course of the member’s responsibilities”. To make that determination, the trial judge was required to make the necessary findings of fact, interpret the phrase “the member’s responsibilities” and apply that definition to the facts as he found them. As the findings of fact are supported by the evidence, the Crown cannot challenge them on this appeal. The interpretation of the language of the statute, however, raises a question of law: R. v. Moreau (1978), 1978 162 (SCC), 42 C.C.C. (2d) 525 at 535 (S.C.C.); R. v. Bebbington (1988), 1988 7083 (ON CA), 43 C.C.C. (3d) 456 at 458 (Ont. C.A.).
48[48] The respondent argued that the offer to sell was not made in the course of the members’ responsibilities because it was contrary to RCMP policy and made in the face of the refusal to authorize the reverse sting. The trial judge agreed with this contention indicating in Jageshur (Ont. S.C.J.), supra, at para. 69:
… [A]n officer who makes an offer to traffic in drugs to bring about a reverse sting as part of a major undercover operation, which by RCMP policy requires approval by the Director, Federal Services, when that approval has been refused specifically because of a policy directive of the Director, Federal Services regarding reverse sting techniques, is not “acting in the course of his responsibilities for the purpose of a particular operation.”
49[49] The word “responsibilities” in s. 15 refers, at a minimum, to the statutory duties imposed on members of the RCMP. Those duties are found in s. 18 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10. I need only refer to s. 18(a):
It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to police officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws enforced in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody; …
50[50] An officer’s duties and hence his or her responsibilities cannot be equated with instructions as to how those duties and responsibilities should be carried out. Police policies speak to the manner in which police should carry out their responsibilities, but do not define or limit those responsibilities. The distinction between an officer’s responsibilities and the manner in which those responsibilities are performed was made in Gauthier v. Brome Lake (Town), 1998 788 (SCC), [1998] 2 S.C.R. 3. In Gauthier, two police officers had brutally tortured a suspect in the course of an interrogation. The suspect sued the town which under the relevant legislation was vicariously responsible for damage caused by the police officers “in the performance of work for which they are employed”. The Town contended that the officers were not performing “work for which they [were] employed” when they tortured the suspect: para. 38. Gonthier J. rejected this submission indicating at para. 93:
There is no doubt that at the time they brutally beat the appellant, the respondents [the police officers] … were performing the duties for which they were employed: they were on duty and were conducting an interrogation in the course of a criminal investigation into allegations of theft of a safe [Emphasis added].
51[51] Constable Burk and the others involved in the undercover operation had a duty to investigate the respondent and gather evidence for his potential prosecution. They were engaged in those duties when the offer to sell was made and were, therefore, in my view, acting in the course of their responsibilities. If their actions were contrary to RCMP policy, they were performing their responsibilities in an inappropriate way, but were nonetheless still performing their responsibilities.
52[52] My conclusion that the officers’ responsibilities were not circumscribed by the RCMP policy concerning major drug operations and reverse stings is fortified by a consideration of the nature of these policies. Section 21(1)(b) of the Royal Canadian Mounted Police Act authorizes the Governor in Council to make regulations for the conduct and performance of duties by members of the RCMP. Section 21(2)(b) authorizes the Commissioner of the RCMP to make rules (standing orders) for the conduct and performance of duties by members of the RCMP. Section 38 of the same Act authorizes the Governor in Council to make regulations governing the conduct of members (Code of Conduct). The policies in issue on this appeal did not spring from any of these statutory sources. They were, according to Assistant Commissioner Hutchinson, “general guidelines” intended to promote the selective and uniform use of exceptional investigative techniques. There is no suggestion in the evidence that the failure to comply with these policies necessarily resulted in any internal discipline. Clearly, those in charge of the policy in Ottawa did not consider that a breach of the policy should foreclose approval of a reverse sting operation. Assistant Commissioner Hutchinson, while acknowledging that officers were not free to ignore the policy, said:
… Generally, it is a guide, and there will be processes to work it out, if there is a difference of opinion and whether the actions were correct or not.
53[53] In my view, Constable Burk’s failure to follow the policy guidelines provided in the Charbonneau telex did not take his conduct and that of the other officers involved in the undercover operation outside of the ambit of their responsibilities as police officers. This conclusion is consistent with the analysis provided by Curtis J. in R. v. Dallas, [2002] DCSC 760 at paras. 91-108 (B.C.S.C.).
54[54] In addition to failure to comply with RCMP policy, there is a second aspect to Constable Burk’s conduct which is relevant to the availability of the exemption granted under s. 15 of the regulations. It is argued that Constable Burk acted in contravention of a direct order not to proceed with his proposed operation. The duties of an RCMP officer as set out in s. 18 of the Royal Canadian Mounted Police Act are “subject to the orders of the Commissioner”. It is at least arguable that an officer who proceeds against orders from the Commissioner, or a person to whom the Commissioner has delegated the authority to make orders (Royal Canadian Mounted Police Act, s. 5(2)) is not performing his or her duties and is, therefore, not acting in the course of his or her responsibilities: Wool v. Canada, [1981] F.C.J. No. 506 (F.C.T.D.).
55[55] On the trial judge’s findings, there can be no doubt that Constable Burk proceeded without the appropriate authority. I do not, however, find any evidence that he proceeded in the face of a clear order not to make an offer to the respondent without the approval of Ottawa. Constable Burk did not receive any orders from Ottawa before instructing the undercover officers to make the offer, so it cannot be said that he acted in contravention of any order from Ottawa. Constable Burk was advised that London could not approve of his plan “at this time” because it did not meet the criteria set out in the Charbonneau telex. London did not unequivocally reject the proposed reverse sting but instead indicated that the investigation should continue using conventional means. Based on his subsequent discussions with Corporal Higgins, Constable Burk understood that those means should include obtaining a deposit from the respondent. Constable Burk quite naturally understood this to at least imply that an offer should be made. Considering the totality of the evidence, I do not think that Constable Burk received a clear instruction from London that he could not proceed with an offer. Instead, he seems to have received a rather mixed message. The offer to sell was expressly approved of by Constable Burk’s superiors in Newmarket and those in charge of the investigation in Milton. Their approval was a fully informed one.
56[56] A distinction should be drawn between proceeding without the proper approval and proceeding in contravention of a clear order not to proceed. Constable Burk is properly criticized for the former, but not the latter. Constable Burk was acting in the course of his responsibilities when he directed the undercover officers to offer to sell cocaine to the respondent. The trial judge erred in law in equating non-compliance with internal policies referable to the manner in which the officer should perform his duties with the nature and extent of the responsibilities themselves. The offer to sell made on July 18, 1997 was exempt under s. 15 of the regulations from the prohibition against trafficking in the CDSA.
(b) The sale
57[57] By the time the undercover officers sold the cocaine to the respondent and received payment from him, they had received the necessary certificates from the Assistant Commissioner and had full approval for the plan from Ottawa. The requirements of s. 8 of the regulations were clearly met. The sale was exempt from the trafficking prohibition in the CDSA and was not illegal.
58[58] The trial judge did not consider the legality of the sale by the police except to hold that Assistant Commissioner Hutchinson was authorized to issue the certificates. Assistant Commissioner Hutchinson issued the certificates authorizing the sale knowing full well that the impugned offer had been made without authorization. The conduct of the police after the certificate was issued provided overwhelming evidence of the respondent’s guilt. Even if the offer was illegal, the subsequent sale was not. The entirety of the conduct should have been addressed in considering whether the prosecution of the respondent would constitute an abuse of process.
59[59] It may well be that the trial judge did not address the significance of the legality of the police conduct after the certificate was issued because of his conclusion that Assistant Commissioner Hutchinson had “no real choice” but to issue the certificates. For the reasons set out above, the evidence offers no support for that conclusion.
60[60] The respondent does attack the legality of the police conduct after the issuing of the certificate. He contends that the court can review “the propriety of the decision to issue the certificates” in the same way that the court reviews a decision to issue a search warrant or a wiretap authorization. Counsel argues that such a review in this case establishes that Assistant Commissioner Hutchinson was misled by the material provided to him in support of the request for the certificate and that the request did not meet the criteria established under RCMP policy for the approval of a reverse sting. He submits that these flaws render the certificate invalid.
61[61] I must reject this submission. Search warrants and wiretap authorizations are judicial orders that authorize intrusions into constitutionally protected rights. Those orders are subject to review to ensure that the intrusions they authorize meet the standards mandated by the Constitution. The Assistant Commissioner’s decision to issue a certificate under s. 8 of the regulations did not compromise anyone’s constitutional rights. I am unaware of any constitutional standard that would have application to the determination of whether the certificate should issue. In issuing the certificate, Assistant Commissioner Hutchinson was making an operational decision. He was deciding how a particular investigation should be conducted. Courts do not review the “propriety” of police operational or tactical decisions: R. v. Chief Constable of Sussex, [1999] 1 All. E.R. 129 at 136-37 (H.L.). That is not to say that the decision was entirely immune from judicial review. A court could properly determine whether the statutory preconditions to the issuing of a certificate existed. The court could not, however, concern itself with whether the certificate should have been issued or go behind the certificate in determining whether the transaction was exempt from the prohibition against trafficking.
62[62] The circumstances surrounding the issuing of the certificate may, however, be relevant to an abuse of process claim. An abuse of process claim can be made even where the police conduct is not illegal. For example, a claim that the Assistant Commissioner acted in bad faith when he issued a certificate, or a claim that he was deliberately misled by those applying for the certificate could be advanced in an abuse of process argument without challenging the validity of the certificate. There is no suggestion that Assistant Commissioner Hutchinson acted in bad faith. It was argued that he was misled, yet the trial judge made no findings of fact to support that contention. My review of the material satisfies me that Constable Burk made full disclosure through his superiors and provincial headquarters in London to those who considered his plan in Ottawa.
63[63] Finally, in limiting the scope of judicial review of the decision to issue the certificate, I do not intend to diminish the importance of that decision. By issuing the certificate, Assistant Commissioner Hutchinson authorized the police to engage in what would otherwise be criminal conduct. That decision raises policy concerns of the utmost importance. The approach taken by senior officers in the RCMP to the request for a certificate demonstrates an appreciation of the importance of that decision.
VII
64[64] The trial judge’s conclusion that the prosecution of the respondent would amount to an abuse of process flowed entirely from his finding that the offer to sell cocaine to the respondent was an illegal act. For the reasons set out above, I am satisfied that the offer and the subsequent sale were exempt from the prohibition against trafficking in the CDSA and were not illegal. As I find no illegality, the trial judge’s finding of an abuse of process cannot stand. In so concluding, I should not be taken as necessarily agreeing with the trial judge’s finding of an abuse, even if the sale was not exempted under the regulations.
VIII
The Exclusion of the Evidence
65[65] Since I am satisfied there was no breach of the respondent’s Charter rights, I do not need to consider whether the trial judge erred in law in excluding all of the evidence obtained during the reverse sting under s. 24(2) of the Charter. I will, however, briefly address the remedy granted by the trial judge.
66[66] Section 24(2) has no application to the Charter claim raised by the respondent. The remedy described in s. 24(2) operates where evidence is “obtained in a manner that infringed or denied” a Charter right. The respondent did not claim that the evidence gathered during the reverse sting was obtained in a manner that violated his Charter rights. His claim was that the use of the evidence in a criminal proceeding against him would infringe his rights under s. 7 of the Charter. If there was a Charter breach, it occurred not when the evidence was gathered, but when it was proposed to use that evidence in a prosecution.
67[67] Although the remedial powers of s. 24(2) were not engaged, the broader powers in s. 24(1) of the Charter would have been available to the respondent had he established a breach of s. 7. Those powers include the power to exclude evidence: R. v. White (1999), 1999 689 (SCC), 135 C.C.C. (3d) 257 at 290-91 (S.C.C.); R. v. Harrer (1995), 1995 70 (SCC), 101 C.C.C. (3d) 193, per McLachlin J. concurring at 210-211. These cases hold that evidence may be excluded under s. 24(1), even if it was not obtained in violation of the Charter, if its admission into evidence would render the trial unfair.
68[68] There is no claim in this case that the admission of the evidence would impair trial fairness. It may well be, however, that evidence may also be excluded under s. 24(1) where that exclusion is essential to maintain the integrity of the process: see R. v. O’Connor, supra, at pp. 36-37; R. v. Xenos (1991), 1991 3455 (QC CA), 70 C.C.C. (3d) 362 at 374-75 (Que. C.A.).
69[69] The respondent’s application to exclude evidence should have been brought under s. 24(1) of the Charter. In determining whether exclusion would be the appropriate remedy, the trial judge would have had to examine the substance of the remedy sought and not the label used by counsel. Although the remedy was framed in terms of the exclusion of evidence, it was in reality an application to terminate the prosecution. Had the respondent established a breach of s. 7, the trial judge would have been required to decide whether it was “appropriate and just” to foreclose the prosecution of the respondent. The case law limiting the availability of a stay of proceedings to the “clearest of cases” would have had direct application to that decision.
IX
70[70] I would allow the appeal, set aside the acquittal and direct a new trial.
RELEASED: “OCT 31 2002”
“DD”
“Doherty J.A.”
“I agree Janet Simmons J.A.”
“I agree Robert P. Armstrong J.A.”
Footnotes
- [1] The respondent was also charged with trafficking in cocaine in connection with the one kilogram sale in November 1996 and with an offence arising out of his possession of a firearm at the time of his arrest. He eventually pled guilty to these charges and they are not in issue on this appeal.
- [2] In the notice of application, the respondent sought only the exclusion of the cocaine, however, in his submissions to the trial judge, counsel made it clear that the application extended to all evidence gathered in the course of the reverse sting.
- [3] Controlled Drugs and Substances Act (Police Enforcement) Regulations, S.O.R./97-234.
- [4] Section 8 also imposes certain requirements with respect to the origin of the narcotics used in the sale. Those requirements are irrelevant to this appeal.
