COURT OF APPEAL FOR ONTARIO
Laskin, Blair and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Aliu Imoro
Respondent
Morris Pistyner and Lisa Csele, for the appellant
Benjamin Moss, for the respondent
Heard: October 6, 2009
On appeal from the acquittal entered by Justice Nancy J. Spies of the Superior Court of Justice, sitting without a jury, on June 25, 2008, with reasons reported at (2008), 2008 CanLII 30696 (ON SC), 235 C.C.C. (3d) 86.
A. INTRODUCTION
1This is a Crown appeal. The main question on the appeal is whether the trial judge erred in law in finding that the respondent, Aliu Imoro, was entrapped by the police into committing drug trafficking offences. Two subsidiary questions also arise: whether the trial judge erred in considering the issue of entrapment at the beginning of the trial rather than at the end of the trial after making a finding that the accused was guilty; and whether the trial judge erred in the remedy she imposed – an order excluding the evidence under s. 24(2) of the Charter rather than an order staying proceedings for an abuse of process.
B. BACKGROUND
1) The underlying facts
2The facts giving rise to these questions are brief and not in dispute. The police received an anonymous tip that a man was selling drugs on the twelfth floor of an apartment building on Jane Street in Toronto. They decided to investigate the tip. An undercover officer went to the apartment building and took the elevator to the twelfth floor. When the elevator doors opened, a man, who turned out to be Mr. Imoro, approached the officer and said, “Come with me.” The officer responded, “You can hook me up?” Mr. Imoro answered, “Yeah man.”
3Mr. Imoro led the officer and another man who had been on the elevator with the officer to his apartment. Once inside, Mr. Imoro sold some marijuana to the other man. Mr. Imoro then asked the officer what he needed. The officer said “hard”, meaning crack cocaine. Mr. Imoro said that he had only “soft”, meaning powder cocaine. The officer asked for $40 worth. Mr. Imoro gave him a bag of powder cocaine from some prepackaged supplies. The officer then gave Mr. Imoro $40, using police “buy money”.
4The next day, the officer went back to Mr. Imoro’s apartment. Mr. Imoro opened the door, greeted the officer and sold him another $40 worth of powder cocaine. The police then obtained a search warrant for Mr. Imoro’s apartment. They executed the warrant and seized cocaine, marijuana and the police buy money. Mr. Imoro was arrested and charged with two counts each of trafficking in cocaine, possession of controlled substances (cocaine and marijuana) for the purpose of trafficking, and possession of the proceeds of crime.
5Mr. Imoro was tried before Spies J. He pleaded not guilty. Although he did not testify, he claimed entrapment and brought a motion to exclude the evidence or stay the proceedings.
2) The trial judge’s decision
6The trial judge ruled that because she was sitting without a jury she could consider the issue of entrapment before making a finding of guilt. She therefore dealt with the issue as a pre-trial Charter motion. She found that the conduct of the undercover officer amounted to entrapment.
7The trial judge then excluded the seized drugs and buy money under s. 24(2) of the Charter, and acquitted Mr. Imoro. Alternatively, she stated that she would stay the proceedings.
C. DISCUSSION
1) Did the trial judge err in law by finding entrapment?
(a) The doctrine of entrapment
8The doctrine of entrapment reflects judicial disapproval of unacceptable police or prosecutorial conduct in investigating crimes. The contours of the doctrine were discussed at length by Lamer J. in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903. He sought to balance two competing objectives. On the one side, he recognized that the police must have considerable leeway in the techniques they use to investigate criminal activity. Especially in the investigation of consensual crimes – of which drug trafficking is an example – traditional techniques may be ineffective.
9On the other side, Lamer J. also recognized that the power of the police to investigate criminal activity cannot be untrammeled. In their efforts to investigate, deter and repress crime, the police should not be permitted to randomly test the virtue of citizens, or to offer citizens an opportunity to commit a crime without reasonable suspicion that they are already engaging in criminal activity, or worse, to go further and use tactics designed to induce citizens to commit a criminal offence. To allow any of these investigative techniques would offend our notions of decency and fair play.
10Lamer J. struck the balance between these objectives by concluding that entrapment arises in either of two situations: first, when state authorities, acting without reasonable suspicion or for an improper purpose, provide a person with an opportunity to commit an offence; and second, even having reasonable suspicion or acting in the course of a good faith inquiry, the police go beyond providing an opportunity to commit a crime and actually induce the commission of an offence.
11Ordinarily, when entrapment is claimed, the essential elements of the offence charged have been made out. However, if entrapment is subsequently found, the court will not allow the Crown to maintain a conviction because to do so would be an abuse of process and bring the administration of justice in disrepute. So instead, the court will stay the proceedings.
(b) Application to this case
12In the present appeal we are dealing with the first of Lamer J.’s two scenarios: whether the undercover officer entrapped Mr. Imoro because he gave him an opportunity to engage in drug trafficking without reasonable suspicion. The second of Lamer J.’s two scenarios is not in issue because on any interpretation of the evidence the undercover officer did not induce the drug trafficking that occurred.
13To make out entrapment on the first scenario requires two findings: first, a finding that the police provided an opportunity to commit an offence; and second, a finding that the police did so without reasonable suspicion. The trial judge found entrapment occurred at the time of the initial contact between the undercover officer and Mr. Imoro. She found that the officer’s question, “Can you hook me up?” was the first reference to drugs and amounted to giving Mr. Imoro an opportunity to traffic. She also found that when the officer gave Mr. Imoro the opportunity to sell drugs he did not have reasonable suspicion that Mr. Imoro was engaged in drug trafficking. The critical findings of the trial judge are at para. 39 of her reasons:
I, therefore, find that Officer Matthews was the one who first raised the subject and that he was the one who asked to purchase drugs; there was no prior offer by Mr. Imoro. There is no evidence that would support a finding that Officer Matthews had a reasonable suspicion that Mr. Imoro was engaged in criminal activity before he asked him if he could “hook” him up.
14I accept the trial judge’s finding that when the officer asked Mr. Imoro, “Can you hook me up?” he did not have reasonable suspicion that Mr. Imoro was engaged in drug trafficking.
15However, I cannot accept the trial judge’s companion finding that the officer’s question provided Mr. Imoro with an opportunity to sell drugs. That view of the evidence mischaracterizes what occurred. This mischaracterization stems from a failure to properly distinguish between legitimately investigating a tip and giving an opportunity to commit a crime: see R. v. Townsend, [1997] O.J. No. 6516 (Gen. Div.).
16By the question “Can you hook me up?” all the officer really asked Mr. Imoro was whether he was a drug dealer. The question was simply a step in the police’s investigation of the anonymous tip. It did not amount to giving Mr. Imoro an opportunity to traffic in drugs. That opportunity was given later when the officer and his fellow passenger in the elevator were inside Mr. Imoro’s apartment. By then, having observed a drug transaction between Mr. Imoro and the other man, the officer certainly had reasonable suspicion – indeed virtually certain belief – that Mr. Imoro was engaged in drug trafficking.
17Therefore, I conclude that there was no evidence to support the trial judge’s finding of entrapment. A finding unsupported by any evidence is an error of law: see R. v. Whittle (1992), 1992 CanLII 12777 (ON CA), 59 O.A.C. 218 (C.A.), aff’d 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914. The Crown, although limited to appeals on a question of law, is entitled to succeed on this appeal.
18I would set aside the finding of entrapment and the acquittals based on it. Mr. Imoro acknowledges that apart from the issue of entrapment, he was guilty of the offences charged. At para. 72 of her reasons, the trial judge noted that she would have found Mr. Imoro guilty:
I should state at the outset, that had I decided to proceed with the Defence application at the conclusion of the trial, I would have found Mr. Imoro guilty of all the charges based on the evidence and his admissions. After the voir dire concluded, Mr. Moss made a formal admission that any drugs found in Mr. Imoro’s possession were there for the purpose of trafficking, that it was Mr. Imoro who the officer dealt with and that there were no issues as to jurisdiction or continuity. Mr. Moss did not raise any defence, save for his argument based on entrapment.
19Accordingly, the proper disposition of this appeal is to set aside the acquittals, enter verdicts of guilty and return the case to the trial court for the sentencing of Mr. Imoro.
20Because of this disposition, it is unnecessary to address the two subsidiary issues raised by the Crown. However, as these issues were canvassed at length by the trial judge and were argued before us, I will say a few words about each.
2) Should a claim on entrapment be considered at the beginning of the trial?
21The trial judge held that as she was sitting without a jury, she could consider whether the undercover officer’s conduct amounted to entrapment at the outset of the trial before determining whether Mr. Imoro was guilty. This holding, respectfully, is contrary to Mack and to the Supreme Court of Canada’s later decision in R. v. Pearson, 1998 CanLII 776 (SCC), [1998] 3 S.C.R. 620.
22In Mack, Lamer J. stated at p. 972: “[B]efore a judge considers whether a stay of proceedings lies because of entrapment, it must be absolutely clear that the Crown had discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence.”
23Although in Mack the accused was tried by a jury, I do not read Lamer J.’s statement as being limited to jury trials. In the very next sentence on p. 972 he added, “if this is not clear and there is a jury, the guilt or innocence of the accused must be determined apart from evidence which is relevant only to the issue of entrapment.” Why should guilt or innocence be determined before a judge considers entrapment? Lamer J. provides the answer: “This protects the rights of an accused to an acquittal where the circumstances so warrant.”
24In Pearson, Lamer C.J. and Major J. writing for the majority noted that entrapment is not a conventional defence. It puts in issue not the accused’s culpability but the conduct of the state. Thus, as the majority notes at para. 15, “It arises after a fair trial has found the accused guilty.” Accordingly, a claim of entrapment leads to a “two-stage trial”. At the first stage, the trier of fact determines whether the accused is guilty. If the accused is found guilty, the trial moves to the second stage where the judge considers the claim of entrapment. In setting out these two stages, the Supreme Court did not distinguish between jury and non-jury trials. Whatever the mode of trial, the judge ought to consider entrapment only after a finding of guilt.
3) Remedy: A stay for abuse of process or exclusion of evidence under section 24(2) of the Charter?
25In Pearson, Lamer C.J. and Major J. wrote that “a claim of entrapment is in reality a motion for a stay of proceedings based on the accused’s allegation of an abuse of process.” Indeed, a stay is the standard remedy where entrapment is established.
26Nonetheless, in this case the trial judge held that the evidence obtained by the police as a result of entrapment could be, and in this case should be, excluded under s. 24(2) of the Charter. Having decided the question of entrapment at the outset of the trial before determining guilt, and having excluded the evidence against Mr. Imoro under s. 24(2) of the Charter, the trial judge was able to enter acquittals.
27The Crown contends that the remedy of exclusion of evidence under s. 24(2) of the Charter rather than a stay of proceedings for abuse of process distorts the underpinnings of the doctrine of entrapment. Admittedly, in Mack, as the trial judge noted in this case, Lamer J. left open “the propriety of a s. 24(2) application to exclude evidence because of entrapment.” Similarly, I need not decide the issue here because I would set aside the trial judge’s finding of entrapment.
28Nonetheless, I think the Crown’s contention has merit. A court considers s. 24(2) of the Charter where the state has improperly obtained evidence of an offence. A court considers entrapment where the accused alleges the state has improperly brought about the commission of the offence. Under s. 24(2), the court must determine whether the admission of the evidence would compromise the fairness of the trial. On a claim of entrapment, the court does not consider the fairness of the trial, but instead whether it was fair that there was a trial. These considerations suggest that a s. 24(2) remedy is ill-suited for a finding of entrapment.
D. CONCLUSION
29In my view, the trial judge’s finding that the police conduct amounted to entrapment was an error of law because there was no evidence to support it. I would set aside that finding and the acquittals of Mr. Imoro. As he otherwise acknowledged his guilt, I would enter verdicts of guilty and return the case to the trial court for sentencing.
RELEASED: Feb. 12, 2010 “John Laskin J.A.”
“JL” “I agree R.A. Blair J.A.”
“I agree David Watt J.A.”
