Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220211 DOCKET: C68429

Feldman, MacPherson and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Thomas Zakos Appellant

Counsel: Thomas F. Balka, for the appellants David Quayat, for the respondent

Heard: January 18, 2022 by video conference

On appeal from the convictions entered on October 26, 2018 by Justice Sharon Lavine of the Superior Court of Justice, and from the dismissal of an application for a stay of proceedings on March 1, 2019.

Thorburn J.A.:

Overview

1The appellant, Thomas Zakos, appeals his convictions for three counts of trafficking in cocaine, and possession of the proceeds of crime. He has served his sentence.

2The appellant claims he was entrapped by the police and that the trial judge therefore erred in declining to stay the charges against him.

3The issues to be addressed are:

i. When Detective Constable Green gave the appellant the opportunity to traffic cocaine;

ii. Whether Detective Constable Green formed a reasonable suspicion that the appellant was already engaged in trafficking before giving him the opportunity to traffic cocaine; and

iii. Whether the circumstances in this case are the same as in the case of Mr. Williams, one of the appellants in R. v. Ahmad, 2020 SCC 11 (“Ahmad SCC”), such that the appellant should also be found to have been entrapped.

Background Facts

4On July 20, 2016, Detective Constable Green received an anonymous tip. The tip was that Thomas Zakos, who went by the name “TJ”, was a cocaine and marijuana dealer who conducted his drug deals at the Ultramar gas station near Durham College in Oshawa, using the cellphone number 613-329-8098.

5After receiving the tip, Detective Constable Green checked the police record management system and MTO records and found a person named Thomas Zakos with an address in Lyndhurst, Ontario who had no criminal record.

6Detective Constable Green continued his investigation of this tip by texting the target at the number 613-329-8098. He and the target exchanged the following text messages:

Green : This tj?

8098 : Who is this

Green : Scot, got your number from my cousin. You still around the college?

8098 : Who’s your cousin

8098 : Yes still close but I moved

Green : Jay said he got off you at the gas station a while back. U good for powder?

8098 : How much were you looking for

Green : How much for a b?

8098 : 230

8098 : Real nice

Green : That’s good man… Good stuff tho?

8098 : It’s real nice. haven’t had a complaint all year haha

Green : When can u meet?

8098 : Let me text me roommate he can meet you I’m out of town.

Green : Ok let me know. how long u think he’ll be?

8098 : An hour, I think.

Green : you want me to message you or your roommate

8098 : 289-928-5474.

7Detective Constable Green then sent a text message to the phone number given to him by the target, 289-928-5474. Later that day, Detective Constable Green purchased 2.8 grams of cocaine from the appellant’s contact at 1756 McGill Court in Oshawa.

8On July 21, 2016, Detective Constable Green again texted 613-329-8098 (the number for TJ) and arranged to purchase a “half ball” of cocaine. He collected 1.76 grams of cocaine later that day from the appellant’s contact at 1756 McGill Court.

9Later in the evening on July 21, 2016, Detective Constable Green attended 1756 McGill Court again. The appellant met him at the door and went down to the basement of the residence to retrieve the drugs. Detective Constable Green purchased a “half ball” of cocaine from the appellant for $130.

10Early in the morning on July 22, 2016, a search warrant was executed at the premises and the appellant was arrested. Thirty-three grams of cocaine were found on a desk in the basement of the residence. (The appellant was acquitted of the charge of possession for the purpose of trafficking relating to the 33 grams of cocaine. The trial judge held that the area where the 33 grams were found was accessible to all and that there were no personal identifiers nearby linking it to the appellant. She therefore concluded that, in all the circumstances, the Crown had not proven beyond a reasonable doubt that the appellant had knowledge and some measure of control over the package.)

11The appellant was convicted of three charges of trafficking in cocaine from July 20 to July 22, 2016, and possession of the proceeds of crime.

The Application for a Stay of Proceedings

12After his conviction but before being sentenced, the appellant sought a stay of proceedings on the grounds that he had been entrapped.

13He claimed he was provided the opportunity to traffic cocaine when Detective Constable Green asked the appellant, “U good for powder?” (In drug parlance, cocaine in powder form). He further claimed that at this point, police had not yet formed a reasonable suspicion that the appellant was engaged in criminal activity or that the phone line was being used to traffic cocaine. This, he said, was entrapment by Detective Constable Green and for this reason, a stay of proceedings should be entered.

14The respondent took the position that the appellant was not entrapped as the question “U good for powder?” was simply an open-ended, exploratory question about whether the appellant was a drug dealer. It was not until Detective Constable Green asked, “How much for a b?” that the appellant was given the opportunity to commit the offence of trafficking cocaine, which he did. The respondent therefore claimed the appellant was not entrapped.

The Trial Judge’s Decision on the Issue of Entrapment

15The trial judge dismissed the appellant’s application for a stay of proceedings. She held that the appellant was not entrapped because:

This was not a random call or random virtue testing, but a focused investigation directed at a particular phone line.

Although the person on the phone did not confirm he was TJ, he did not question it or redirect the caller. Moreover, he continued to engage in conversation responding that he was still around the college, adding to the development of reasonable suspicion.

The call continued, not with a request to purchase a specific quantity of drugs but a less definite and still, more in the nature of an exploratory question, employing language commonly used in the drug trade.

Applying the principles and tests set out in Williams and Ahmad , I find that Detective Constable Green had a reasonable suspicion that the phone line was being used as a means for a prospective drug buyer to contact the seller and arrange to purchase drugs and was engaged in a bona fide inquiry.

As a result, Mr. Zakos and Mr. Walsh have not met their burden of establishing entrapment on a balance of probabilities. It is not one of the clearest of cases warranting a stay.

The Issues on This Appeal

16The appellant’s position on this appeal is that the trial judge erred in concluding that he was not entrapped by Detective Constable Green. Specifically, he claims the trial judge erred:

i. in deciding that Detective Constable Green’s question, “U good for powder” did not provide the appellant an opportunity to commit a crime, and

ii. in holding that Detective Constable Green did not provide the appellant with the opportunity to traffic cocaine until he asked, “How much for a b?”

17The trial judge relied on this court’s decision in R. v. Ahmad, 2018 ONCA 534, 141 O.R. (3d) 241 (“Ahmad ONCA”), rev’d in part, 2020 SCC 11 (“Ahmad SCC”).

18The trial judge did not have the benefit of the Supreme Court’s judgment in Ahmad SCC when she rendered her decision on this application.

19The appellant claims his situation is indistinguishable from that of Mr. Williams, one of the appellants in Ahmad SCC, who received a stay of proceedings by the Supreme Court on the grounds that he was entrapped. As such, he claims a stay of proceedings should be entered.

20Before analyzing the circumstances in this case, I will set out the legal test for finding entrapment.

The Law of Entrapment

What is Entrapment?

21Entrapment is the “conception and planning of an offence by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer”: R. v. Mack, [1988] 2 S.C.R. 903, at pp. 917-18, citing Sorrells v. United States, 287 U.S. 435 (1932), at p. 454.

22Entrapment is not a defence. It is an application of the doctrine of abuse of process for which the remedy is to stay the proceedings: Mack, at pp. 938-42; Ahmad SCC, at paras. 16-17.

Reasons for the Entrapment Remedy

23Entrapment recognizes that the state may not engage in conduct that violates the notions of decency and fair play as the ends do not justify the means utilized: Mack, at pp. 938-40; Ahmad SCC, at para. 16. The administration of justice would be brought into disrepute if the state were permitted to punish someone whom the state itself caused to transgress: Mack, at pp. 938-42, 944; Ahmad SCC, at paras. 16-17.

24The entrapment framework balances the need to protect privacy interests and personal freedom from state intrusion against the state’s legitimate interests in investigating and prosecuting crime: Mack, at pp. 941-42; Ahmad SCC, at para. 22.

25In Mack, Lamer J. (as he then was), explained, at p. 941:

There is perhaps a sense that the police should not themselves commit crimes or engage in unlawful activity solely for the purpose of entrapping others, as this seems to militate against the principle of the rule of law. We may feel that the manufacture of crime is not an appropriate use of the police power.... Ultimately, we may be saying that there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions. These reasons and others support the view that there is a societal interest in limiting the use of entrapment techniques by the state.

26He noted, at p. 917:

There is a crucial distinction, one which is not easy to draw, however, between the police or their agents–acting on reasonable suspicion or in the course of a bona fide inquiry–providing an opportunity to a person to commit a crime, and the state actually creating a crime for the purpose of prosecution. The former is completely acceptable as is police conduct that is directed only at obtaining evidence of an offence when committed. The concern is rather with law enforcement techniques that involve conduct that the citizenry cannot tolerate. [Emphasis in original; citations omitted.]

27Because the state is not permitted to engage in abusive police conduct, where police are involved in the commission of an offence, entrapment is made out and a stay of proceedings will be entered: Mack, at para. 942; Ahmad SCC, at para. 16.

28A finding of entrapment is reserved for the “clearest of cases” of intolerable state conduct: Mack, at pp. 976-77; R. v. Ray, 2020 ONCA 351, 155 O.R. (3d) 481, at para. 36.

The Two Branches of Entrapment

29There are two alternative branches of entrapment, either of which may lead to a finding of entrapment justifying a stay of proceedings:

i. Where police offer an individual the opportunity to commit an offence without acting on a reasonable suspicion that the individual is already engaged in that type of criminal activity or pursuant to a bona fide inquiry; or

ii. Where, although acting with reasonable suspicion or pursuant to a bona fide inquiry, police go beyond providing an opportunity to commit an offence and induce a person to commit an offence: Mack, at pp. 964‑65; Ahmad SCC, at para. 15.

The Factors to be Considered on the First Branch of Entrapment

30The parties agree that while the appellant was given the opportunity to traffic cocaine, he was not induced to do so. As such, only the first branch of entrapment is at issue in this case, that is, whether Detective Constable Green offered the appellant the opportunity to traffic cocaine without reasonably suspecting that he was engaged in trafficking cocaine.

A. Reasonable suspicion as a prerequisite to providing an opportunity to commit an offence

31Entrapment under the first branch is made out when police provide the accused with an opportunity to commit an offence, without first having a reasonable suspicion that either “(1) a specific person is engaged in criminal activity; (2) people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry”: Ahmad SCC, at para. 19, citing Mack, at pp. 956, 959. A bona fide inquiry is not a separate and freestanding way to entrap an individual, but describes the reasonable suspicion standard in a location: Ahmad SCC, at para. 20; R. v. Henry-Osborne, 2021 ONCA 561, at para. 16.

32In the context of a dial-a-dope operation, police must have a reasonable suspicion that the person answering the phone is already engaged in drug trafficking before providing an opportunity to traffic drugs: Ahmad SCC, at para. 42; Henry-Osborne, at para. 16. The factors supporting reasonable suspicion may relate to the individual, the telephone number, or both: Ahmad SCC, at para. 42.

33When police receive a tip, a police officer may develop reasonable suspicion before contacting the target, or in the course of a conversation with the target: Ahmad SCC, at para. 54.

34If the police have not formed a reasonable suspicion before making the call, they must form a reasonable suspicion in the course of the call before providing an opportunity to commit a crime: Ahmad SCC, at para. 69.

35The difficulty lies in determining at what point in a conversation exploration ends, and an opportunity to commit an offence is provided.

B. What constitutes reasonable suspicion

36Reasonable suspicion requires a “constellation of objectively discernible facts” giving the officer “reasonable cause to suspect” that a certain kind of offence is being committed by a particular person in a particular place: Ahmad SCC, at para. 46, citing R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 501.

37The “reasonable suspicion standard requires only the possibility, rather than the probability, of criminal activity”: Ahmad SCC, at para. 46. The suspicion must be “focused, precise, reasonable, and based in ‘objective facts that stand up to independent scrutiny’”: Ahmad SCC, at para. 46, citing R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 74.

38Reasonable suspicion is not an “unduly onerous” standard: Mack, at p. 958; Ahmad SCC, at para. 45.

39The majority in R. v. Bank, 2021 ABCA 223, 406 C.C.C. (3d) 329, at para. 104, noted that:

[A] court cannot convict an accused of a criminal offence unless the Crown has proved the physical and mental elements of the crime beyond a reasonable doubt.… because of the severity of the consequences of a criminal conviction.… A lesser degree of certainty is needed to validate an arrest — which, while it temporarily deprives a person of his or her liberty, it results in no verdict of criminal wrongdoing.... And a still lesser degree of certainty is needed to justify a police officer interacting with a target and presenting him or her with an opportunity to commit a crime — or not.

40The primary purpose of the reasonable suspicion standard is to permit meaningful judicial review of police conduct: Ahmad SCC, at paras. 24, 45-46 & 83.

41In assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person “standing in the shoes of the police officer”: MacKenzie, at para. 63; Bank, at para. 113. An officer’s training or experience can make otherwise equivocal information probative of criminal activity: Ahmad SCC, at para. 47.

42However, hunches grounded in an officer’s experience are not sufficient, and deference is not owed to a police officer’s view of the circumstances based on their training or experience: MacKenzie, at para. 64; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47. Reasonable suspicion remains an objective standard that must withstand judicial scrutiny: MacKenzie, at para. 64; Chehil, at para. 26.

43A bare tip from an unknown source that someone is dealing drugs from a phone number is therefore insufficient to create reasonable suspicion: Ahmed SCC, at paras. 4, 53. However, a reasonable suspicion may develop if this information is supplemented by the discovery of other facts in the course of a post-tip investigation.

44Corroboration of the tip must suggest that it is “reliable in its assertion of illegality”, not just in its identification of a particular person: Ahmad SCC, at para. 50, citing Florida v. J. L., 529 U.S. 266 (2000), at p. 272. The target’s responsiveness to details in the tip, and to slang used in drug trafficking, along with other factors, may reinforce the reliability of the tip: Ahmad SCC, at para. 55.

C. The difference between exploratory questions and questions that provide the accused with an opportunity to commit an offence

45Police can make exploratory requests of the target without providing an opportunity to traffic, “including asking whether they sell drugs”: Ahmad SCC, at para. 66.

46In R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, at para. 16, aff’d 2010 SCC 50, [2010] 3 S.C.R. 62, Laskin J.A. for this court also held that the officer’s question to the target, “Can you hook me up?” was simply an exploratory question. And in R. v. Ralph, 2014 ONCA 3, 313 O.A.C. 384, at para. 32, leave to appeal refused, [2014] S.C.C.A. No. 262, Rosenberg J.A. for this court held that the words “I need product” was a “legitimate investigative step.” In Ralph, the appellants’ response together with the tip was sufficient to provide the officer with reasonable suspicion. Rosenberg J.A. held, at para. 2, that “[t]he exact words of the telephone conversation are important for the entrapment issue.”

47The majority in Ahmad SCC, at paras. 64-66, held that,

[A]n opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering “yes.”

An opportunity has been provided only when the terms of the deal have narrowed to the point that the request is for a specific type of drug and, therefore, the target can commit an offence by simply agreeing to provide what the officer has requested. In some cases, a request to purchase a specific quantity of drugs will suffice.... [C]ourts have consistently recognized that a request to purchase a specific type of drug during the conversation will amount to an opportunity to commit a crime. [Emphasis added.]

48In determining when an opportunity is provided, the majority in Ahmad SCC adopted the characterization of the trial judge, Trotter J. (as he then was), of the difference between exploratory conversation and creating an opportunity to traffic, in R. v. Williams, 2014 ONSC 2370, 141 O.R. (3d) 241, rev’d in part on other grounds, 2020 SCC 11. Trotter J. held, at para. 27, that:

The distinction between statements such as “I need product”/“Can you hook me up?”/ “Are you around?” /“Where are you?”, on the one hand, and “I need 80” /“I need 40” /“I need 6 greens”/“I need half a B”, on the other, might appear quite subtle. However, the latter statements, involving requests to purchase a specific quantity of drugs, are more definite and less exploratory. With the former, the possibility of a deal still needs to be explored and developed; with the latter, all the accused needs to say is say “yes.” [Emphasis added.]

49In sum, the feature that distinguishes exploratory statements from those that create an opportunity to commit an offence seems to be the making of an offer to purchase, such that all the target must do is accept the terms. A court must examine all the circumstances, including the language used in the communication with the target, in determining whether police formed a reasonable suspicion before providing an opportunity: Ahmad SCC, at para. 61.

50The words used, the meaning of the words used, and the context of the words in the conversation up to the point the question or statement at issue is made, are all factors to be considered in determining whether there was an offer to purchase: Ahmad SCC, at paras. 61-66. The police officer’s language to the target must be an offer that, if accepted, would constitute an offence.

51Entrapment is not made out if the opportunity to commit an offence is made after police have a reasonable suspicion that the target is engaged in specific criminal activity or that specific criminal activity is taking place at a specific location: Ahmad SCC, at para. 19.

Analysis and Conclusion

The Issue

52The appellant claims Detective Constable Green gave him the opportunity to traffic cocaine when he asked, “U good for powder?” and that, at this point, Detective Constable Green did not have reasonable suspicion that he was trafficking cocaine. As such, he claims he was entrapped.

53The respondent submits that the appellant was not given the opportunity to traffic cocaine until Detective Constable Green asked him, “How much for a b?”. By this time, Detective Constable Green had formed a reasonable suspicion before he provided the opportunity to traffic cocaine such that the appellant was not entrapped.

54The key issue is whether Detective Constable Green provided the opportunity to traffic cocaine before he had reasonable suspicion that the appellant was trafficking cocaine.

55In deciding whether a question is merely exploratory or constitutes an opportunity to commit an offence, one must look at the words used, the meaning of the words, and the context of the conversation up to the point the question or statement at issue is made.

56Whether there was entrapment in this case depends on the meaning of the words “U good for powder?” and whether they constitute an opportunity to traffic.

57If the question “U good for powder?” is merely an exploratory question, there was no entrapment, as the appellant’s response to the question was sufficient to ground a reasonable suspicion. However, if the words constitute an opportunity to traffic cocaine, as the appellant suggests, the appellant was entrapped, as Detective Constable Green did not have sufficient information before this question was asked to ground a reasonable suspicion.

Detective Constable Green’s Exploration of the Tip

58Detective Constable Green did not have a reasonable suspicion about the target prior to making the call as the tip was from an anonymous source. The further information he obtained about the target did not corroborate the tip, as there was no confirmation that the target lived in the area where the deals were alleged to take place, or that he had prior criminal convictions: see Ahmad SCC, at para. 50. He therefore needed to conduct further exploration to corroborate the tip he had received that the target was selling marijuana and cocaine near Durham College using the cellphone number provided.

59Detective Constable Green texted the number to pursue his inquiry into the tip. He needed to obtain further information about whether the target was engaged in trafficking or that the phone number was used by someone engaged in trafficking.

60When Detective Constable Green asked the target if he was TJ, the target did not deny that he was TJ nor did he redirect his text. Instead, the target engaged in conversation and confirmed that he was still around Durham College, thereby confirming some details of the tip. However, this was not sufficient to form a reasonable suspicion that the target was selling cocaine, because it did not strengthen the reliability of the tip “in its assertion of illegality”: Ahmad SCC, at paras. 50, 80, citing J. L., at p. 272.

The Significance of the Question “U good for powder?” and the Development of a Reasonable Suspicion

61Detective Constable Green then asked, “U good for powder?”

62Detective Constable Green testified that powder means cocaine.

63This was not an opportunity to traffic cocaine. There was (i) no offer on the part of Officer Green to buy cocaine, and (ii) no terms of an offer discussed. As such, the terms of the deal had not been narrowed to the point where the appellant could commit an offence by responding affirmatively to what Detective Constable Green requested. At most, he was asking whether the appellant had cocaine to sell. As this court found in Imoro, at para. 16, the question amounted to whether the appellant was a drug dealer. As such, this question did not provide the appellant the opportunity to traffic cocaine.

64Once the appellant answered, “How much were you looking for”, Detective Constable Green had sufficient information to generate a reasonable suspicion that the appellant trafficked cocaine. He had (i) received the tip that a person who went by the name TJ sold cocaine and marijuana near Durham College and used an 8098 telephone number, (ii) some information in the tip had been verified including the appellant’s location near Durham College, (iii) the appellant did not deny that he was TJ, suggest the caller had the wrong number or redirect the call and instead, continued to converse with Detective Constable Green, and (iv) the appellant responded positively to Detective Constable Green’s use of language particular to the drug subculture: “U good for powder?” by asking “How much were you looking for”.

65Having connected the tip to the person on the phone, the aspect of the tip that asserted illegality was corroborated by the appellant’s understanding of drug trafficking slang and willingness to engage in it: see Ahmad SCC, at para. 75. Taken together, these factors grounded a reasonable possibility that the appellant was involved in drug trafficking: see Ahmad SCC, at para. 76.

66Drawing the distinction at this juncture is consistent with the need to balance protecting privacy interests and personal freedom from state intrusion and the state’s legitimate interest in investigating and prosecuting crime: see Mack, at pp. 941-42; Ahmad SCC, at para. 22.

The Significance of the Question “How much for a b?”

67Detective Constable Green then asked the target the further question, “How much for a b?” The appellant replied, “230”.

68The question “How much for a b?” provided the appellant with the opportunity to commit the offence of trafficking cocaine. As noted above, it is the specific offer to purchase the drugs that amounts to an opportunity to commit the crime: Ahmad SCC, at para. 59; Imoro, at paras. 3, 16.

69By the time Detective Constable Green asked, “How much for a b?”, he had a reasonable suspicion that the appellant was involved in trafficking cocaine and it was therefore permissible to provide the appellant the opportunity to commit the offence.

Whether the Facts in this Case are Indistinguishable from Those in Mr. Williams’ Case

70I do not accept the appellant’s submission that this case is indistinguishable from the case of Mr. Williams, one of the appellants in Ahmad SCC. In both cases, the police were working from a tip that the individual was a cocaine dealer and contacted the number they were given in the tip. However, unlike this case, in the case of Mr. Williams, immediately after introducing himself, the police officer requested a specific quantity of cocaine from Mr. Williams. This was an offer to purchase, which offer was accepted. The exchange was as follows:

Male : Hello.

Canepa : Jay?

Male : Yeah.

Canepa : You around?

Male : Who is this?

Canepa : It’s Vinny.

Male : Vinny who?

Canepa : Vinny. Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80.

Male : Okay. You have to come to me.

71In the case of Mr. Williams, as soon as the target confirmed who he was, the officer presented an opportunity to traffic drugs by asking to purchase a specific quantity, “80”, slang for a dollar amount of cocaine. Once Mr. Williams responded “Okay” the offence of trafficking by offer was complete: Ahmad SCC, at para. 79.

72However, there was nothing in Mr. Williams’ responses before the officer provided the opportunity to traffic that suggested the phone number was being used to traffic drugs. Mr. Williams responded positively to the name “Jay” provided in the tip, but this corroboration of one aspect of the tip was not enough to ground a reasonable suspicion as it does not strengthen the tip “in its assertion of illegality”: Ahmad SCC, at para. 80, citing J. L., at p. 272.

73Therefore, in Mr. Williams’ circumstances, the police provided the opportunity to traffic cocaine without yet having reasonable suspicion that Mr. Williams was selling cocaine. In this case, the question “How much for a b?” constituted an opportunity to traffic. Unlike the situation involving Mr. Williams, Detective Constable Green provided the opportunity to traffic after he had formed reasonable suspicion, based on the information he had and the appellant’s response to the question “U good for powder?”

74As such, this case is distinguishable from the circumstances in Mr. Williams’ case, discussed in Ahmad SCC.

Conclusion

75For the above reasons, while the trial judge did not have the benefit of the Supreme Court’s decision in Ahmad SCC, I see no error in her analysis or her conclusion that the appellant was not entrapped.

76I would therefore dismiss the appeal.