Court of Appeal for Ontario
Date: 20210806 Docket: C66568
Tulloch, Roberts and Trotter JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Lynston Henry-Osbourne Appellant
Counsel: Jeffery Couse, for the appellant David Quayat, for the respondent
Heard: May 14, 2021 by video conference
On appeal from the convictions entered by Justice Wailan Low the Superior Court of Justice on September 26, 2017, and from the ruling on entrapment dated November 7, 2017 with reasons reported at 2017 ONSC 6714.
Roberts J.A.:
Overview
[1] The appellant appeals the dismissal of his application for a stay of his convictions for trafficking heroin to an undercover police officer on three different occasions in the course of “dial-a-dope” operations, and for the possession of the proceeds of crime from trafficking. The appellant maintains that the trial judge erred in failing to find that he was entrapped by the police into committing the offences that formed the basis for his convictions.
[2] At issue in this appeal is whether the application of the Supreme Court’s analytical framework on the law of entrapment in R. v. Ahmad, 2020 SCC 11, 445 D.L.R. (4th) 1, to the circumstances of this case would have led to a stay of the convictions. For the reasons that follow, I say it would not and would dismiss the appeal.
(i) Guilty pleas and convictions
[3] On September 26, 2017, following a re-election to a trial before a judge alone and pursuant to an agreed statement of fact, the appellant pled guilty to four counts of an eight-count indictment. The four remaining counts were withdrawn at the Crown’s request.
[4] The basic factual underpinnings for the convictions were founded on the following agreed statement of fact:
On May 9, 2015, the [Toronto Drug Squad] entered into a drug investigation. A now retired officer Tony Canepa negotiated the purchase of a gram of heroin with an individual referred to as “Prince” for $200. Tony Canepa attended the area as directed and met “Prince”, who was later identified as Mr. Henry-Osborne. Tony Canepa gave Mr. Henry-Osbourne $200 in marked police buy money and in return received a quantity of heroin, later determined to weigh 1.08 grams.
On May 11, 2015 Tony Canepa called “Prince” again and entered into another drug related conversation. “Prince” agreed to sell a gram of heroin for $200 directing the officer to meet him in the area of Jane Street and Sheppard Avenue, Toronto. Tony Canepa attended the area as directed and met Mr. Henry-Osbourne. Tony Canepa gave Mr. Henry-Osborne $200 in marked police buy money and in return received a quantity of heroin, later determined to weigh 1.06 grams.
On July 11, 2015 Tony Canepa called “Prince” again and entered into another drug related conversation with “Prince”. “Prince” agreed to sell 6.5 grams of heroin for $1000 directing the officer to meet him in the area of Jane Street and Sheppard Avenue, Toronto. Tony Canepa attended the area as directed and met Mr. Henry-Osbourne. Tony Canepa gave Mr. Henry-Osborne $1000 in marked police buy money and in return received a quantity of heroin, later determined to weigh 6.5 grams. Mr. Henry-Osbourne was subsequently arrested. The $1000 of police buy money and a telephone was found on him during a search incident to arrest. The police confirmed the phone in his possession was assigned to phone number 416.302.4105 that the police had used to contact “Prince” previously.
[5] The trial judge found the appellant guilty on three counts of trafficking heroin and one count of possession of the proceeds of crime from trafficking.
(ii) Application for a stay of the convictions
[6] On September 26 and 27, 2017 the appellant brought an application before the trial judge to stay his convictions on the ground that he was entrapped into the criminal conduct underlying the guilty pleas.
[7] The evidence on the application consisted of the agreed statement of fact and the viva voce evidence of the undercover officer, Tony Canepa, who had retired by the time of the application. Officer Canepa testified about the information that he had received prior to calling the appellant, and the conversations and text exchanges that he had with the appellant and others in the course of the heroin purchases. I examine those conversations and texts in further detail later in these reasons.
[8] The trial judge applied the following test for entrapment under R. v. Mack, [1988] 2 S.C.R. 903, at p. 959, which she identified as the governing jurisprudence at that time:
There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides … or, (b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
[9] The trial judge concluded that there was no evidence of the undercover officer offering an inducement and that the conduct of the investigation did not constitute random virtue testing because it was “focused on one individual possessing several articulated physical characteristics and three specific patterns of conduct: the use of the style ‘Prince’, the use of a specific telephone number, and dealing in heroin”. She also found that there was no evidence that the undercover police officer was not acting bona fide in investigating the tip that led to the telephone calls.
[10] The trial judge made no specific finding as to whether Officer Canepa had a reasonable suspicion to believe the appellant was involved in drug trafficking before presenting him with an opportunity to commit a crime because she determined that the reasonable suspicion standard articulated under the first branch of the Mack test was inapplicable in a dial-a-dope context involving the bona fide investigation of a tip. The trial judge reasoned as follows:
In the context of dial-a-dope operations, many undercover investigations will start with a tip only, and for that reason, it will not be possible to say that the police start out with a “reasonable suspicion”. The police nevertheless have a duty to investigate, and in the dial-a-dope context, investigation requires a call to the target number to determine whether the tip can be confirmed.
[11] The trial judge’s reasoning on this point was tied to her holding that an “opportunity to offend” existed as soon as police placed a call using drug-coded language to the targeted phone number. She interpreted Mack to mean that:
an opportunity to offend [i.e. a drug-coded phone call] may properly be extended to the target of a bona fide investigation if it is in the course of and for the purposes of the investigation whether the information in the possession of the police at the time of the offer rises to the level of a reasonable suspicion or is only at a level of a “mere” suspicion.
[12] On that basis, the trial judge found that the appellant had not been entrapped by the police and dismissed the appellant’s stay application. On February 9, 2018, the appellant received a global sentence of 3 years, 2 months and 27 days, which he does not seek to appeal separately from the convictions.
Issues and the Parties’ Positions
[13] The appellant’s principal submission is that the trial judge erred in applying the wrong test for entrapment. Specifically, the appellant submits that the trial judge erred in law by applying a bona fide investigation test rather than the reasonable suspicion test required under the Supreme Court’s most recent articulation of the test for entrapment in Ahmad. The appellant maintains that, like in R. v. Williams, the companion case to Ahmad, the brief conversations and texts between the appellant and the undercover officer did not afford a sufficient basis to ground a reasonable suspicion.
[14] The Crown submits that while the trial judge did not have the benefit of the Supreme Court’s guidance in Ahmad, the trial judge’s jurisprudential instinct and factual findings were nevertheless correct. According to the Crown, the circumstances of the present case are almost identical to those in Ahmad. Applying Ahmad to the circumstances of the present case, the Crown argues, still leads to the trial judge’s conclusion that there was no entrapment.
Analysis
(a) Ahmad analytical framework
[15] As this court very recently acknowledged in R. v. Ramelson, 2021 ONCA 328, appeal as of right filed [2021] S.C.C.A No. 137, at para. 34, Ahmad did not fundamentally change the law of entrapment as it stood under Mack and R. v. Barnes, [1991] 1 S.C.R. 449. See also: R. v. Ghotra, 2020 ONCA 373, at paras. 16 to 19. However, the majority in Ahmad provided important clarifications on how to apply the law of entrapment in the context of “dial-a-dope” operations, particularly with respect to the assessment of reasonable suspicion.
[16] In the context of a dial-a-dope investigation, police may provide an opportunity to commit a crime only upon forming a reasonable suspicion that the person answering the phone is engaged in drug trafficking: Ahmad, at para. 44. The majority in Ahmad was careful to emphasize at para. 20 that a bona fide investigation is not a separate and freestanding way to entrap an individual. Rather, an investigation is bona fide where the police have reached a threshold of reasonable suspicion and they have a genuine purpose of investigating crime. Ultimately, the entrapment analysis focuses on whether the police had formed a reasonable suspicion when they created an opportunity to commit a crime:
The reasons in Mack make clear that a bona fide inquiry into a location is premised upon and tethered to reasonable suspicion. An investigation is “bona fide” where the police have a reasonable suspicion over a location or area, as well as a genuine purpose of investigating and repressing crime. A bona fide investigation is not a separate and freestanding way for police to entrap an individual, but a means of expressing the threshold of reasonable suspicion in a location. The offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or a combination of both. [Emphasis added.]
[17] The Supreme Court also made clear in Ahmad that the police can develop reasonable suspicion either before placing a call to a suspected drug line or in the course of a conversation with the target: Ahmad, at para. 54. If the police do not have reasonable suspicion before a call is made, it must be developed during the call but before an opportunity to commit a crime is presented to the target: Ahmad, at para. 69. The Court explained at para. 66 what is meant by an opportunity to commit a crime:
[P]olice can make exploratory requests of the target, including asking whether they sell drugs, without providing an opportunity to traffic in illegal drugs. 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. [Citations omitted.]
(b) Trial judge’s approach
[18] Viewed through the lens of Ahmad, the trial judge’s approach was flawed in that she did not make a specific finding as to whether the police had formed a reasonable suspicion at the moment the offer to buy drugs was made. As already noted, she made no distinction between “reasonable suspicion” and “mere suspicion” so long as the investigation was bona fide.
[19] The trial judge relied on investigative bona fides as a separate means by which to justify the undercover officer’s offer to purchase drugs. However, Ahmad makes clear that investigative bona fides will not supplant an absence of a reasonable suspicion at the moment police make a concrete offer to buy drugs.
[20] The trial judge should have considered whether, in the context of a bona fide investigation, the officer had a reasonable suspicion that the appellant was engaged in drug trafficking before he placed his order to purchase drugs.
(c) Ahmad analytical framework applied
[21] The primary issue in this appeal is therefore whether a proper application of the Ahmad analytical framework would have led to a different result. In my view, it would not. For the reasons that follow, I conclude that the trial judge’s factual findings were unaffected by her analytical approach and that her ultimate conclusion that there was no entrapment was correct.
[22] The appellant submits that the outcome would have been different under Ahmad because the police did not have a reasonable suspicion that the appellant was trafficking heroin for the following three reasons:
a. The appellant was targeted based on a bald, uncorroborated tip of unknown reliability, credibility and recency. b. The undercover officer did not adequately corroborate the tip during his telephone call with the appellant prior to asking him to traffic heroin. c. Despite the appellant declining to commit the offence or partake in drug subculture language, the undercover officer continued to pursue the investigation.
[23] I am not persuaded by these submissions.
[24] Because it is a contextualized, individualized, and fact-driven inquiry, the determination of reasonable suspicion requires a careful examination of the evidence and an assessment of the entire “constellation of objectively discernable facts”: Ahmad, at paras. 46 and 48. As a result, simply comparing the circumstances of this case to those in Ahmad, where no entrapment was found, or in Williams, where it was, is not dispositive of the issue. The circumstances of the present case differ because they comprehend not one conversation but a series of telephone conversations and text exchanges that culminated in the offer and purchase of heroin. It is therefore necessary to examine all the relevant circumstances to determine if the appellant was entrapped.
[25] While the undercover officer may not have had a reasonable suspicion before first calling the appellant, he formed a reasonable suspicion during the initial telephone call, which was strengthened by the subsequent text and telephone exchanges, and prior to offering the appellant the opportunity to traffic heroin by requesting a specific quantity of a particular drug.
[26] Prior to making the initial call, Officer Canepa had been advised by Detective Brons that an individual named “Prince” was trafficking heroin using a specific telephone number. Detective Brons gave a physical description of “Prince”. He instructed Officer Canepa to call “Prince” at a specific telephone number, 416-302-4105, and to purchase heroin with police buy money, using the drop name “Paul”.
[27] Officer Canepa telephoned the number he had been given and the following conversation ensued:
Male: Hello. Officer Canepa: Prince? Male: Yeah. Officer Canepa: Can I come see you? Male: Where did you get my number from? Officer Canepa: Paul, White guy from St. Claire [sic] and Dufferin. Male: I don’t know who you are. Officer Canepa: It’s Sal. I got your number from Paul. Do you know Paul? Male: Yeah. What are you looking for? Officer Canepa: A GR of H. Male: I don’t know what ….
[28] The line disconnected at that point and Officer Canepa tried twice to reach the appellant without success. Officer Canepa then received a text message from the same telephone number:
416-302-4105: Who this? Officer Canepa: Sal. Can I come check you? 416-302-4105: I don’t know what you’re talking about. Officer Canepa: No problem then sorry.
[29] Officer Canepa testified that he thought that the investigation “wasn’t going anywhere” or that “the deal was dead at that point”. However, a few minutes later, he received a telephone call from an unknown number and had the following telephone conversation with a different male individual:
Officer Canepa: Hello? Male: Is this Sal? Officer Canepa: Who is this? Male: Paul – Do I know you? Officer Canepa: I don’t know. Male: Prince says I gave you this number. Officer Canepa: I told Prince I got a number from a guy by the name of Paul from St. Claire and Dufferin. Male: What does Paul look like? Officer Canepa: White, chubby. Male: I don’t know who you are. Officer Canepa: I’m sure you’re not the only Paul around. Male: Okay.
[30] A few minutes later, Officer Canepa received a text from 416-302-4105, the number he had initially called to reach “Prince”, and had the following exchange:
416-302-4105: How you got this number? 416-302-4105: ? Officer Canepa: Paul at St. Claire and Dufferin. 416-302-4105: Where you from? Officer Canepa: St. Clair and Dufferin
[31] About four hours later, Officer Canepa received a call from the same number, 416-302-4105, and had the following conversation:
Officer Canepa: Hello. Male: Hey, what’s going on? Officer Canepa: Not much. Male: Listen – I have to check you. Are you a friend of Nick? Officer Canepa: Yeah. Male: Okay. What do you need? Officer Canepa: One. Male: A Full one. Officer Canepa: How much? Male: Okay, let me call you back in two minutes and tell you where to meet me. Officer Canepa: Okay.
[32] Following this last conversation, Officer Canepa purchased heroin from the appellant on the three occasions that formed the basis for the guilty pleas, and on two other occasions from individuals whom “Prince” had sent to complete the transactions for him.
[33] In my view, reasonable suspicion existed before the undercover police officer requested a specific quantity or type of drug from the appellant during their initial call. In any event, having regard to the entirety of the communications leading up to Officer Canepa’s first heroin purchase from the appellant, it is clear that reasonable suspicion to believe that the appellant was engaged in drug trafficking existed before the appellant again offered to sell him drugs and Officer Canepa placed his order for “One”.
[34] Before asking the appellant for “A GR of H” in their initial conversation, Officer Canepa had already obtained confirmation from the appellant that he was “Prince”, that he was connected to the number that was given for him, and that he knew “Paul”. Officer Canepa also made exploratory requests, engaging in drug-coded language, asking the appellant if he could come see him, which Officer Canepa testified meant that he was asking if he could purchase drugs from him. Understanding Officer Canepa’s coded request, the appellant then exhibited the kind of caution that, as Officer Canepa also testified, is typical of drug dealers who are concerned that they may be communicating with an undercover police officer. Once he was satisfied that Officer Canepa had obtained his telephone number from a trusted source, the drop name “Paul”, the appellant himself used drug-coded language, asking the undercover officer what he was looking for, namely, what drugs he wanted to purchase. It was in response to the appellant’s invitation that Officer Canepa placed his order for “A GR of H”.
[35] After Officer Canepa dropped the inquiry following the exchange with the male who said he did not know who he was, the appellant renewed communications with Officer Canepa for the express purpose of having to “check” him, again exhibiting the typical wariness of drug dealers against dealing with undercover police. Having satisfied himself that the connection was legitimate, the appellant then reiterated his offer to sell drugs to Officer Canepa, asking “What do you need?”, drug-coded language asking what drugs he wished to purchase. It was in response to this repeated offer to purchase that Officer Canepa asked for “One”, again, drug-coded language which the appellant understood because he indicated he would call Officer Canepa back to tell him where to meet him.
[36] As the trial judge correctly found, these circumstances did not constitute prohibited random virtue-testing, which the law of entrapment seeks to protect against because it “violates the principle that it is wrong for the police to manufacture crime” and prey “on the weakness of human nature to entice individuals into offending”: Ahmad, at paras. 27-28. In the circumstances of this case, it cannot be said that the appellant was tempted into committing a crime when he otherwise would not have: Ahmad, at para. 28. Rather, after several conversations and careful probes to satisfy himself of the caller’s legitimacy as a drug purchaser, the appellant made an offer to sell drugs to Officer Canepa, which was accepted. Except for the initial call to “Prince”, all other communications were initiated by “Prince”, or by the other male individual who contacted Officer Canepa. As Officer Canepa formed a reasonable suspicion about the appellant’s trafficking activities before he created opportunities for the appellant to break the law, his actions fell well within the boundaries set by the Supreme Court in Ahmad.
[37] The onus rests on the appellant to establish entrapment on a balance of probabilities: Ghotra, at para. 18, citing Ahmad, at para. 31. In my view, he has failed to meet this onus. I see no basis for a finding of entrapment in this case and would uphold the trial judge’s ultimate conclusion that there was none.
Disposition
[38] For these reasons, I would dismiss the appeal.
Released: August 6, 2021 “M.T.” “L.B. Roberts J.A.” “I agree M. Tulloch J.A.” “I agree Gary Trotter J.A.”
