Court of Appeal for Ontario

Date: 2017-01-11

Docket: C59878

Judges: Simmons, van Rensburg and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Ramkishore Jageshur Appellant

Counsel

For the Appellant: Richard J. Posner and Lance C. Beechener

For the Respondent: Rick Visca and Brendan L. Gluckman

Hearing and Appeal

Heard: December 6, 2016

On appeal from: The conviction entered on March 7, 2014 and the sentence imposed on May 21, 2014 by Justice Robert A. Clark of the Superior Court of Justice.

Reasons for Decision

Simmons J.A.:

A. Introduction

[1] On August 21, 1997, the appellant purchased 18 kilograms of cocaine from an undercover RCMP officer for $504,000 in what is known as a "reverse sting". He was arrested immediately and charged with possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA").

[2] The appellant was originally tried for this offence in 2000. The trial judge at the first trial acquitted the appellant, holding that the reverse sting was illegal and therefore constituted an abuse of process.

[3] Following his acquittal, the appellant pleaded guilty to trafficking one kilogram of cocaine in November 1996 and carrying a weapon for a purpose dangerous to the public peace. The latter charge arose from the fact that, when police arrested the appellant on August 21, 1997, they found a loaded Glock handgun in his car. The appellant was sentenced to one day imprisonment for these offences in addition to time served (21 months' imprisonment credited at the rate of two for one, for a total of 42 months).

[4] In October 2002, this court set aside the appellant's acquittal and ordered a new trial: R. v. Jageshur (2002), 169 C.C.C. (3d) 225. Doherty J.A., writing for this court, concluded that although the initial offer to sell cocaine to the appellant had not been approved in accordance with RCMP policy, both the offer and subsequent sale of cocaine were nonetheless exempt from the prohibition on trafficking in the CDSA, and were not therefore illegal.

[5] Prior to the Crown's appeal being heard, the appellant breached his bail on a pending fraud charge, left the country and began living in Florida under an assumed name. While in Florida, he pleaded guilty to manslaughter. After serving his sentence he was deported to Canada where he was re-arrested for this offence on December 26, 2012.

[6] The appellant's second trial on the possession for the purpose of trafficking charge began in February 2014. Prior to arraignment, the appellant brought applications to stay the proceedings under ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms. Concerning the s. 7 application, he argued that the lead investigator, RCMP Constable Kevin Burk, deliberately misled his superiors to gain approval for the reverse sting and also delayed disclosure of important documents for several years to undermine the defence. The appellant claimed that these actions constituted an abuse of process.

[7] The trial judge dismissed the appellant's applications. In relation to the s. 7 application, he found that Burk did not mislead his superiors; that he did not deliberately withhold disclosure; and that, while Burk may have instructed undercover officers to make an offer to sell drugs to the appellant prior to receiving authorization for the reverse sting, Burk acted under the reasonable belief that he had permission to do so.

[8] The trial judge convicted the appellant of possession of cocaine for the purpose of trafficking based on an agreed statement of facts and sentenced him to 13 years' imprisonment less 26 months' credit for pre-sentence custody, for a total of 10 years 10 months' imprisonment.

[9] Applying s. 743.6(1) of the Criminal Code, the trial judge also ordered that the appellant's parole eligibility be delayed until the appellant has served one-half of his sentence.

[10] The appellant appeals from his conviction and seeks leave to appeal sentence. For the reasons that follow, I would dismiss the conviction appeal, grant leave to appeal sentence, but dismiss the sentence appeal.

B. The Conviction Appeal

[11] Prior to the appeal hearing the appellant abandoned his ground of appeal asserting that the trial judge erred in dismissing his s. 11(b) application. Accordingly, the sole issue raised on the conviction appeal is whether the trial judge erred in rejecting the appellant's application for a stay of proceedings based on abuse of process. In this regard, the appellant asserts that the trial judge materially misapprehended the evidence in five discrete ways. I will address each of the alleged misapprehensions in turn. Before doing so, I will briefly review the legislative and factual background of this matter.

(1) Background

(a) Legislative and internal policy requirements relating to a reverse sting

[12] Regulations enacted under the CDSA on May 14, 1997 made reverse sting operations legal provided the selling police officer is acting in accordance with his duties and has been issued a certificate of exemption.

[13] Under the CDSA regulations, it is legal for a police officer acting in the course of his duties to offer to sell drugs without a certificate of exemption. However, an RCMP policy statement issued by Rene Charbonneau, Acting Director of the RCMP's Federal Services Directorate (the "Charbonneau telex") circulated soon after the regulations were made stipulated that "reverse undercover operations will not become common practice'' and that they would only be approved by the Director of Federal Services "in exceptional circumstances" (emphasis in the original).

[14] To obtain approval for a reverse sting, RCMP internal policy requires that an officer submit a detailed operational plan to his or her immediate supervisor who must, in turn, seek approval from the unit commander. If approved, the plan is submitted to divisional headquarters for review (in Ontario, divisional headquarters is in London ("London")). If approved on review, the plan goes to Headquarters in Ottawa ("Ottawa") for further review.

[15] Accordingly, as summarized by the trial judge, before an RCMP officer may proceed with a reverse sting, he must have the approval of his immediate supervisor, his unit commander, London and Ottawa.

(b) Events leading up to the reverse sting as found by the trial judge

[16] At all relevant times, Burk was a member of the RCMP's Toronto Integrated Proceeds of Crime Unit ("IPOC"), which was responsible for investigating and seizing proceeds of crime. In April 1996, members of the RCMP Milton drug squad ("Milton Drugs") advised IPOC that the appellant was importing cocaine into Canada from South America. The appellant thus became a target of a joint investigation by both units.

[17] The appellant sold one kilogram of cocaine to a police agent in November 1996 for $34,000. He was not arrested at that time. Burk believed that the appellant was a large-scale cocaine dealer and that he may have had access to approximately $800,000 from a recent armoured car robbery.

[18] Between December 1996 and March 1997, the appellant offered to sell 10 kilograms of cocaine to an undercover officer and also expressed an interest in buying various quantities of cocaine (10, 25 and 50 kilograms respectively) from undercover officers. None of these offers were acted upon.

[19] In April 1997, Burk and his immediate supervisor decided this might be an appropriate case for a reverse sting. On May 16, 1997, Burk requested the RCMP Milton Airport Detachment to hold 100 kilograms of cocaine seized at Pearson Airport for that purpose.

[20] On May 26, 1997, with the approval of his supervisor and unit commander, Burk sent an operational plan for a reverse sting to London divisional headquarters. In the operational plan, Burk stated, "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".

[21] On June 3, 1997, Burk obtained advice from a federal Department of Justice lawyer that it would not be illegal for an officer to enter into negotiations to sell cocaine without an exemption certificate. He also asked an Ottawa RCMP officer about the same issue. The officer said he would have to get back to him.

[22] On June 5, 1997, Burk received a fax from London divisional headquarters attaching a copy of the Charbonneau telex and advising that his plan could not be "supported at this time as [it] [did] not fall within the exceptional circumstances set out in [the Charbonneau telex]."

[23] Later the same day, Burk contacted the London reviewer, Corporal Brian Higgins, and learned that his plan had not been approved for three main reasons:

• Burk had not attempted to obtain a wiretap authorization;
• Milton Drugs recommended a controlled delivery; and
• there was no convincing evidence that the appellant actually was a multi-kilo dealer.

Higgins also indicated that the investigation should proceed using conventional investigative methods.

[24] According to Burk, he had various subsequent conversations with Higgins that led him to believe Higgins would reconsider his plan in certain circumstances – which included the appellant providing a down payment for a large cocaine purchase. Burk testified that he therefore understood that he had tacit permission to have his undercover officers make an offer to the appellant.

[25] On June 18, 1997, officers from Milton Drugs submitted a request to Ottawa to have 30 kilograms of cocaine held for the proposed reverse sting. Chief Superintendent Al Hutchinson, then Acting Director of Federal Services, approved the request the next day. Burk testified he did not see this request and did not learn until later what amount, if any, had been requested.

[26] Between June 5 and July 15, 1997, Burk formulated a plan whereby an undercover officer would offer the appellant an opportunity to buy cocaine, but let the appellant choose the amount. He mentioned the proposed offer in an updated plan submitted to London on July 17, 1997. On July 18, 1997, Burk instructed RCMP officer Fournier to make an offer to sell cocaine to the appellant.

[27] Fournier met the appellant later in the day on July 18, 1997 and offered to sell him cocaine. According to Fournier, he told the appellant that the price would depend on the amount the appellant purchased ($34,000 to $35,000 per kilogram for a smaller quantity, $31,000 to $32,000 for a larger quantity) and that if he ordered more than 30 kilograms, he would have to pay half the purchase price "up-front". The appellant was interested but wanted to think about it. According to Fournier, during the course of the conversation, the appellant indicated that he was sitting on 25 kilograms of cocaine he had imported from Miami.

[28] The appellant telephoned Fournier on July 21, 1997. The men agreed on a price of $28,000 per kilogram. Fournier testified that the appellant initially said he wanted to purchase "25 to 30, but could not pay everything up-front". Fournier asked for a specific number. The appellant said he wanted to buy 30 kilograms but could only pay for 18 up-front. He asked Fournier to hold the other 12 kilograms until the following week. Fournier agreed and asked for a $50,000 deposit. This was later adjusted to $80,000 because the appellant wanted a total of 30 kilograms.

[29] On July 22, 1997, Burk's unit commander faxed London and requested that "the previously submitted operational plan" dated May 26, 1997 be reviewed and submitted to Ottawa for approval of a reverse sting. In a report dated July 22, 1997, which accompanied this fax, Burk mentioned that the May 26, 1997 plan was declined. The July 22, 1997 request was approved and exemption certificates were issued on August 7, 1997.

[30] The appellant paid the deposit on August 8, 1997. On August 20, 1997, he met with one of the undercover officers and said to him, in relation to protecting the cocaine, "any cop pulling me over, he's getting fucking blasted before I open my trunk."

[31] The appellant paid the balance of the funds, obtained the 18 kilograms of cocaine and was arrested on August 21, 1997. Police found a loaded Glock handgun in his car.

(2) The appellant's abuse of process argument at the re-trial

[32] At the re-trial, the appellant sought a stay of proceedings based on abuse of process. He argued that Burk misled his superiors to gain approval for the reverse sting in the following ways:

• by telling his superiors that other, more conventional, methods of investigation had been tried and failed, or would be futile, when he knew that was not the case;
• by instructing Fournier to offer to sell drugs to the appellant when he knew he did not have permission to do so;
• by instructing Fournier to encourage the appellant to buy 30 kilograms of cocaine to make the appellant appear to be a major dealer; and
• by claiming that time was of the essence in pursuing the plan because of pending disclosure in a separate criminal proceeding in Newmarket, when he knew no such urgency existed.

[33] The appellant also argued that, to undermine the defence, Burk intentionally failed to disclose documents that would have demonstrated that the original plan had not been approved.

(3) The trial judge's reasons

[34] The trial judge rejected the appellant's arguments and dismissed the abuse of process application. He found that Burk did not mislead his superiors on the issue of other investigative methods; that while Burk may have instructed undercover officers to make an offer to sell drugs to the appellant prior to receiving authorization for the reverse sting, Burk acted under the reasonable belief that he had permission to do so; that the police did not suggest the amount of cocaine the appellant should purchase; that Burk did not mislead his superiors concerning the urgency of the project; and that he did not deliberately withhold disclosure.

(4) Discussion

[35] On appeal, the appellant asserts that, in reaching his conclusions, the trial judge materially misapprehended the evidence in five discrete ways.

[36] I will address each of the alleged misapprehensions in turn.

(i) Alleged misapprehension no. 1 – whether other options were exhausted or futile

[37] The trial judge found that Burk did not mislead his superiors in asserting in his May 26, 1997 operational plans and subsequent updates to it that all other options for pursuing the appellant had been exhausted or were likely futile.

[38] The appellant argues that in making this finding the trial judge ignored the fact that Burk had been instructed to pursue conventional methods of investigation after his first operational plan was refused. Further, the appellant asserts that the trial judge also ignored the evidence of the London officer who reviewed the July 22, 1997 operational plan, Sergeant Rick Roy, that had he known that as of July 18, 1997 the appellant had 25 kilograms of cocaine to sell, he would have recommended that the officers attempt to obtain that cocaine through a controlled delivery rather than engaging in a reverse sting. Finally, the appellant asserts that the trial judge ignored Burk's stated willingness to assist Milton Drugs in attempting a 10 kilogram purchase if the appellant did not want to purchase cocaine.

[39] I would not accept these submissions. In rejecting the appellant's argument, the trial judge relied on the fact that Burk was a member of IPOC, which was responsible for investigating and seizing proceeds of crime. The trial judge stated:

The other methods requirement was meant to ensure that, when investigating a crime within their mandate, the [undercover officers] would first explore all other reasonable investigative options before resorting to what internal RCMP policy dictated was an investigative techniques reserved for exceptional circumstances. [Emphasis in the original].

[40] The trial judge concluded that, for proceeds of crime investigators, this meant that they should exhaust all other reasonable means by which they might learn of and, in turn, seize any proceeds of crime they believed a suspect might possess. It did not mean that investigators were required to investigate the appellant for a crime just because the opportunity presented itself.

[41] For these conclusions, the trial judge relied on evidence from Chief Superintendent Hutchison, the senior officer who approved the reverse sting. As Hutchison was Roy's superior, I see no error in the trial judge doing so.

(ii) Alleged misapprehension no. 2 – whether Burk reasonably thought he had permission to make an offer – Roy "was firm" in his evidence that what Fournier had done was engage in preliminary negotiations

[42] Second, the appellant argues that to support his conclusion that Burk reasonably thought he had permission to make an offer the trial judge erroneously relied on a finding that Roy was firm in his testimony that what Fournier had done was engage in preliminary negotiations falling short of an offer.

[43] The trial judge's specific finding in this regard appears at para. 169 of his reasons and reads as follows:

Despite [defence counsel's] attempts to have Roy accept that Burk had overstepped what he understood from Higgins to be his limited scope in this behalf, Roy was firm that what Fournier had done was engage in preliminary negotiations falling short of an offer. Albeit Burk ultimately did authorize Fournier to offer to sell drugs to [the appellant], to my mind Roy's insistence that what Fournier had initially done did not even amount to an offer, just underscores how Burk might reasonably have thought that he had tacit permission to do what he did. [Emphasis added].

[44] The appellant argues that in so holding the trial judge ignored Roy's cross-examination.

[45] According to the appellant, the portion of Roy's testimony on which the trial judge relied to reach his conclusion that "Roy was firm" was premised on a misunderstanding of what Fournier had actually done. The appellant says that when the true sequence of events concerning the agreement between Fournier and the appellant was put to Roy in cross-examination – namely that on July 21, 1997 the appellant agreed to purchase 30 kilograms of cocaine (18 immediately and the balance within a short time after he had the rest of the money), and that the appellant would pay a $50,000 deposit - Roy not only agreed that he would have concluded that Burk had initiated a reverse sting without prior approval, he also indicated that his branch would likely not have approved the plan for a reverse sting.

[46] I would not accept this argument. As a starting point, the impugned finding is but one of several reasons articulated by the trial judge for accepting that Burk believed he had tacit approval to make an offer. In any event, however, in re-examination Roy confirmed that what the appellant says was the true sequence of events was contained in the July 22, 1997 operational plan that he approved. Roy also stated:

Again, I draw upon the analogy of a car dealer and a prospective purchaser, and they agree on a number of things, but until the purchaser comes in with a down payment or some tangible means to substantiate his purchase, then I didn't perceive that to be an offer agreement, and neither did the officer in charge of economic crime or the Criminal Operations Officer.

[47] In my view, the trial judge was entitled to come to the conclusion that he did based on the record before him.

(iii) Alleged misapprehension no. 3 – whether Burk reasonably thought he had permission to make an offer – the idea for the down payment

[48] While Burk testified that he thought, based on his discussions with Higgins, that he had implicit authority to have the undercover officers sell drugs to the appellant as long as the appellant made a down payment on a large purchase of drugs, Higgins' evidence was that he knew Ottawa had to authorize an offer and he would never have said anything to lead a subordinate to believe that he could make an offer without Ottawa's approval.

[49] The trial judge said that although he believed Higgins was endeavouring to be truthful, where Higgins' evidence differed from that of Burk, he placed little weight on Higgins' evidence because "he had almost no present memory of these events." And while the trial judge accepted that Higgins would not have intentionally led Burk to believe he could make an offer without approval, the trial judge found that Higgins said things, "albeit unwittingly, that caused Burk to honestly believe" he had permission to have the undercover officers offer to sell cocaine to the appellant.

[50] Among other things, in reaching his conclusion, the trial judge referred to Roy's evidence that the idea for the down payment may have come from Higgins. At para. 168 of his reasons, the trial judge said:

…I find support for Burk's belief in the evidence of Rick Roy. Roy made plain that the notion of permission possibly being forthcoming if [the appellant] made a down payment was not his idea; rather, in Roy's words "it was initiated by the operator or perhaps Corporal Higgins." [Emphasis added by the trial judge].

[51] The appellant argues that Roy's speculation was not a reasonable basis to refute Higgins' testimony.

[52] I would not accept this submission. Immediately following the impugned statement, the trial judge acknowledged that Roy did not know that the idea for the down payment came from Higgins. However, what was significant in his view, was the fact the Roy considered it possible that the idea could have emanated, whether directly or indirectly, from Higgins. In the context of Roy's position as Higgins' superior, this fact alone was significant when considered in the light of Higgins' perception of what he may have said. In this regard, the trial judge said:

While I appreciate that Roy's evidence in this behalf is somewhat speculative, it is no more so, in my view, than Higgins' assertion (made almost 17 years after the fact on the basis of virtually no present memory of these events) that he never said anything from which Burk might reasonably have understood he had tacit permission to open negotiations. Against the backdrop of the ongoing discussions after June 4, the fact Roy seemed to think the idea might have come from Higgins tends to refute Higgins' flat denial of having said anything that could have caused Burk to believe he could have his [undercover officers] make an offer.

[53] In my view, the trial judge's conclusion was entirely open to him on the record. Reading his reasons fairly, he used Roy's evidence not to speculate about the actual content of what Higgins may have said, but rather to assist him in evaluating the realities of the context of the discussions between Higgins and Burk, and whether Higgins could reasonably assert, so many years later, that he would never have said anything that could have caused Burk to believe he had permission to have Fournier make an offer to the appellant. As an officer in the same unit as Higgins, and as Higgins' superior, Roy was in a position to understand the realities of that context.

(iv) Alleged misapprehension no. 4 – whether the police suggested the amount of cocaine to be purchased – Fournier's evidence that if the appellant ordered more than 30 kilograms of cocaine, he would have to pay half the purchase price "up-front"

[54] In his evidence on the s. 7 application, the appellant asserted that it was Fournier who suggested the amount of cocaine he should buy – 30 kilograms – which also happened to be the amount of cocaine the RCMP had on hand.

[55] The appellant argued that Burk thought the appellant had access to $800,000 from the armoured car robbery and wanted to recover it as well as the proceeds of the 1996 one kilogram sale of cocaine to a police agent. Burk could only do that through a reverse sting and could only get approval for a reverse sting if he could show the appellant was a major drug dealer. The appellant claimed that Burk instructed Fournier to offer to sell him (the appellant) 30 kilograms of cocaine so it would appear the appellant was a major drug dealer and would thus qualify under the exceptional circumstances criterion in the Charbonneau telex. The appellant contended that Burk intentionally misled his superiors into thinking that it was the appellant who came up with the 30 kilogram amount (which also happened to produce a purchase price approximately equal to the amount of money Burk believed the appellant could access from the armoured car robbery and the one kilogram sale).

[56] In particular, in his affidavit filed on the s. 7 application, the appellant claimed that Fournier told him "some guys … backed out" of a planned transaction; "[t]hey had 30 kilograms leftover that they needed to unload"; and "[h]e wanted me to take the 30 kilograms of cocaine."

[57] Although Fournier acknowledged telling the appellant someone had backed out of a deal, Fournier denied offering to sell the appellant any particular amount of cocaine, denied that he had been instructed to talk the appellant up to any particular amount and also denied that he knew how much cocaine was available to sell. He testified that it was the appellant who came up with the number 30 kilograms.

[58] On Fournier's version of events, on July 18, 1997, he offered to sell cocaine to the appellant, told him the price would depend on the amount he purchased and that, if he bought more than 30 kilograms, he would have to pay 50 percent up-front. According to Fournier, when the appellant called him back on July 21, 1997, he told the appellant the price per kilogram had dropped and that there was no longer a requirement for 50 percent up front prior to delivery. After stating initially he was interested in "25 to 30", the appellant then specified 30 kilograms.

[59] At paras. 201 and 202 of his reasons, the trial judge rejected the appellant's assertion that Fournier offered to sell him 30 kilograms of cocaine on July 18, 1997 and accepted Fournier's evidence that the appellant came up with that number on July 21, 1997 when he indicated at first he was interested in "25 to 30" and then settled on 30.

[60] The appellant argues that the trial judge materially misapprehended the evidence by concluding that it was the appellant, as opposed to Fournier, who first mentioned the amount of 30 kilograms of cocaine during the negotiations. He points, in particular, to para. 233 of the trial judge's reasons, where the trial judge indicated it was not surprising Fournier stipulated 30 kilograms as the amount above which he would require a 50 per cent deposit given that the appellant had said he wanted 30 kilograms:

…on Fournier's evidence, which I accept, the number 30 was first injected into the discussion by [the appellant], when he indicated that he wanted "25 to 30", and then subsequently specified 30. Against that backdrop, I do not find it particularly surprising that Fournier chose 30 kilograms as the amount above which he would insist that [the appellant] provide a 50% down payment ahead of delivery.

[61] According to the appellant, this misapprehension is significant because Burk had represented to his superiors in his July 22, 1997 operational plan that the amount of cocaine available would not be disclosed to the appellant.

[62] The appellant also argues that the misapprehension affected the trial judge's view of both Fournier's and Burk's credibility. Both denied knowing that the RCMP had 30 kilograms of cocaine available to sell to the appellant. Had the trial judge not misapprehended the evidence and found instead that it was Fournier who first mentioned the number 30 kilograms, this would have undermined the officers' credibility.

[63] I would not accept this argument. To the extent that the trial judge was asserting, at para. 233 of his reasons, that Fournier told the appellant he would have to pay 50 percent up-front if he (the appellant) purchased more than 30 kilograms of cocaine after the appellant specified how much he wanted to purchase, I agree that the trial judge misstated the evidence. I am not, however, persuaded that this misstatement constitutes a material misapprehension of the evidence.

[64] On the conflicting versions of events, the question of who first mentioned the number 30 kilograms was not the issue. Rather, it was who first offered to buy or sell 30 kilograms. Considered in context, the fact that Fournier told the appellant on July 18, 1997 that he (the appellant) would have to pay 50 percent up-front if he bought more than 30 kilograms of cocaine was not central to that determination. On the appellant's version of events, Fournier offered to sell him 30 kilograms at the meeting on July 18, 1997. On Fournier's version of events, the quantity was determined in the July 21, 1997 telephone call and by that time, the up-front payment requirement had been dropped. In any event, the mere statement by Fournier that the appellant would have to pay 50 percent up front if he purchased more than 30 kilograms was unlikely to have had any impact on the appellant's choice of 30 kilograms.

[65] The trial judge recognized as much at paras. 224 to 226 of his reasons when he noted that the appellant acknowledged in his evidence that he did not have to purchase any particular amount of cocaine and, for that matter, did not feel he had to purchase cocaine at all. At para. 225, in particular, the trial judge said the following:

The foregoing exchange … makes plain that, even if Fournier had been the one to mention 30 kilograms, which I do not accept, it was never suggested that Fournier told the accused that he must buy all 30 kilograms. That being so, the mere mention of an available amount would not have constituted a suggestion as to how much cocaine the accused ought to, or must, purchase, as the case may be…. [Emphasis added.]

[66] The appellant did not agree to buy more than 30 kilograms. It is difficult therefore to see how the timing of Fournier mentioning that number could have had any impact on the transaction.

[67] I acknowledge, however, that the trial judge made the statements at para. 233 of his reasons specifically in the context of considering what was to be made of the fact that the appellant chose the number of kilograms that coincided with the amount of cocaine the RCMP had available – and, in particular, of considering the credibility of Fournier's evidence that he did not know how much, if any, cocaine was available.

[68] In my view, it obvious from his reasons, that the trial judge would have reached the same conclusion on those specific issues had he not misstated the evidence at para. 233. The trial judge gave many reasons for concluding that Burk would not have instructed Fournier to suggest a purchase of the exact quantity of cocaine that was available. In relation to Fournier specifically, the trial judge said that Fournier appeared to be intelligent and "like Burk, he was alive to the need not to artificially make [the appellant] into a high level dealer by suggesting a specific amount to him." The trial judge also said, "[h]e would also have been aware, it seems to me, that to suggest the exact amount that had been stockpiled would invite skepticism."

[69] Earlier in his reasons, the trial judge had explained why he found both Burk and Fournier to be credible and reliable witnesses. He had also correctly recited Fournier's description of the sequence of events on July 18 and 21, 1997 at paras. 33 and 34 of his reasons. I am satisfied that the trial judge's conclusion concerning whether the police suggested the amount of cocaine the appellant should purchase and concerning Fournier's and Burk's credibility would have been the same if he had not misstated the evidence at para. 233. On Fournier's evidence, he did not tell the appellant on July 18, 1997 how much, if anything, he would have to pay up-front if he purchased 30 kilograms of cocaine or less and by July 21, 1997 the up-front requirement had disappeared. Considered in context, Fournier's mere mention of the number 30 had no real significance.

(v) Alleged misapprehension no. 5 – whether Burk intentionally delayed or withheld disclosure

[70] On February 26, 1998, defence counsel at the appellant's original trial wrote to the Crown and requested further disclosure. One of the items requested was "[t]he request by Cst. Burke [sic] on July 22, 1997 for a 'reverse-sting' operation."

[71] Although Burk's unit commander signed the letter responding to the request, it is undisputed that Burk prepared the letter and enclosures. Rather than his July 22, 1997 report and his unit commander's accompanying fax, Burk provided the May 26, 1997 documentation in response to the February 26, 1998 request.

[72] On the s. 7 application, the appellant argued that Burk intentionally failed to disclose his July 22, 1997 report and his unit commander's accompanying fax in order to cover up the fact that the original May 26, 1997 request for approval of a reverse sting had been refused.

[73] The appellant claimed that Burk did this to hide the fact that he instructed Fournier to make an offer to sell cocaine to the appellant when he knew he did not have approval to do so. The appellant also asserted that Burk believed, at the time of the cover-up, that the appellant was considering pleading guilty and did not want to derail that possibility by giving the appellant the hope of a technical defence. And having withheld disclosure, Burk did not want his failure to disclose to come to light.

[74] The trial judge rejected the appellant's argument and accepted Burk's evidence that his failure to disclose was inadvertent.

[75] Among other things, the trial judge noted that a July 14, 1997 report revealed the prior refusal and that it had not been explored in evidence when that report was disclosed. However, because no complaint had been made in relation to disclosure of the July 14, 1997 report, he "assumed" it had been disclosed in a timely fashion. Therefore, he "fail[ed] to see how the defence could have been misled" by not having Burk's July 22, 1997 report and his unit commander's accompanying fax.

[76] The trial judge also relied on the fact that, while defence counsel at the original trial asked specifically for the July 22, 1997 request for approval of a reverse sting, counsel did nothing to follow up when that material was not forthcoming and instead, counsel received the May 26, 1997 request for approval of a reverse sting. The trial judge concluded that, given that defence counsel at the first trial was aware of the July 22, 1997 request, it must have been obvious that the earlier May 26, 1997 request had not been approved. After all, if the May 26, 1997 request had been approved, there would have been no need to seek approval once again six weeks later.

[77] Further, the trial judge concluded that, given that this was the first reverse sting conducted under the CDSA regulations, and given that his was not the only copy of the July 22, 1997 material, it was unrealistic to think that Burk could have believed he could successfully withhold disclosure.

[78] In any event, the trial judge was unconvinced that the July 22, 1997 request was any form of "silver bullet" for the defence that Burk would intentionally withhold – having regard to the fact that Ottawa approved the reverse sting knowing full well that Fournier made an offer to the appellant before the reverse sting was approved.

[79] On appeal, the appellant submits that the trial judge's finding that defence counsel knew or ought to have known about the initial refusal to approve the plan runs counter to an agreed statement of facts filed at trial. He also argues that in finding that Burk did not intentionally withhold disclosure of documents relating to the July 22, 1997 request, the trial judge ignored the critical nature of the documents at issue and placed an unfair onus on defence counsel to have recognized the omission.

[80] I agree that the trial judge's inference that the defence must have received the July 14, 1997 report that disclosed the prior refusal runs counter to the agreed statement of facts filed at trial. Paragraph 2 of the Statement of Facts and Admissions stipulates:

The disclosure of the documentation revealing the fact of and sequence of events surrounding the initial disapproval and ultimate approval of Kevin Burk's request for a reverse sting operation was not disclosed to the defence until at least June 27, 2000, and by the latest some time before August 15, 2000.

[81] I also have some reservations about the finding that it must have been obvious from the fact of the May 26, 1997 request for a reverse sting and defence counsel's knowledge of the July 22, 1997 request that the first request was denied.

[82] On appeal, the appellant relied on an excerpt from an Information to Obtain sworn by Burk that may have alerted defence counsel at the original trial to the existence of the July 22, 1997 request. That excerpt states, in part, "[o]n July 22nd, 1997 I submitted a request … to have authorization to complete a 'Reverse Sting' …" and does not reveal the date of the request that was submitted.

[83] The appellant argues that it must have been this excerpt that led defence counsel at the original trial to seek disclosure of the July 22, 1997 request and that, upon receipt of the May 26, 1997 request, defence counsel would reasonably have assumed that was the request referred to in the Information to Obtain.

[84] However, defence counsel at the original trial did not provide evidence on the s. 7 application at the retrial. In these circumstances, in my view, the trial judge's findings concerning what defence counsel might have done were open to him on the record.

[85] In any event, however, I see no basis on which to interfere with the trial judge's acceptance of Burk's evidence that his failure to disclose was inadvertent. Whether defence counsel could or should have done something more to follow up does not impact on Burk's credibility. In my view, the appellant failed to demonstrate any error in the trial judge's assessment of the significance of the July 22, 1997 request. The trial judge found that Burk was a credible witness. On the record before him, he was entitled to accept that Burk's failure to disclose was inadvertent.

[86] I would therefore dismiss the conviction appeal.

C. The Sentence Appeal

[87] As noted in the introduction, the trial judge sentenced the appellant to 13 years' imprisonment less 26 months' credit for pre-sentence custody for a total of 10 years 10 months' imprisonment. The trial judge also ordered that the appellant's parole eligibility be delayed until the appellant has served one-half of his sentence.

[88] In arriving at his sentencing decision, the trial judge noted several aggravating factors: the pernicious nature of cocaine; the quantity of cocaine (18 kilograms plus an agreement to purchase a further 12 kilograms); the fact that the crime was driven by greed; the fact that the appellant was armed with a loaded firearm when he committed the offence; and the fact that the appellant had indicated that he was prepared to use the gun if he was stopped by a police officer while in possession of the cocaine.

[89] The only real mitigating factor present was the fact that the appellant had been a model prisoner while detained.

[90] As for the delayed parole eligibility, the trial judge found that the length of the jail term would not satisfy the imperatives of denunciation and deterrence for three reasons. First, the appellant was prepared to use the handgun if stopped by a police officer while in possession of the cocaine. Second, the appellant's Florida conviction demonstrated that he was obviously not deterred by the sentence he received for possession of a weapon for a purpose dangerous to the public peace in 2000. Third, taking account of all the circumstances of the case, a sentence that did not require the appellant to serve half of it before being eligible for parole would not adequately serve the principles of general deterrence and denunciation.

[91] In oral argument, the appellant abandoned two of his proposed grounds for seeking leave to appeal sentence. In the result, the appellant advanced the following grounds for seeking leave to appeal:

• the trial judge relied inappropriately on a finding that the appellant was "deadly earnest" in his threat to "blast" a police officer if stopped while in possession of the cocaine as an aggravating factor, when that was not the only inference arising from the circumstantial evidence relating to this issue and when the appellant had already been sentenced for possession of a weapon for a purpose dangerous to the public peace in 2000;

• the trial judge relied inappropriately on the appellant's Florida conviction to hold that the appellant was "undeterred" by his original sentence, given that those events would not have arisen had the appellant been sentenced for all offences at the same time in 2000;

• the trial judge erred in failing to give proper effect to the principle of totality taking account of the total sentence imposed for the three offences arising out of this one police project; and

• the trial judge's reliance on the fact that the appellant was "deadly earnest" in his threat to "blast" a police officer was unreasonable and no other circumstances justified the increase in the length of sentence the appellant must serve before becoming eligible for parole.

[92] I would not accept these submissions. The appellant contends that the only evidence that the appellant was "deadly earnest" in his claim that he would use his gun if stopped by the police was the evidence of his conversations with the undercover officer and that those conversations were equally consistent with "macho puffery" and do not justify a finding on a beyond a reasonable doubt standard. Moreover, as the appellant had already pleaded guilty to possession of a weapon for a purpose dangerous to the public peace and been sentenced for possession of a loaded handgun when he was arrested on August 21, 1997, the trial judge erred in taking account of that fact as an aggravating factor in relation to the possession of cocaine for the purpose of trafficking offence.

[93] I disagree. Undercover officers unloaded the appellant's handgun when they met him initially on August 21, 1997. Yet, when the appellant was later arrested after picking up the cocaine, his handgun had been reloaded. In the light of this circumstance, the trial judge was fully justified in finding that the appellant was "deadly earnest" in the threats he had made.

[94] Moreover, I see nothing improper in the trial judge listing the loaded handgun as an aggravating factor on the possession for the purpose of trafficking charge even though the appellant had previously been sentenced for possession of a weapon for a purpose dangerous to the public peace in connection with possession of the loaded handgun. Whether the appellant had previously been sentenced for possession of a weapon for a purpose dangerous to the public peace, possession of a loaded handgun was an aggravating feature of the possession for the purpose of trafficking charge. The important question is whether the sentences imposed are demonstrably unfit. Taking account of all the circumstances, I am not convinced that a total sentence of 16 years 6 months' imprisonment for the three offences meets the threshold of demonstrably unfit.

[95] Nor do I think the trial judge erred in failing to apply the totality principle. In this case, the prior sentence was served (November 2000) more than 13 and a half years before the new sentence was imposed (May 2014). Considered in that context, the sentences imposed – 42 months based on pre-sentence custody of 21 months in 2000 and 10 years and 10 months taking account of pre-sentence custody in 2014 – can hardly be viewed as potentially crushing.

[96] Finally, I am not persuaded that the trial judge made any error in his discretionary decision concerning parole eligibility.

[97] Accordingly, I would grant leave to appeal sentence but dismiss the sentence appeal.

D. Disposition

[98] Based on the foregoing reasons, I would dismiss the conviction appeal, grant leave to appeal sentence, but dismiss the sentence appeal.

Released: January 11, 2017

"KMVR" "Janet Simmons J.A."

"JAN 11 2017" "I agree K. van Rensburg J.A."

"I agree B.W. Miller J.A."

Footnotes

[1] CDSA (Police Enforcement) Regulations, S.O.R./97-234

[2] Burk acknowledged in his evidence that he knew the appellant claimed that he had 25 kilograms of cocaine.