WARNING
The President of the panel hearing the appeal directs that the following should be attached to this file:
The publication ban and sealing order issued by Justice Vanessa V. Christie on January 29, 2021, pursuant to ss. 486.5 and 486.7 of the Criminal Code shall continue. The order prohibits the publication of any information that might tend to identify any witness who testified in his or her capacity as an undercover police operator. The order further directs that certain evidentiary exhibits shall be sealed from public access. Redacted versions of the exhibits are available for public access, but any materials contained in the exhibits that disclose identifying personal information are subject to a publication ban.
Court of Appeal for Ontario
Date: 2024-02-26 Docket: C70177
Judges: MacPherson, Sossin and Copeland JJ.A.
Between:
His Majesty the King Respondent
and
Richard Senior Appellant
Counsel: Ingrid Grant and Jeff Marshman, for the appellant Katie Doherty, for the respondent
Heard: February 21, 2024
On appeal from the convictions entered on November 10, 2021 and the sentence imposed on January 20, 2022 by Justice Vanessa V. Christie of the Superior Court of Justice, with reasons reported at 2021 ONSC 2729, 2021 ONSC 7254, and 2022 ONSC 136.
Copeland J.A.:
[1] The appellant was an officer of the York Regional Police Service (“YRPS”). In February 2018, as a result of information provided by a confidential informant, the YRPS began an investigation into whether the appellant was involved in criminal activity.
[2] The investigation began with a review of Canadian Police Information Centre name checks run by the appellant from 2006 to 2018. As a result of that review and other investigation, including production orders on the appellant’s phone, it appeared that the appellant was improperly obtaining and disclosing confidential information from police databases for personal reasons, including to friends and family. Further, based on the particular names and circumstances of certain queries run by the appellant on police databases, investigators believed there was a potential connection between the appellant’s conduct and organized crime.
[3] After the initial investigation, two undercover officers were deployed to continue the investigation. One was another YRPS officer who was assigned as a partner to the appellant. The other posed as a confidential informer involved in drug trafficking and organized crime. In light of the publication ban and sealing order imposed by the trial judge on the identities of both undercover officers, I refer to the officer who was assigned as the appellant’s partner as “UC1”. I refer to the officer who posed as a confidential informer as “Henry”, the first name of the alias he used during the investigation.
[4] As a result of the investigation, the appellant was charged with 14 counts: theft under $5,000, two counts of uttering a forged document, two counts of unauthorized use of a computer, three counts of breach of trust, possession of a firearm obtained by theft, weapons dangerous, attempted robbery, trafficking in cocaine, and two counts of trafficking in steroids.
[5] In a trial by judge alone, the appellant was found guilty of 11 counts. Following the findings of guilt, the appellant brought an entrapment application seeking to stay most of the counts of which he was found guilty. The trial judge found that the appellant had been entrapped on three counts and stayed those counts. She dismissed the balance of the entrapment application and entered convictions on the eight remaining counts. The appellant was sentenced to a global sentence of seven and a half years imprisonment on the eight remaining counts.
[6] The appellant appeals five of the eight counts on which he was convicted. The appellant argues that the trial judge committed errors in her analysis of entrapment on these counts and that they should be stayed. In the event the court agrees that some or all of the counts under appeal should be stayed, the appellant argues that his sentence should be varied. [1]
[7] After hearing the appellant’s submissions, the court did not call on the Crown and dismissed the appeal from the Bench with reasons to follow. These are the reasons.
Overview of the law of entrapment
[8] As context for the appellant’s arguments, recall that entrapment can be established in either of two distinct ways:
- The police provide a person with an opportunity to commit an offence without a reasonable suspicion that the person is already engaged in criminal activity or that people are carrying out criminal activity at a specific location (the “opportunity branch”); or
- Where the police have reasonable suspicion about a person or a place, they go beyond merely providing an opportunity and induce the commission of an offence (the “inducement branch”) (R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at paras. 15-20; R. v. Mack, [1988] 2 S.C.R. 903, at pp. 917-18, 959-66; R. v. Barnes, [1991] 1 S.C.R. 449, at pp. 460-63).
[9] On all of the five counts under appeal, the appellant alleges errors in the trial judge’s analysis of the inducement branch of the entrapment test. For three of the five counts, the appellant also alleges errors in the opportunity analysis. I address each set of counts separately.
Counts #4 and #5 – Unauthorized use of computer database and breach of trust
[10] These counts involve the appellant running a licence plate on a police database at the request of Henry and disclosing the results to him.
[11] The appellant concedes that with respect to counts #4 and #5 the police had reasonable suspicion which permitted them to offer the appellant opportunities to commit these offences. Thus, the first branch of entrapment is not engaged. However, the appellant argues that the trial judge made two errors in her assessment of whether the police induced the commission of these counts.
[12] First, the appellant argues that the trial judge erred by implicitly relying on the erroneous legal proposition that, to be entrapped, police conduct must be liable to induce “the average person” into committing the offences. The appellant argues that the trial judge ignored the following guidance in Mack, at pp. 961-62:
I am not of the view that the hypothetical or average person model is the only relevant method of analysis. There may be situations where it cannot be concluded that a hypothetical person would likely have committed the offence under the same circumstances, and yet the presence of other factors support the conclusion that the police involvement in the instigation of crime has exceeded the bounds of propriety. [Emphasis in original]
[13] I am not persuaded that the trial judge committed this error. At the outset of her reasons on the entrapment application, the trial judge conducted a thorough review of the law in relation to entrapment. I see no error in her review of the applicable law. In her review of the law, she quoted the passage from Mack referred to above. She recognized that the “average person” inquiry is a tool for analysis of entrapment, but not the only measure of whether police conduct constitutes entrapment by inducement. She also recognized that the list in Mack of the types of conduct that may constitute inducement is not exhaustive. Finally, she recognized that the question of whether a police operation constitutes exploitation or inducement is “a highly fact specific inquiry”.
[14] Consistent with Mack, in relation to counts #4 and #5, the trial judge considered the question of whether an average person in the circumstances of the appellant would have been induced to commit the offences. However, her reasons demonstrate that she did not limit her analysis of inducement to whether an average person would have been induced. She properly considered all the circumstances and found that the police did not induce the appellant to commit the offences and did not go beyond providing the appellant with an opportunity to commit the offences. I see no basis to interfere with these findings.
[15] Second, the appellant argues that the trial judge erred by finding that there was no deceit, fraud, trickery, or reward at play. The appellant argues that the undercover operation, by its very nature, involved deceit and trickery. The appellant further argues that career rewards were effectively dangled to him by the police as an inducement. He argues that these took the form of valuable tips from Henry that assisted the appellant in his career at YRPS, coupled with the risk that tips would be withheld if he refused to run the licence plate query, and praise for the appellant’s work. The appellant argues that these were inducements that manufactured the offences.
[16] I reject this argument. The use of undercover officers is not the type of deceit or trickery that, without more, amounts to entrapment by inducement.
[17] I also reject the argument that the appellant was induced by the prospect of career advancement based on the belief that Henry’s tips led to significant seizures, and the risk that Henry would withdraw from providing information if the appellant did not run the licence plate query. This argument is inconsistent with the factual findings of the trial judge.
[18] The trial judge found that the encouragement the appellant received for his work with Henry amounted to “nothing more than a ‘pat on the back’”. She found there were no hints or promises of promotion as a result of the appellant’s work with Henry, or threats of professional consequences if the flow of information ended. She rejected the proposition that Henry had threatened to withhold more tips if the appellant did not run the licence plate query. Rather, she found that Henry made clear in the intercepted conversations that the request to run the licence plate query was “separate” from the information he had been providing and that he had other information “lined up” to provide. She also rejected the proposition that UC1 encouraged the appellant to run the licence plate query. UC1 conveyed to the appellant that he was not prepared to run the licence plate query (after the appellant repeatedly asked him to do it). The trial judge found that, at most, UC1 suggested to the appellant that, since Henry was the appellant’s confidential informant, the appellant “would have to judge for himself what he should and should not do.” These findings are supported by the record and are entitled to deference.
[19] The question of whether police conduct went beyond providing an opportunity and improperly induced a person to commit an offence is a factual question that must be considered in all of the circumstances. The trial judge in this case turned her mind to all of the circumstances and found that the appellant had not satisfied her on a balance of probabilities that the police induced the appellant to commit the offences. I see no basis to interfere with that finding.
Counts #6, #7, and #9 – possessing a firearm obtained by crime, weapons dangerous, and traffic cocaine by offer
[20] These counts involve a plan to rob a drug stash warehouse and dispose of the proceeds of the robbery, anticipated to include cash and cocaine. The appellant was also charged with attempted robbery. However, the trial judge found that the various acts committed by the appellant to plan the robbery, including unlawfully obtaining a YRPS shotgun to be used in the robbery, did not go beyond preparation. As a result, he was acquitted of the attempted robbery count.
[21] The appellant challenges the trial judge’s finding that he was not entrapped on these counts on both the opportunity branch and the inducement branch of the analysis.
[22] The appellant argues that the trial judge committed two errors in her analysis on the opportunity branch.
[23] First, the appellant argues that the trial judge erred by limiting her assessment of whether the police provided an opportunity to commit the offences related to the drug warehouse to the situation discussed in Ahmad, at para. 63. In that portion of Ahmad, the Supreme Court held that the creation of an opportunity by police “will be established when an affirmative response to the question posed by the officer could satisfy the material element of an offence.” The appellant argues that this passage of Ahmad is specific to the dial-a-dope context of that case.
[24] I am not persuaded that the trial judge made the error asserted regarding the legal meaning of police providing an opportunity for an individual to commit an offence. In the portion of her reasons where the trial judge referred to the passage from para. 63 of Ahmad, she made the point that “[n]ot every police action will amount to providing an opportunity to commit an offence.” She then referred to the passage from Ahmad as an “example”.
[25] Further, as noted above, at the start of her reasons on the entrapment application, the trial judge thoroughly reviewed the law on entrapment, including the meaning of the police providing an opportunity to commit an offence. It is clear from her review of the law that she understood that the opportunity analysis is not limited to the type of circumstance set out in para. 63 of Ahmad, but rather must focus on whether the police conduct is sufficiently proximate to the conduct that would satisfy the elements of the offence: Ahmad, at para. 64; R. v. Ghotra, 2020 ONCA 373, 455 D.L.R. (4th) 586, at paras. 21, 29, 31 (both quoted by the trial judge in her reasons). In light of the trial judge’s correct and careful review of the meaning of providing an opportunity in entrapment law, I am not persuaded she erred in law regarding the scope of that concept.
[26] Second, the appellant argues that the trial judge erred in finding that the police did not create the opportunity for the appellant to commit the weapons offences and trafficking cocaine by offer. This argument has two branches: (i) the trial judge found as a fact that UC1 introduced the idea of breaking into the drug warehouse, but erred in failing to find that UC1 also introduced the idea of a robbery of the warehouse (i.e., theft with violence/firearms as opposed to by breaking and entering); and (ii) that, even accepting the trial judge’s finding that UC1 only raised the idea of theft (and not the idea of an armed robbery), the appellant’s subsequent acts in planning a robbery with firearms and stealing a YRPS shotgun should be stayed because they would not have occurred absent UC1 initially raising the idea of stealing from the drug warehouse.
[27] I reject both branches of this argument.
[28] The first branch turns on the trial judge’s interpretation of the conversations between the appellant and UC1 on the recorded intercepted communications. The trial judge’s finding that UC1 only raised the issue of theft and that it was the appellant who raised the issue of an armed robbery was open to her on the record. It is not this court’s role to reassess the trial judge’s findings based in the record before her.
[29] I also reject the second branch of the appellant’s argument about providing an opportunity. The trial judge found that UC1 initially brought up the possibility of stealing from the drug warehouse by breaking and entering. She found that UC1 did this inadvertently, in the sense that he did not intend to provide an opportunity to commit an offence; rather his intent was to divert the appellant from persistently asking him to run the licence plate query requested by Henry. However, the trial judge also found that it was the appellant who, of his own accord, began planning the new and significantly more serious offence of robbing the warehouse using firearms, and planned and executed the theft of the YRPS shotgun. Similarly, it was the appellant, who, of his own accord, raised the issue of selling cocaine.
[30] As the trial judge found, the offences committed by the appellant went far beyond any opportunity inadvertently raised by UC1 to steal from the warehouse by break and enter. There is a meaningful difference between theft and robbery with a firearm. In the words of Ahmad, at para. 64, the initial comment of UC1 about stealing from the warehouse was not “sufficiently proximate” to the offences ultimately committed by the appellant to constitute entrapment. In essence, the appellant urges on this court the type of “but-for” causation analysis of providing an opportunity rejected by this court in Ghotra, at para. 29.
[31] With respect to the inducement branch of the analysis, the appellant argues that it would be an abuse of process for the appellant to be convicted in relation to the warehouse break-in scheme because the entire scheme was the product of a fictional scenario created by police.
[32] I reject this submission. It is disconnected from the law and from the trial judge’s findings. As with the licence plate query counts, the trial judge properly considered the factors set out in Mack in assessing whether the appellant was induced to commit the offences related to the drug warehouse. She found that an average person in the appellant’s circumstances would not have been induced into the commission of these offences. She also rejected the appellant’s argument that he was induced or pressured. As she stated in her conclusion on inducement for these counts:
This court does not accept that Cst. Senior was induced into these offences by UC1 using his position as a mentor and friend. As previously stated, the conversations about the “operational plan” involving the warehouse showed both men equally participating in the conversation, often in a light-hearted way. There was no suggestion in the evidence that Cst. Senior was being pressured to do this. There was certainly no evidence upon which to conclude that he was being pressured to do this by his friend who was having financial problems, as the Applicant suggested.
Disposition
[33] The conviction and sentence appeals are dismissed.
Released: February 26, 2024 “J.C.M.” “J. Copeland J.A.” “I agree. J.C. MacPherson J.A.” “I agree. Sossin J.A.”