WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.31(1), (2), (3), or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.
(3) In determining whether to make the order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) the nature of the offence;
(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(d) whether the order is needed to protect the security of anyone known to the witness;
(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(e.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(g) the importance of the witness’ testimony to the case;
(h) whether effective alternatives to the making of the proposed order are available in the circumstances;
(i) the salutary and deleterious effects of the proposed order; and
(j) any other factor that the judge or justice considers relevant.
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section. 2015, c. 13, s. 17, c. 20, s. 38.
WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.7(1), (2), (3), or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.7 (1) In any proceedings against an accused, the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, make any order, other than one that may be made under any of sections 486 to 486.5, if the judge or justice is of the opinion that the order is necessary to protect the security of any witness and is otherwise in the interest of the proper administration of justice.
(2) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
(3) In determining whether to make the order, the judge or justice shall consider
(a) the age of the witness;
(b) the witness’s mental or physical disabilities, if any;
(c) the right to a fair and public hearing;
(d) the nature of the offence;
(e) whether the witness needs the order to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the security of anyone known to the witness;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(h) the importance of the witness’s testimony to the case;
(i) whether effective alternatives to the making of the proposed order are available in the circumstances;
(j) the salutary and deleterious effects of the proposed order; and
(k) any other factor that the judge or justice considers relevant.
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section. 2015, c. 20, s. 22.
Corrected decision: Paragraph 79 of the original judgment was corrected on March 19, 2024.
Court of Appeal for Ontario
Date: 2024-03-18 Docket: COA-22-CR-0103
Tulloch C.J.O., Feldman and Monahan JJ.A.
BETWEEN
His Majesty the King Respondent
and
Andrzej Krawczyk Appellant
Counsel: J. Randall Barrs and Richard Litkowski, for the appellant Diana Lumba, for the respondent
Heard: November 6, 2023
On appeal from the conviction entered on September 12, 2021 by Justice Thomas A. Bielby of the Superior Court of Justice.
Feldman J.A.:
[1] Following a police sting operation, the appellant was convicted of attempting to import cocaine into Canada and possession of $12,500 as proceeds of crime, which he received for the cocaine from a police agent (“PA”). The appellant claimed he was entrapped and sought a stay, but his claim was dismissed. He appeals the dismissal and seeks a stay of the convictions.
Background Facts and Findings by the Trial Judge
[2] The evidence at the trial consisted of an Agreed Statement of Facts, a small number of exhibits, including audio-recordings from wiretapped conversations between the appellant and the PA, as well as the testimony of the appellant and of the PA. Their stories agreed on a number of facts but diverged on others, including on the key issue of who initiated the proposal that the appellant, a Sunwing airplane mechanic, would remove and deliver cocaine from planes.
[3] The story told in the Agreed Statement of Facts commenced on April 4, 2019, when the RCMP began to legally monitor the conversations between the PA and the appellant. However, their communications regarding the drug importation scheme began, according to the PA, at Christmas, 2017, and were not recorded or documented.
The PA’s Testimony
[4] The PA testified regarding his criminal past and his record, which began when he was a youth and included assault, possession of a weapon, possession of cocaine and possession of proceeds of crime. Over the years, he trafficked cocaine and marijuana. For six months in 2015, he also trafficked drugs under the instruction and protection of a corrupt Hamilton police officer. [1] During that period, the PA was a paid agent of the OPP, for which he received $80,000. [2] After that, he continued as an informant for the OPP, who contacted him every few weeks for information. This led to him eventually informing on the appellant, then becoming a paid agent for the RCMP against the appellant.
[5] Between 2000 and 2018 the PA worked at his brother’s business, an auto body shop in London, Ontario. The appellant also worked there for about two or three years beginning in 2000. The PA next saw the appellant in December, 2017, when the appellant stopped by the body shop.
[6] According to the PA, it was the appellant who, during this visit, first initiated the discussions concerning the importation of drugs. The PA agreed that the appellant’s purpose in coming by was to see the PA’s brother, who owned the body shop. However, in the course of that visit, the appellant told the PA that he was now a certified airplane mechanic working on planes for Sunwing at Pearson Airport, and asked him if he had contacts “down south” to move cocaine on airplanes that he was servicing. The PA responded that he could probably help the appellant.
[7] The PA testified that initially he thought the appellant was lying because it’s a “big thing” to have an airport connection, but that the two exchanged phone numbers and began corresponding. The PA denied that he had initiated the idea or that he offered the appellant the opportunity to assist in the importation of cocaine.
[8] In examination in chief, the PA said that in 2000, he and the appellant did not talk about drugs. In cross-examination, he claimed that the appellant nevertheless knew he was a criminal and a drug dealer because of his flashiness and nice car and because they had mutual friends, although he did not name any.
[9] Their next interaction after the Christmas 2017 visit, according to the PA, was in February or March of 2018, when he introduced the appellant to someone from Jamaica who was involved in the drug trade. The PA also said that at a later meeting, the appellant showed him a few kilograms of cocaine divided into half-kilogram packages that the appellant had removed from an airplane and for which he needed a buyer. The PA claimed that he lined up a buyer who purchased a half-kilogram and subsequently a full kilogram of cocaine from the appellant, and that the appellant gave him $1,000 for his services. Next, in June 2018, the appellant gave him nine ounces of cocaine to sell, but the PA eventually returned it to him unsold. The appellant told the PA he would get 30% of the value of the cocaine for off-loading it from the plane.
[10] The PA was challenged about these claims on cross-examination, as there were no notes or evidence to corroborate it. I observe that it is inconsistent with the PA’s claim that the appellant was looking for sources of cocaine to import, that he actually had those sources but no one to purchase the cocaine here.
[11] According to the PA, from July 2018 to March 2019, he and the appellant continued to discuss the importation of cocaine by hiding it on airplanes, and he introduced the appellant to two drug dealers who would potentially be able to load the cocaine in Jamaica, but they never did.
[12] In March 2019, the PA signed a Letter of Acknowledgement whereby he became an RCMP agent to investigate suspected criminal activity by a number of targets he identified, including the appellant. The PA was to be paid $275,000, as well as a maintenance fee of $3000 per month. He explained that the high amount was due to the fact that the crime was the importation of cocaine. He claimed that he decided to become a police agent in order to start a new life outside the province, but agreed that money was the main motivating factor.
[13] In June 2019, the PA signed a second Letter of Acknowledgement where a further target was added and the compensation was raised to $400,000.
[14] Once the PA became an official RCMP agent, all of his interactions with the appellant were recorded and were entered into evidence. The content of the recordings is summarized in the Agreed Statement of Facts, which is outlined next.
The Agreed Statement of Facts
[15] On April 9, 2019, the PA and the appellant spoke about the appellant’s ability to conceal and off-load contraband from airplanes. On May 9, the PA introduced the appellant to an RCMP undercover agent, Shawn, who was posing as someone who could load cocaine onto planes in Jamaica. The appellant offered to remove the cocaine in Toronto from behind panels where it was to be hidden in exchange for $12,500.
[16] At a subsequent meeting on May 14, 2019, they discussed further details about the Canada Border Services Agency forms, and the appellant told Shawn that he would provide pictures of the panels at the front of the plane, which they would use to hide the cocaine.
[17] On June 1, the PA texted the appellant asking if he could off-load a shipment the following day, but that plan was later aborted by the RCMP when the appellant told the PA he was flying to Jamaica that day for work.
[18] On June 23, the appellant called the PA, who told him they would do a test run that day with “only one in there”, and the appellant replied that it was “no problem”. The RCMP then loaded a one-kilogram package containing an inert substance into a location on a Sunwing plane that had been predetermined by the appellant.
[19] Before the plane arrived in Toronto on June 28, there were a number of communications between the appellant and the PA regarding tracking of the plane, and the appellant told the PA to get his guy ready for “another one”.
[20] When the plane arrived at 1:10 a.m. on June 28, the appellant and his associate Gianni Ballestrin retrieved the package by entering the back of the plane with a ladder. At 1:41 a.m., the appellant called the PA and asked him to come by, then texted him “12.5”. At 3:35 a.m., the appellant gave the PA the package in exchange for $12,500 cash.
[21] While in the car together, the appellant told the PA to tell his guys not to damage anything on the plane that they would have to fix later, and asked for a “ball” (3-4 grams of cocaine), saying he wanted to try it. The appellant also said he would do more of these loads.
[22] In subsequent recorded conversations before the appellant and Mr. Ballestrin were arrested on July 25, the appellant discussed the drug trade and further deliveries with the PA, and suggested that Trinni, one of the drug dealers whom the PA had introduced him to, owed him $24,000.
The Appellant’s Testimony
[23] The appellant told a different story of the time leading up to the recorded conversations, and provided additional evidence about the conversations heard on the recordings.
[24] In 2000, the appellant began working at the PA’s brother’s auto body shop in London, Ontario, where he met the PA. The appellant denied that there was an air of criminality about the people he worked with, including the PA. After two to three years, he moved to Toronto and attended Centennial College, graduating as an airplane mechanic. In 2019, he was earning $80,000 per annum working for Sunwing.
[25] In December 2017, while the appellant was living in Kitchener and working for Sunwing, he went to the body shop to see if it was still there. He testified that he did not see the PA on that visit, but rather in January 2018, when he brought his car in to be repaired. He did not know that the PA would be there, and testified that he knew nothing about the PA’s life or reputation. During that visit, he told the PA he worked for Sunwing and they exchanged phone numbers.
[26] He testified that their next contact was when the PA called him and asked if he could take cocaine off an airplane, and that he responded, “absolutely not”. Approximately two weeks later, the PA came to Kitchener, and offered the appellant $2,000 to “do him a favour”. He was offered more the next time. There were further conversations, and the proposed fee was eventually raised to $10,000. The PA told the appellant that all he had to do was take the drugs off the plane.
[27] At the time, the appellant had no criminal record. He said he had never used, possessed or trafficked cocaine.
[28] When the price for the job reached $10,000, the appellant spoke with a co-worker at Sunwing, his co-accused, Mr. Ballestrin, and they agreed to do it together. The appellant testified that he decided to get involved because he was having financial problems and needed the money. He stated that it was his understanding that the first time would be a trial run with a “dud” package.
[29] The PA told the appellant that they would need to find a supplier. The appellant acknowledged that, as potential suppliers kept falling through, he became frustrated by the delay of many months. Some time later, the PA told him that he had a supplier and introduced him to Shawn, who, unbeknownst to the appellant, was an undercover RCMP officer. During that meeting, the appellant was told that the drugs would come from Jamaica, hidden in panels in the plane. They discussed the policies and procedures of the CBSA and how the plane could be tracked by GPS.
[30] In a meeting on May 8, 2019, the appellant agreed to take the drugs off the plane for $12,500, $2,500 of which would go to Mr. Ballestrin.
[31] Although the appellant said that he thought the first time would be with a fake package, he agreed that it crossed his mind, on June 28 when he and Mr. Ballestrin off-loaded it from the plane, that there may have been cocaine in the package. When he and Mr. Ballestrin delivered the package, he asked the PA for a “ball”, saying he wanted to try cocaine, but he explained that he did not think it would come from the package he was delivering.
[32] In cross-examination, the appellant said he was not intending to do any more retrievals after June 28 or only one more, and explained away the subsequent meetings with the PA where they discussed more shipments and dates, on the basis that he was pretending and doing it for Mr. Ballestrin.
Findings by the Trial Judge
[33] The trial judge first made findings of guilt based on the Agreed Statement of Facts. The trial then proceeded on the entrapment issue with the testimony of the PA and of the appellant. However, because the appellant testified that he believed he was only doing a test run with a “dud” package, his counsel submitted to the trial judge that he should find the appellant not guilty of attempt to import. The trial judge addressed that issue first.
[34] The trial judge did not believe the appellant that he thought the package was fake, nor did his testimony raise a reasonable doubt that he knew the package contained cocaine. The trial judge commented that when testifying, the appellant “appeared very nervous and spoke quickly”. He found his answers to be concocted, and that his explanation that he believed that another four shipments would be duds “had a desperate tone to it”. He rejected the notion that anyone would pay $50,000 for dud deliveries.
[35] The trial judge summarized six reasons for finding that the appellant had knowledge (i.e., believed) that the package contained cocaine:
- The accused was paid $12,500, to retrieve the package from the airplane. This is a significant amount of money to retrieve a package having no value.
- The accused admitted to having financial problems and therefore had motive.
- The accused admitted that it crossed his mind that the package did, in fact, contain cocaine.
- On June 23, 2019, the accused spoke with the PA and was told that “they were able to do a test run today with only ‘one’ in there”. From that statement I infer that the test run was to involve the shipment of “one” package containing cocaine, as opposed to multiple packages or just one kilo of cocaine as opposed to multiple kilos. The statement does not suggest the package would not contain cocaine. It is an agreed fact that, at no time did the RCMP tell the PA that the package would not contain cocaine.
- On June 28, 2019, the accused, after retrieving the package from the plane, gave the package to the PA saying, “I don’t wanna fuckin put my paws on it” which suggests a knowledge of the contents of the package.
- More importantly, in the same conversation, the accused asked the PA, “Give me a fuckin ball of ‘that’ eh.” By way of explanation the accused testified that he wanted to try cocaine but did not expect it to come from the package he had just given to the PA. However, this further attempt to distance himself from criminal activity falls short. The accused had just given the PA the package and I find the use of the word, “that”, was a reference to the contents of the package, being cocaine “that” the accused had just given the PA.
[36] The trial judge then addressed the entrapment issue, where the remedy would be a stay of the conviction based on abuse of process by the Crown. He referred to the seminal Supreme Court authority of R. v. Mack, [1988] 2 S.C.R. 903, recently confirmed by the court in R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577.
[37] The trial judge stated that the onus was on the accused to prove entrapment on a preponderance of evidence.
[38] Although there was some discussion in submissions regarding the significance of when the PA became a police agent, the case did not turn on that issue. [3] The trial judge concluded that the issue of entrapment depended “to a large degree…on who, as between the accused and the PA, initiated the idea of importing cocaine by hiding it behind panels in airplanes”.
[39] He found that the only evidence that negated the existence of a reasonable suspicion that the appellant was involved in criminal activity came from the appellant, and the trial judge did not accept his evidence. To the contrary, he concluded that the evidence supported the PA’s claim that it was the appellant who approached him for contacts down south in order to import cocaine.
[40] The trial judge stated that he “recognize[d] that the PA also had a credibility problem given his history of criminal activity and his criminal record and the amount of money he was paid as a PA”. However, the trial judge accepted his evidence because he was adamant in chief and in cross-examination that it was the appellant who approached him. He also found that the appellant’s eagerness and his level of experience, which were disclosed in the Agreed Statement of Facts and the taped conversations in 2019, were corroborative of the point.
[41] The trial judge reiterated that the appellant’s eagerness to carry out the scheme in 2019 was consistent with him initiating the first contact with the PA. Also, his conversation where he said he did not “do bags” and setting the price for retrieving the package suggested some sophistication and some history in the drug trade.
[42] The trial judge concluded:
Simply stated, I find that since the scheme was initiated by the accused, in the spring of 2019, there existed a reasonable suspicion of criminal activity on the part of the accused.
The accused has failed in his onus to prove, on a preponderance of evidence, that he was the subject of entrapment and his application for a stay of the proceedings is dismissed.
Issue on Appeal and Analysis
[43] The sole issue on the appeal is whether the trial judge erred in law in finding that the appellant had not proved that he was entrapped, by accepting the evidence of the PA without addressing and resolving his critical credibility and reliability issues. These included his history of criminality, lying and deception, and his significant financial motive to lie.
[44] As the Supreme Court stated in Ahmad, at para. 15, the test for entrapment and its rationale set out by the court in Mack has stood the test of time. That test is found in Mack at p. 959:
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.
[45] In setting out this test, the court in Mack explained, at p. 975, that because entrapment occurs where the accused has committed the crime, but did so as a result of an abuse of process by the Crown:
[T]he best way to achieve a balance between the interests of the court as guardian of the administration of justice, and the interests of society in the prevention and detection of crime, is to require an accused to demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment.
[46] However, while the onus of proof of entrapment is on the accused by a preponderance of evidence, there is an important evidentiary burden on the Crown to prove that before the police offered the accused the opportunity to commit the crime, they had a reasonable suspicion that the accused was already involved in the criminal activity. The purpose is to catch a person in the act of criminality they were already engaged in, not to entice a vulnerable neophyte into becoming involved in criminal activity.
[47] In Ahmad, the court explained that it is the Crown that has in its possession the evidence of the basis for the police to say they had reasonable suspicion that the accused was already involved in criminal activity before they gave him the opportunity to commit an offence. There is therefore an evidentiary burden on the Crown to place the evidence of the basis for the reasonable suspicion before the court. The court stated at para. 83:
[T]he facts relied upon to ground reasonable suspicion must be put before the court for independent review. As we have emphasized, the primary purpose of the reasonable suspicion standard is to allow for meaningful judicial review of police conduct…Requiring the police to disclose their reasons for targeting an accused does not alter the onus on the accused to prove entrapment; it merely recognizes that only the police can point to the circumstances known to them that give rise to reasonable suspicion.
[48] In this case, the only evidence that the police had that gave them a reasonable suspicion that the appellant was already involved in cocaine trafficking or importing before they introduced him to the undercover officer and set up the fake importation of cocaine on June 28, 2019 was from the PA. The PA was the quintessential unsavoury and untrustworthy witness. Yet, nothing the PA said about the appellant’s involvement with drug trafficking was corroborated by the RCMP. No text messages were checked, no surveillance set up.
[49] A trial judge in a judge alone trial is not required to specifically give himself a Vetrovec warning in his reasons because trial judges are presumed to know the law: R. v. Fuller, 2021 ONCA 888, at para. 19. In this case, trial counsel for the appellant, in his closing submissions, emphasized the reasons why the PA was untrustworthy and why his uncorroborated evidence should not be accepted. In his reasons, the trial judge looked for corroboration of the PA’s evidence on the key issue of who initiated the scheme for importing cocaine.
[50] The appellant submits that the trial judge erred in two ways in his analysis. First, although he made a brief reference to the PA’s credibility problems, the trial judge did not resolve the problems before accepting his evidence, and incorrectly relied on the PA’s “adamance” as a factor in doing so. Second, the trial judge incorrectly found that the appellant’s willingness to participate in the importing scheme in the spring of 2019, over a year after the idea was first discussed with the PA and after a large fee of $12,500 had been agreed upon, amounted to corroboration of the allegation that it was the appellant who first suggested the scheme to the PA.
The Credibility of the PA
[51] The trial judge’s only reference to the PA’s credibility problems was one sentence where he mentioned his history of criminal activity, his criminal record and the amount of money he was being paid.
[52] However, this witness had more than a “credibility problem”. He was a lifelong career criminal. His criminal record began in 1991 as a youth and includes multiple convictions for break-enter and theft, possession of property obtained by crime under $1,000 and over $1,000, possession of narcotics, fail to comply with probation orders, assault, fail to attend court, possession of a prohibited or restricted firearm with ammunition, and possession of narcotics for the purpose of trafficking. His record also discloses a lengthy list of very serious charges that were withdrawn when he was working with a corrupt Hamilton police officer, including robbery, assault, possession for the purpose trafficking and numerous weapons charges.
[53] The PA admitted that he suffered from memory problems as a result of smoking marijuana daily since he was very young and possibly as a result of a number of car accidents. He also acknowledged that he had lied to police and breached the terms of his Letters of Acknowledgement.
[54] He had a significant history of informing on people for compensation. His history included working for a corrupt police officer in Hamilton, where he carried on his drug dealing with impunity, and where he supplied drugs to informants of the corrupt officer, resulting in arrests of buyers from those informants. He had been a paid OPP agent for six months in 2015 receiving $80,000, then continued to be contacted by them for information every two to three weeks thereafter. It was to the OPP that he first reported on the appellant.
[55] When the PA was interviewed on numerous occasions by the RCMP, before he was formally hired as an agent to pursue the appellant in April 2019, he outlined his whole history of crime and received immunity for everything, as well as the substantial fee.
[56] None of these seriously significant details were referred to or addressed by the trial judge as part of a credibility or reliability analysis.
[57] Nor did the trial judge discuss the extraordinary size of the fee that the PA was receiving for delivering the appellant. It is a sum which could give any person, never mind a person like the PA who admitted to having “no moral compass”, a motive to lie.
[58] Additionally, when the RCMP officers were interviewing the PA, they made it clear that they did not want to involve people who were not already doing crimes. In addition to $3,000 per month since the inception of the Letter of Acknowledgment, the PA had already received $300,000 by the time of the trial and would receive an additional $100,000 after testifying. There was a clear incentive for the PA to convey the narrative that the appellant was already involved in trafficking and had initiated the importation scheme himself.
[59] The fact that $400,000 was being paid for bringing in a person who said he did not have drug contacts “down south” and therefore needed the PA to supply the drug dealers, and who ultimately did one transaction for $12,500, should have been the subject of serious consideration in the credibility and reliability analysis.
[60] While credibility findings by a trial judge are accorded significant deference by this court, they are not immune from review where the trial judge has failed to weigh and assess a witness’s overwhelming credibility issues. As the Supreme Court stated in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 82:
[U]nder a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.
[61] In this case, the trial judge took comfort from the fact that the PA was “adamant” in his testimony. Insofar as “adamant” indicates that the witness was “unshaken” or “unfailingly consistent with the evidence”, it could be a relevant consideration in a credibility analysis. However, the PA was not unshaken or unfailingly consistent.
[62] For example, the trial judge did not refer to the fact that, in his evidence in chief, the PA stated that he told the RCMP during his June 2018 interview that he had never done a drug deal with the appellant. He tried to back track later, stating that he had misunderstood the question, but this was a significant contradiction from his evidence that the appellant had brought him cocaine to sell in the months after the January meeting. It is trite law that a prior inconsistent statement is a potent factor in considering credibility: R. v. P. (G.), 31 O.R. (3d) 504 (C.A.), at para. 46. In this case, it went to the heart of the reasonable suspicion issue: whether there was evidence that the appellant was already a drug dealer before he met the PA.
[63] In addition, being adamant on the critical issue is wholly in keeping with lying to receive the $400,000 compensation. In that context, it does not follow that because he was adamant, what he said was the truth. In any event, the PA was a seasoned court witness and liar, a factor the trial judge did not consider when he relied on his adamance.
[64] To summarize, the trial judge had to address the credibility and reliability problems of the PA. He was an unsavoury witness whose testimony alone, unaccompanied by contemporaneous notes, text messages or other confirmatory evidence, was relied on to decide the key issue on entrapment. While the trial judge acknowledged that the PA had credibility problems, he failed to address how any of those problems were overcome in this case other than by the witness’s adamance in his testimony or by the finding of corroboration from the attitude of the appellant, which I turn to now.
The Finding of Corroboration in the Willingness of the Appellant over One Year Later
[65] Where a witness is of unsavoury character, a trier of fact is required to look at their testimony with caution and to look for confirmation or corroboration from an independent source. To be confirmatory, the evidence must be capable of giving comfort that the witness’s material evidence can be trusted: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 39-40.
[66] In this case, the confirmatory evidence relied on by the trial judge consisted of recorded conversations between the appellant and the PA after April 2019. Those recordings reflect that the appellant was familiar with drug culture and eager to proceed with the importing scheme to get the $12,500. The trial judge reasoned that that familiarity and eagerness, in the spring of 2019, confirmed the PA’s assertion that it was the appellant who initiated the conversation with him about importing drugs together in December 2017.
[67] There are a number of problems with this reasoning. First, the trial judge did not test this reasoning against the rest of the evidence before him. For example, he did not consider how likely it was that an airplane mechanic with a good job and no criminal record, would ask a person he hardly knew and had not seen in approximately 15 years about entering into an illegal scheme to import drugs. Versus how much more likely it was that a career drug dealer and informant, upon finding out that a person he came into contact with had access to planes at the airport, would try to talk that person into importing drugs at the airport.
[68] In addition, the trial judge did not address the fact that the appellant had been communicating with the PA about importing cocaine for a year after they agreed to try to do it, giving the appellant significant exposure to the drug culture and vernacular by then. Also by that time, the appellant had agreed to the scheme and was anticipating a payout. The fact that he was willing and eager in 2019 did not speak to who had initiated the scheme in 2017.
[69] The entrapment doctrine is designed to avoid punishing previously innocent people for failing to pass a random test of their virtue. Relying on the appellant’s attitude toward the importing scheme after it was already initiated, as the only confirmatory evidence that it was he who initiated it, turns the entrapment doctrine on its head. The question on an entrapment hearing is not how excitedly or emphatically the accused failed a random virtue test, but whether there was in fact a random virtue test in the first place.
[70] This was not a case, as in R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, where the trial judge’s reasons were sparse yet addressed the key issue. Here, the trial judge acknowledged the PA’s credibility issue in his reasons, but he failed to address how he reconciled it with his decision to accept that evidence as true.
Conclusion
[71] The purpose of the entrapment doctrine is to deter the police from enticing and virtue testing innocent people into committing crimes. That is an abuse of process.
[72] The appellant, a person with no criminal record, was recruited by the RCMP, through a police agent, to commit the offence of attempting to import cocaine into Canada for $12,500.
[73] The PA was a career criminal in drug and weapons crimes with a history of informing on other people in exchange for money and other advantages, including judicial immunity. He was an admitted liar who was paid the enormous sum of $400,000 plus $3,000 per month to implicate the appellant and others.
[74] The only evidence that the RCMP had reasonable suspicion that the appellant was already involved in criminal activity before they gave him the opportunity to commit the importing offense came from the PA, with no contemporaneous confirmatory evidence.
[75] The issue on the entrapment hearing was whether it was the appellant or the PA who proposed the idea of importing cocaine from Jamaica on planes. If it was the appellant, then the RCMP had reasonable suspicion that he was already involved in drug crime, allowing them to offer him the opportunity to commit the importing.
[76] The trial judge focused on his disbelief of the appellant and the fact that the appellant had the persuasive burden of proof. However, because there was an evidentiary onus on the Crown to establish the basis for their reasonable suspicion, and because that evidence came only from the PA, an extremely unsavoury and unreliable witness, it was incumbent on the trial judge to view the PA’s evidence with caution and to look for independent confirmatory evidence.
[77] I conclude that the trial judge’s assessment of the PA’s evidence was insufficient for him to conclude that the Crown had met its evidentiary burden. His assessment was perfunctory and failed to come to grips with the PA’s significant credibility problems. In particular, in the context of analyzing whether there was a possible abuse of process by the police through their agent, the fact that the PA was receiving over $400,000 to recruit the appellant is a shocking piece of evidence that had to be carefully considered in the analysis.
[78] I further conclude that the evidence of the appellant’s attitude and drug familiarity over a year after he and the PA were working together could not, on its own, constitute confirmation of the allegation that a year earlier it was the appellant and not the PA who initiated the importing scheme.
[79] I would therefore allow the appeal, quash the convictions, affirm the finding of guilt in the court below, and order a new trial limited to the issue of the appellant’s motion for a stay based on entrapment: see R. v. Pearson, [1998] 3 S.C.R. 620, at para. 16; R. v. Braithwaite, 2023 ONCA 180, at para. 12.
Released: March 18, 2024 “M.T.” “K. Feldman J.A.” “I agree. M. Tulloch C.J.O.” “I agree. P.J. Monahan J.A.”
Footnotes
[1] At trial, the officer was convicted of bribery; attempt to obstruct justice; criminal breach of trust; and trafficking cocaine. He has appealed his convictions to this court.
[2] The trial judge mistakenly recorded the year as 2018.
[3] At trial, although the Crown argued that the PA was not a police agent in 2018 when the importing scheme was discussed, the trial judge did not specifically address the issue in his reasons because the Crown did not put forth an alternative position that if the PA was the one who initiated the idea then it was before he was a police agent. In any event, the PA was continuously in contact with the OPP starting in 2018 on the basis that he would act at their behest in exchange for immunity and/or financial compensation.