Court of Appeal for Ontario

Date: July 9, 2025
Docket: C70529
Coram: Roberts, Pomerance and Rahman JJ.A.

Between:
His Majesty the King (Respondent)
and
Deepan Budlakoti (Appellant)

Appearances:
Ian Kasper, for the appellant
Katie Doherty and Owen Goddard, for the respondent

Heard: June 9, 2025

On appeal from the conviction entered on December 15, 2020, by Justice Marc R. Labrosse of the Superior Court of Justice.

Pomerance J.A.:

Introduction

[1] The appellant sold several firearms to a man he met in jail. Unbeknownst to the appellant, that man had become a police agent for the Ontario Provincial Police (the “OPP”). At trial, the appellant conceded his guilt on 18 of 19 counts, but argued that he had been entrapped by the police agent, who induced him to commit the crimes. He testified that the agent’s persistent and implicitly threatening behaviour left him no choice but to sell him the firearms. The trial judge disagreed. He rejected the appellant’s testimony and found that he was a willing participant in the transactions.

[2] The appellant alleges three errors. He says that the trial judge erred in:

1. relying on a hearsay statement for the truth of its contents;
2. failing to consider the agent’s financial motive; and
3. failing to adequately scrutinize the police agent’s credibility as a Vetrovec witness. [2]

[3] The trial judge did not err in any of these respects. I will deal with each argument in turn.

A. The Hearsay Statement

(1) Background

[4] The appellant first met the police agent while they were both serving jail sentences in Gatineau, Quebec. According to the police agent, during that time, the appellant said that he could provide him with firearms after they were released. The agent shared this information with the police, and the appellant became a target of “Project Landslide”, a project run by the OPP.

[5] At the direction of his police handlers, and under their supervision, the agent set out to contact the appellant. He enlisted the assistance of another man, Kenemy, who was known to police as a drug dealer. The agent gave Kenemy his phone number, and asked Kenemy to give it to appellant.

[6] The police agent testified that Kenemy told him that the appellant did not want to speak with him. He said that Kenemy told him that the appellant said that the agent was “too hot”, given his connection to bikers and the likelihood that he was under police surveillance. I will refer to this as the “too hot” statement, or “the statement”. It is at the heart of this ground of appeal.

[7] The Crown initially introduced the “too hot” statement at trial. The Crown advised that it was not tendering the statement for its truth, but rather to demonstrate what the police knew about the appellant. The statement later became part of the evidentiary record at the entrapment hearing.

(2) The Alleged Error

[8] The appellant argues that the trial judge improperly relied on the truth of the “too hot” statement to conclude that the police agent had not entrapped the appellant.

[9] The appellant testified that he did not want to sell the PA firearms but felt “stuck in a corner” with no way out. He said that these feelings were prompted by, among other things, his knowledge of the police agent’s history of violence. The trial judge rejected the appellant’s testimony on several grounds, including the “too hot” statement. He reasoned that the appellant’s “reluctance to communicate” arose not from “an inability or unwillingness to perform the requested task”, but because “he was afraid of being caught dealing with the [police agent] whom he thought was ‘too hot’ given his ties to bikers”.

(3) Analysis

[10] Hearsay evidence is presumptively inadmissible for its truth: R. v. Khelawon, 2006 SCC 57, para 2. Double hearsay, like the “too hot” statement, is no exception. The police agent was reporting what Kenemy told him about what the appellant allegedly said. The statement of the accused was itself admissible as a party admission, a “well-recognized exception to the hearsay rule”: R. v. Couture, 2007 SCC 28, para 75. However, the police agent’s testimony about what someone else reported about what the accused said clearly engages the traditional hearsay dangers.

[11] While the statement was presumptively inadmissible for its truth, the trial judge’s reasons must be evaluated against the dynamic of the hearing itself, and the positions taken by the parties. Doing so reveals that the trial judge made no error in relying on the statement.

[12] Of particular import is the position taken by the defence. The appellant did not take issue with the admissibility of the “too hot” statement at the entrapment hearing. Of course, it was not originally tendered for its truth. But as the hearing unfolded, there occurred an unspoken yet discernable shift in the use that the appellant sought to make of the statement. Not only did he not object to use of the statement for its truth, but he relied on it in support of his entrapment defence.

[13] While cross-examining the police agent, the appellant’s trial counsel asked the agent to confirm that Kenemy had told him that the appellant thought that he was too hot. The following exchange took place:

Defence counsel: And, and what you, and that, I — and what you, you contact Kenemy and you say, 'Why didn't Deepan get back to me?' And that's when he tells you that Deepan was upset about you having his number, right?
Agent: Yes.
Defence counsel: And the conversation went on with Kenemy, and it was about you, you were, you were too hot.
Agent: Hot, yes.
Defence counsel: And you were tied up with bikers and...
Agent: Yes.
Defence counsel: ... he didn't want anything to do with that, right? …
Agent: Yes.

[14] During the above exchange, counsel for the appellant relied on the statement for its truth—for the fact that the appellant “didn’t want anything to do with” the police agent. When the appellant testified, he was not asked any questions about the statement. He did not adopt it but nor did he seek to distance himself from the remark. This is undoubtedly because the statement, if accepted for its truth, potentially supported the defence position.

[15] Recall that the appellant insisted that he did not wish to do business with the police agent. While he claimed that the reason for his reluctance was fear, the “too hot” statement, if accepted, offered another reason that he would avoid dealing with the agent. The two reasons were not necessarily inconsistent. It was conceivable that the appellant wanted nothing to do with the agent both because he was afraid of him, and because he perceived that the agent was under police surveillance.

[16] Accordingly, it was to the appellant’s advantage to have the statement considered for its truth. While the matter was not expressly addressed, the appellant effectively acquiesced to the statement being used to reflect his state of mind at the relevant time. It was not an error for the trial judge to use the statement in the very manner that the appellant contemplated: R. v. Radassao.

[17] It appears that the appellant’s acquiescence was also a function of other evidence led on the entrapment hearing. The early communications between the appellant and the police agent only made sense if the appellant actually told Kenemy that the agent was “too hot”. After various unsuccessful attempts to contact the appellant, the police agent sent a text saying:

Yo bro come on bro the old man told me the reason why you did not want to see me 1 im a one man show 2 im in Ottawa by the way gravel phone my parents house ?????? [emphasis added]

[18] The statement “im a one man show” appears to be a direct response to the appellant’s concern that the agent was linked to bikers and likely under surveillance. During the exchange, the appellant did not express confusion over what this meant. No doubt, he understood the “one man show” statement to be a direct and logical response to “the reason why you did not want to see me”. The appellant understood that the police agent was trying to assuage his concern that he was “too hot”.

[19] I do not suggest that the agent’s “one man show” statement corroborated the truth of the “too hot” statement. This is not a situation, as in R. v. Bradshaw, 2017 SCC 35, where a piece of evidence is being used to confirm the truth of a hearsay utterance. The issue here is not corroboration, but rather, the parties’ understanding of the narrative of events. The “too hot” statement was part of the context. It explained what the agent said to the appellant and why he said it. Both the Crown and defence understood that it was what prompted the reference to a “one man show”. It is difficult to imagine what else the agent might have been speaking about or responding to. Again, this was not expressly stated, but it was the subtext for the positions taken by the parties during the entrapment hearing.

[20] To be sure, it would have been preferable if there had been express discussion of the use to be made of the “too hot” statement. The parties did not address the shifting use directly, and the trial judge made no ruling on it. However, the trial judge was plainly aware that the statement was hearsay. He acknowledged as much in his reasons, but observed that there was no meaningful dispute about the statement’s content. As he put it:

In the beginning, the [appellant] is ignoring the Police Agent and not returning his text messages. Further, he tells Mr. Kenemy that he does not want to meet the Police Agent because he is too “hot”, and this is clearly a reference to a concern about getting caught and not an unwillingness to participate. Although this information is hearsay from Mr. Kenemy, it is consistent with the position of the [appellant] who did not want to communicate with the Police Agent at the time of Mr. Kenemy’s involvement. There was no dispute by the parties that Mr. Kenemy would have said that the Police Agent was too hot because of his connection to bikers; [Emphasis added].

[21] While, in the above passage, the trial judge acknowledged that the too hot statement was “consistent with the position of the [appellant]”, he ultimately saw it as contradicting the appellant’s account. He found that the appellant’s initial reluctance to engage was not rooted in fear, but in a concern about police surveillance. It was open to the trial judge to make that finding. Once the statement melded into the stream of evidence, it was for the trial judge to determine which, if any, inferences were to be drawn from it.

[22] Finally, and in any event, the reasons as a whole disclose that the “too hot” statement played only a peripheral role in the trial judge’s reasons for rejecting entrapment. The trial judge wholly rejected the appellant’s testimony. Having done so, there was no evidentiary basis upon which to conclude that the appellant had been induced to commit the crimes. The evidence as a whole portrayed him as a willing and eager participant in the scheme. He was quick to sell the agent a firearm at their first meeting and continued to actively engage in the transactions.

[23] The trial judge’s reasons are replete with findings to that effect. He explained that “[t]here is simply no support in the evidence that the manner in which the Police Agent approached the [appellant] would have induced the average person to act as the [appellant] did, having gone out to purchase a firearm in advance of even the first meeting” (emphasis added). And the appellant continued that behaviour beyond their first meeting: “subsequent transactions and communications demonstrate a willingness to participate in the transactions without any attempts to either limit his involvement or get out after having initially appeased the Police Agent after the first purchase”.

[24] Later, the trial judge rejected the suggestion that the police agent relentlessly pursued the appellant. “To the contrary”, he explained, their communications show that “it was in large part the [appellant] who was persistent in keeping the Police Agent involved in the subsequent transactions”. The appellant “would brag about his ability to supply more firearms to the Police Agent”, and “[a]t no time did he even attempt to distance himself from the Police Agent and bring an end to their transactions”.

[25] As these various findings show, the “too hot statement” was but a small brick in a formidable wall of evidence rebutting the appellant’s claim.

[26] I would dismiss this ground of appeal.

B. The Agent’s Financial Motive

[27] The appellant argues that the trial judge failed to adequately consider the agent’s financial motive. The agent stood to earn $700,000 from the operation. The appellant says that the trial judge ought to have seen the financial motive as corroborating the appellant’s testimony about the agent’s persistence.

[28] I see no error in the trial judge’s treatment of the financial motive.

[29] The trial judge was aware of the agent’s financial motive, as reflected in the following passage:

In the weeks following the Police Agent’s release from the Val-Tétreau jail, he approached the OPP as an informant and provided information including his belief that the [appellant] was involved in the trafficking of firearms. By February 2017, the Police Agent was being considered as a Police Agent. Part of his motivation was financial, and this was reflected in the SPA which sets out that the Police Agent stood to earn approximately $700,000 from his participation as a police agent.

[30] The appellant complains that this passage is inadequate. He contends that the trial judge was merely summarizing the evidence, and did not give full weight to the agent’s financial motive. I disagree. The trial judge was not required to repeat this evidence as proof that he considered it. It was an obviously relevant consideration in evaluating the evidence on the entrapment hearing, and there is every reason to believe that the trial judge considered it in that context.

[31] The appellant testified that the officers running the project did not capture several “off-line” communications from the police agent. He testified that the agent harassed and threatened him in messages that were not introduced into evidence. The trial judge rejected this testimony as wholly incredible. It was open to him to do so, notwithstanding the agent’s financial motive. That motive potentially cut both ways. It could well have prompted the agent to scrupulously follow his handlers’ orders, for fear that he might otherwise forfeit his compensation.

[32] In sum, this is not a basis for appellate intervention.

C. Vetrovec

[33] Finally, the appellant argues that the trial judge erred in failing to treat the police agent as a Vetrovec witness, given his history of criminality and violence. This too must be rejected as a ground of appeal.

[34] First, it is not clear that the strictures of Vetrovec apply with full force to this context. Vetrovec is concerned with situations in which the Crown calls an unsavoury witness to prove a crime beyond a reasonable doubt: R. v. Sauvé, para 76. Generally speaking, where proof of an offence hinges on the testimony of such a witness, the trier of fact should exercise caution, and look for confirmatory evidence, before reaching a verdict of guilt: R. v. Khela, 2009 SCC 4, para 11.

[35] The situation in this case is different. The appellant bore the burden to prove entrapment on a balance of probabilities. The Crown did not lead the agent’s evidence to prove a crime, but rather, to rebut proof of a defence. Thus, the traditional Vetrovec framework may not strictly apply.

[36] That said, the police agent’s criminal antecedents and history of violence were obviously relevant to the assessment of his credibility. The trial judge expressly adverted to the factors that detracted from the agent’s truthfulness: his “extensive history of drug dealing, collecting debts and other criminal activity associated with drugs and firearms trafficking offences”, as well as the agent’s longstanding mental health issues. He cautioned himself that these factors raised “serious questions about the reliability of [the police agent’s] evidence where such evidence cannot be otherwise corroborated”.

[37] Thus, the trial judge considered all of the relevant circumstances: the police agent’s unsavoury past, his history of offences, as well as the strict controls that were placed on him by his police handlers. He rejected some aspects of the agent’s testimony, and was cautious about those areas that he did accept. It cannot be said that the trial judge viewed this witness through anything approximating rose-coloured glasses. This ground of appeal must also fail.

[38] For all of these reasons, I would dismiss the appeal.

Released: July 9, 2025

“R. Pomerance J.A.”
“I agree. L.B. Roberts J.A.”
“I agree. M. Rahman J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.5 of the Criminal Code, RSC 1985, c C-46.

[2] See Vetrovec v. The Queen.