Court Information

Information No.: 2811-998-11-13175-02

Ontario Court of Justice

Her Majesty the Queen v. Christopher Lewis

Before: The Honourable Justice P.L. Bellefontaine

Date: March 14, 2012

Location: Oshawa, Ontario

Appearances

L. Crawford – Counsel for the Crown

J. Mazin – Counsel for Christopher Lewis

Reasons for Judgment

BELLEFONTAINE, J. (Orally):

Charge and Legal Framework

Mr. Lewis is being charged with offering to transfer a firearm, namely a handgun, while not being authorized to do so, contrary to s. 99(1)(b) of the Criminal Code of Canada.

I have considered all of the evidence and all of the arguments in this matter. If I do not mention any particular piece of the evidence or any particular argument raised, it is not a reflection of my not having considered it.

The issues in this case are the credibility of the witnesses and whether Mr. Lewis's admitted offer to transfer a firearm was made seriously, such that it should attract criminal culpability, and also whether it was so devoid of particulars as to not amount to an offer in criminal law.

Credibility Analysis

As issues of credibility have arisen, I have applied the provisions of R. v. W.D., a Supreme Court of Canada decision, which sets out the approach that we are to take to credibility issues. It provides that if I believe your evidence, and it is effectively a complete denial of an essential element of the offence—that you intended your offer to be taken seriously—an acquittal would be appropriate. Even if I did not believe your evidence, I would have to go on to consider whether or not it raised a reasonable doubt. I think you can appreciate we often hear evidence which puts us in a position of not being certain as to what to believe, and if that uncertainty here created a reasonable doubt, I would give you the benefit of that and register an acquittal as well. It would only be if I rejected the defence evidence as there was clear evidence it was untruthful or unreliable that I would go on to the third step in R. v. W.D. and consider all of the un-rejected evidence in this matter to ensure there was evidence that I did accept that established your guilt on all of the charges before the court, beyond a reasonable doubt.

These are applications of our basic principles: that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt. That the burden rests on the Crown throughout to prove that guilt, and that there is a very high burden in a criminal case to establish your guilt, as required pursuant to R. v. Starr and R. v. Lifchus.

Procedural Background

By way of procedural background, I would note that in addition to the charge Mr. Lewis is on trial for, he has pled guilty to three counts of trafficking in cocaine, relating to four sales of cocaine to undercover police officer in the amount of 3.5 grams, 7 grams, 1/4 ounce, and 1 ounce.

The charge before the court relates to an offer to obtain a handgun for the same undercover officer, Detective Palmer.

At the conclusion of the evidence and argument, counsel asked that I provide my decision without reasons, and if a finding of guilt was made, hear further argument on a defence application to stay the proceedings based on an allegation that the officer has brought about the events by the officer through entrapment. Counsel were advised of my decision that a finding of guilt would be made for reasons to follow, and the entrapment issue has been argued.

These are my reasons for the finding of guilt and as well my decision for rejecting the defence argument on entrapment.

Facts

The offer to sell flows out of drug dealings between undercover Officer Palmer and Mr. Lewis. As a result of information received that Mr. Lewis was trafficking cocaine, Officer Palmer contacted him and arranged a purchase of 3.5 grams of cocaine for the officer to resell. Mr. Lewis was anxious to continue selling to the officer, and a further 7 grams was sold later the same day. The officer arranged to meet Mr. Lewis the following day to discuss doing more and larger drug sales. During the course of the conversation, Mr. Lewis admittedly stated he could get the officer a four fifths, meaning a 45 calibre handgun for $2,500.00, and he would look into it for the officer. Ongoing drug discussions and transactions took place interspersed with further discussions about transferring a gun to the officer, some of which are admitted by Mr. Lewis, but in much vaguer terms, relative to what Detective Palmer testifies was said by Mr. Lewis.

The position of the Crown is that a clear and sincere offer to obtain the handgun was made by Mr. Lewis, in an effort to make money for himself and to encourage the undercover officer, Detective Palmer, to maintain a business relationship with Mr. Lewis as a cocaine purchaser.

The defence disputes a number of the facts that are said to amount to an offer and submit the offer was never a serious one and was so devoid of particulars as to have the discussions amount to no offer at all.

Assessment of Evidence

I am prepared to accept Mr. Lewis's evidence that he never had access to a gun to sell and never had any intention to carry through with any offer to transfer the firearm. His evidence, in this regard, is supported by the fact that no transaction ever took place, notwithstanding a significant period of time and a significant number of opportunities to deliver the handgun. As well, his descriptions of the available guns, which varied over the course of the proceedings, even on the officer's evidence, further support this. The number of varied excuses given for the sale falling apart are consistent with Mr. Lewis's evidence that he was fabricating stories to lead the officer on in the belief that the failure of the transactions were beyond Mr. Lewis's control.

It is also significant that Mr. Lewis, who was otherwise readily available, would not respond to the officer when the scheduled deliveries were to take place.

As I say, I am prepared, accordingly, to find that Mr. Lewis never intended to carry through with the offer to sell.

Legal Standard for the Offence

It has to be noted, however, that no intention to carry through with the offer is a required element of the offence that needs to be proven by the Crown. As stated by our Court of Appeal in the comparable drug context in R. v. Murdoch, reported at 2003, Ontario Judgments Number 2470, at paragraph 9:

"Provincial Appellant Courts have repeatedly held that where an accused is charged with trafficking by offer, the Crown is not required to prove the accused actually intended to go through with the offer and sell, or otherwise provide the offered narcotic."

And further, at paragraph 14:

"The offence of trafficking by offer is made out if the accused offers to traffic in a narcotic, that is the actus reus of the offence, and secondly intends to make an offer that will be taken as a genuine offer by the recipient, which is the required mental element for the offence."

Accordingly, even accepting Mr. Lewis's evidence that he did not intend to follow through with the offer, it is not a defence to the charge.

Credibility Findings

To the extent Mr. Lewis's evidence is to the effect that he did not intend his offer to be taken seriously as a genuine offer, I am obligated to reject it. His evidence in this regard must be considered in light of the stated purpose in making the offer, which was to keep the officer using Mr. Lewis as his drug supplier. For example, Mr. Lewis testified: "I did not want him to think I was lying" (that is about the transfer of the gun). "I did not want him to think I could not deliver the drugs." At another point, he acknowledges that he told the officer his friend was bringing in three guns. "In my head I knew they were not coming, but I said so to keep him calling me for the ounce," referring to the ounce of cocaine they were arranging the sale of.

In addition, he testified that he told the officer he did not really deal in guns, which the officer supports, but he made the statements he did to the officer to keep him interested and at a later point again he said he would look into the gun for the officer to keep him interested in "me," referring to him as a drug supplier.

Mr. Lewis was obviously proud of the quality of the cocaine he was distributing and his business acumen at growing his business quickly. He was boastful of the quantities of drugs he was distributing and anxious to be an aggressive and effective sales person. The offers he made to transfer a gun to the officer were to keep the officer interested in him as his drug supplier and to continue dealing with Mr. Lewis. It only makes sense, in this context, that Mr. Lewis would intend, as he has testified, that the officer consider the offer to be genuine.

Other evidence, as well, supports Mr. Lewis's intention that the officer consider the offer to have been a serious and genuine one. Mr. Lewis agrees that after the initial discussions of obtaining the guns, the officer said he would cancel a trip to Kingston if Mr. Lewis could sell a gun to him. Allowing the officer to change his plans in this environment and for that to occur again supports an intention existing in Mr. Lewis's mind that his offer be taken seriously by the officer.

As well, the admitted conversations about how to physically hand over the gun support Mr. Lewis's continuing his efforts to have the officer believe the transfer of the handgun was real and imminent.

Lack of Particularity Argument

The defence have submitted that a doubt is raised as to whether a serious offer was intended by virtue of the lack of particularity of the type of gun Mr. Lewis admits to speaking of. To the extent Mr. Lewis's evidence is inconsistent with the officer's on details of the guns discussed, I reject Mr. Lewis's evidence as being unreliable and not credible. Mr. Lewis made no notes of the conversations and was not aware of the significance of them until after his arrest, which was over two months after some of the key conversations. He also had a busy trafficking operation that he states had him dealing with a large number of people on a regular basis, further reducing the likelihood of him recalling specifics of the conversations. I found him to be overlooking calls and interactions in his evidence and having to reconstruct these interactions in a manner that raises doubts about his true memory of these events. He, as well, has admitted his poor recollection during his evidence. Additionally, I accept his evidence that he was fabricating the stories to the officer about the guns, putting him at the disadvantage of not having real facts to base his memory on.

There are further problems with Mr. Lewis's credibility that cumulatively cause me to reject his evidence. His evidence that he was fearful of being assaulted during the course of the one ounce sale of cocaine makes no sense when the fear would only have arisen after he gave Detective Palmer the drugs and Palmer drove off to a relatively isolated mall. At this point, Palmer had both the drugs and the cash and no need to be assaulting Mr. Lewis to get anything. As well, Mr. Lewis's ready use of gun terminology supports the conclusion that Mr. Lewis was minimizing his knowledge of guns to distance himself from the officer's evidence about the details of what was said.

Officer Palmer, in contrast, was making notes shortly after each contact and clearly became quickly focused on the serious issue of getting handguns away from the criminal element, if he could do so. The serious nature of the gun conversation would increase the likelihood that he would be reasonably accurately able to record it when he did so, after the interactions. The officer, as well, has no motive to fabricate the gun allegation. Mr. Lewis's eagerness to sell increasingly large quantities of cocaine and at a significant level means there was little to gain for the officer to fabricate a difficult to prove offer to sell a firearm, if Mr. Lewis's presentations with respect to the guns were such that the discussions were unlikely to be followed up on.

Significantly, Mr. Lewis acknowledges the key parts of Officer Palmer's evidence but denies the details related to it that make the offer a credible one. But the believability of that sales pitch was essential to keeping Officer Palmer on the hook, to use Mr. Lewis's terminology, as a drug purchaser, and it makes no sense that he would have left out the details that support the believability of his offer.

Officer Palmer's Credibility

The defence have attacked Officer Palmer's credibility on the basis of him downplaying his anger when the transactions did not materialize. Particularly, one of his text messages, "I don't like the way you are dealing with this," followed by an exclamation mark, is relied upon as being inconsistent with his testimony. I do not view this point to raise a reasonable doubt about the officer's evidence. He did acknowledge expressing disappointment to Mr. Lewis and, pointing out that it would have been out of character for him not to do so, given the role that he was playing. As well, his text message following Mr. Lewis's explanation for the delivery of the firearm falling apart was cool, which is consistent with the level of disappointment that the detective has been testifying to.

I am mindful, as well, of the doubt that may be raised by virtue of the upset that would ultimately flow from the failed promises to deliver a gun. Presumably, at some point Mr. Lewis's lies would catch up with him, leading to an unhappy customer who might go somewhere else for their drugs. This does not, however, raise a doubt about the details of the officer's evidence. That lack of logic exists equally on Mr. Lewis's own evidence. That is, the same upset would be created by his watered down promises to transfer the firearm that he hoped the officer would rely on. Both versions can equally be explained by Mr. Lewis being focused on getting the next bigger sale of drugs and being prepared to risk the problems associated with the non-delivery of the gun that would occur down the road.

On another point, I do not consider the time pressure created by his having his girlfriend waiting during the May 4th sale of cocaine and the drug sale conversation that took place to be an impediment that raises a doubt about the extra detail that's been testified to by the officer, that he says was being provided during that conversation to supplement the initial conversation.

Finding on the Offer

I am satisfied beyond a reasonable doubt that Mr. Lewis told Palmer during the sale of the cocaine on May 4th that the other thing was good for Friday, for sure. That it was a Smith and Wesson, P90, with two boxes of ammunition and clips with 10 rounds, for $2,500.00, and that Mr. Lewis was prepared to take $100.00 or $200.00 for his cut.

To be clear, I am satisfied beyond a reasonable doubt that Mr. Lewis intended to make an offer that would be taken as a genuine offer by the undercover officer and that sufficient detail was provided to support his intention to communicate an offer that was to be taken seriously and that the detail provided was sufficient to establish the actus reus of the offence.

As I indicated to counsel previously, there will be a finding of guilt on this charge.

Entrapment Analysis

Given that finding, the defence have argued that a stay of proceedings should be granted. The burden rests on the defence to prove on a balance of probabilities that an abuse of process has occurred, such that a stay should be granted. The parameters of the doctrine of entrapment have been articulated in R. v. Mack, 1988 Supreme Court of Canada Judgments Number 91, at paragraph 26. They state there, there is entrapment when:

"...the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and (b) although having such 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."

The parameters for the second test are set out at paragraph 129 of the decision. The Court there states:

"The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will, however, never justify entrapment techniques: the police may not go beyond providing an opportunity regardless of their perception of the accused's character and regardless of the existence of an honest inquiry."

To determine whether the police have employed means which go further than providing an opportunity, it is useful to consider any or all of the following factors:

"...the type of crime being investigated and the availability of other techniques for the police detection of its commission; whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime; the persistence and number of attempts made by the police before the accused agreed to committing the offence; the type of inducement used by the police including: deceit, fraud, trickery or reward; the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; the existence of any threats, implied or express, made to the accused by the police or their agents; and whether the police conduct is directed at undermining other constitutional values."

Threshold Issue

The threshold issue, pursuant to the Supreme Court of Canada decision, is whether Detective Palmer created an opportunity for Mr. Lewis to commit the offence of offering to traffic a firearm at a point when he had no reasonable suspicion that Mr. Lewis was already engaged in criminal activity.

Given my view of the evidence, I need not decide whether the offer to traffic in guns is rationally connected and proportional to the sale of cocaine to support a reasonable suspicion.

For the reasons given for rejecting Mr. Lewis's evidence, I am satisfied that it was he, and not Detective Palmer, who first raised the issue of obtaining a firearm for the detective. I specifically reject his evidence that Detective Palmer made the gun sign at the bar in an effort to induce Mr. Lewis to raise the issue or follow up on the issue of a gun and asked Mr. Lewis if he could help him—that is, as Mr. Lewis articulated it, to get some protection for him.

In addition to the earlier reasons for rejecting Mr. Lewis's evidence, I would note, specifically on this point, the inconsistency in Mr. Lewis's evidence that the officer asked Mr. Lewis for help to get some protection for the officer and Mr. Lewis's stated impression from the conversation that the officer was already in the business of selling guns. If Palmer was already selling guns, it would make no sense that he would need to be asking Mr. Lewis for a gun for the officer's protection. Mr. Lewis also testified that the officer wanted a clean gun, which supports the officer's evidence that he said during the conversation that he had a gun but wanted a clean one and goes against Mr. Lewis's evidence that the officer raised a need for a gun for his personal protection. Obviously, already having a gun, even if a dirty one, would mean that there was no pressing need for his personal protection to get a further clean gun from Mr. Lewis.

Raising the issue of how Mr. Lewis would come in from out of town and not be running afoul of pre-existing traffickers, whose business he would be encroaching on by his substantial drug dealing, would be a natural part of the discussions that were taking place, and I do not view them as being designed to entrap Mr. Lewis.

I am not satisfied that the firearm issue was raised by the officer, and I accept the officer's evidence that it was Mr. Lewis who raised the offer to get a firearm. I similarly am satisfied that the officer did not go beyond permissible bounds to follow up on Mr. Lewis's offer to get a gun. Mr. Lewis's own evidence supports that the key initial and May 4th offers were made by him to keep the officer interested in him as a drug supplier and to "keep him on the hook." Mr. Lewis's exuberance at selling his product and keeping the officer on the hook generated the initial offer with no action by the officer, and the May 4th offer was not made by any disproportionate actions by the police following up on the initial discussions.

I do not view the impugned conduct taking place following the key initial offers to raise a doubt about how the initial offer arose. While the officer's contacts do increase in number as follow ups and failed deliveries occur, they are not at a level that go beyond a natural part of the necessary undercover narrative, and in my view, are not the type of pressing and persistent contacts that would support a finding of entrapment. In my view, the officer did not go beyond providing an opportunity for Mr. Lewis to commit the offence in question, and accordingly, the defence application for a stay is dismissed.

Sentencing Adjournment

With respect to sentencing, Mr. Mazin, were you planning on dealing with that today, and are there constitutional issues arising as a result of some more recent case law?

MR. MAZIN: Yes, Your Honour. That's where I was going. That being the case, I would ask for an adjournment in order to prepare such an application and to provide my friend with the adequate notice.

THE COURT: Thank you. And Madam Crown, I'm happy to take a break to allow some time to schedule that.

MS. CRAWFORD: Yes. Thank you.

THE COURT: And, Mr. Lewis, we'll just hold the matter down, Sir. We'll try to get back to you as quickly as we can, Sir. Thank you.

MATTER HELD DOWN

MATTER RESUMED

MS. CRAWFORD: Thank you for the indulgence, Your Honour. We were able to attend at the trial coordinator's office and locate a date in May – actually May 25th, 2012, in courtroom number 406, for 4 hours. We thought that that should be adequate time.

THE COURT: Yes, thank you.

MS. CRAWFORD: And also adequate time in between now and then for the defence to file materials and serve the appropriate parties, which would include not only myself, but likely the Attorney General of Ontario and perhaps Canada, on this particular issue, and then also have response from all parties who wish to.

THE COURT: Yes, thank you. And that date's agreeable with yourself as well, Mr. Mazin?

MR. MAZIN: Yes, Your Honour.

THE COURT: Thank you. Mr. Lewis, we'll put this matter over to the 25th day of May, year 2012. It will be courtroom number 406, which is in this building here at 150 Bond Street East, in the City of Oshawa. We'll set the matter for nine thirty and marked for sentence at that time, Sir. Okay, thank you.

MS. CRAWFORD: Thank you, Your Honour.

MATTER ADJOURNED