Court File and Parties

Ontario Court of Justice

Date: January 13, 2017

Court File No.: Ottawa 15-F5432

Between:

Her Majesty the Queen

— and —

Darius Joash Louis

Before: Justice P. K. Doody

Heard on: December 22, 2016

Reasons for Judgment on entrapment application released on: January 13, 2017

Counsel:

• Simon Pelletier, counsel for the Crown
• Natasha Calvinho, counsel for the accused

Judgment

P.K. Doody J.:

Part 1: Overview

[1] On August 19, 2016 I found the defendant guilty on 10 charges as a result of his involvement in two sales of crack cocaine to undercover officers - two counts of trafficking contrary to s. 5(1) of the Controlled Drugs and Substances Act and two counts each of: possession of twenty dollars knowing it to have been obtained by the offence of trafficking (s. 355(b)), failing to comply with an undertaking given in a promise to appear to not possess any Controlled Drugs and Substances Act substance (s. 145(5.1)), failing to comply with an undertaking given in a promise to appear to keep the peace and be of good behaviour (s. 145(5.1)), and breach of the terms of probation to keep the peace and be of good behaviour (s. 733.1(1)).

[2] At the beginning of the trial, defence counsel, Ms. Calvinho, had indicated that there were defences to the charges and that if, after trial, I had made a finding of guilt, she would be bringing applications to stay the proceedings on the basis that her client had been entrapped by the police into committing the offences. At the end of the trial, she acknowledged that it would be proper for me to make a finding of guilt on each of the charges, but that she would be proceeding with the entrapment application on all counts after my findings of guilt had been made. I proceeded to make findings of fact and found the defendant guilty on each count. Those reasons, as I have indicated, were given on August 19, 2016. A date was set for hearing the entrapment application, including further evidence if necessary.

[3] After that date was set, Ms. Calvinho advised that she would be confining her entrapment submissions to the first count of trafficking and the other four charges which flowed from that count. She conceded that there was not a basis for a finding that the police had entrapped the defendant into committing the second count of trafficking.

[4] On December 22, 2016 the entrapment application proceeded.

Part 2: The Facts

(a) Found following trial

[5] I made the following factual findings at the conclusion of the trial.

[6] On March 5, 2015 Constable Jennie Campbell was part of a team of undercover officers operating in the "market area" of Ottawa. This area has, for a long time, been the subject of a large number of complaints of drugs being sold and used. The officers hoped to purchase illegal drugs from persons in the area. They did not have any particular persons they were targeting – their objective was to make a "cold approach" to anyone who might sell them drugs. They had no prior information that the defendant was selling drugs on that day. Constable Campbell's role was to walk around the market area and try to purchase crack cocaine for $20.

[7] She walked around the market area and approached the Shepherds of Good Hope shelter for homeless persons at 230 Murray Street. She saw a person named Dave Whitlock, from whom she had purchased drugs on a previous undercover operation, and asked him "hey have you got any hard?" "Hard" is a street term for crack cocaine. Mr. Whitlock was standing with the defendant. They were close enough to each other that Cst. Campbell got the impression they were interacting. Mr. Whitlock asked how much she had, and she replied "$20". He then went into the shelter, leaving Cst. Campbell with the defendant on the street outside. After a short time had passed, Cst. Campbell asked the defendant if Mr. Whitlock was going to return. He responded "Yah don't worry baby girl." She introduced herself as Jennie and he told her that his name was "D". She asked him if he was always down there, and he replied that he was.

[8] After five minutes had passed, she asked the defendant what was taking Mr. Whitlock so long, and asked him if they could go somewhere else. The two of them left without Mr. Whitlock and walked down the street. A few minutes later Mr. Whitlock caught up with them. He did not give her any drugs at that time. Cst. Campbell asked where they were going and the defendant replied "the Sally". The Salvation Army operates a homeless shelter at 171 George Street, within a few blocks of the Shepherds of Good Hope shelter. Cst. Campbell left the defendant and Mr. Whitlock, saying that she had to meet "her boy".

[9] She walked around the area and then encountered the defendant again. He was walking eastbound on York Street, close to King Edward at a location about halfway between the two shelters. Mr. Whitlock was not with him. Thinking that he was attempting to locate her to sell her drugs, she asked him "hey you got it?" He replied "no, I got to find my guy." She responded "hey you are pretty cool I like you" and he replied "I can't go far because my guy is around and I can't lose his money." The defendant told Cst. Campbell "don't worry, just relax".

[10] The two of them then walked up George Street. Cst. Campbell said "you just go – I will meet you." The defendant asked her if she wanted him to talk to her "boy" who she had said she had to meet, and she said that was not necessary. The defendant continued along George Street to the Salvation Army shelter, where she saw him standing with Mr. Whitlock. She went up to them and asked "are we good?" The defendant replied that he could not find his "guy" and suggested that they go see his "girl". Cst. Campbell asked if his girl would be okay with her, and the defendant responded "sure baby girl."

[11] Cst. Campbell then walked with the defendant to Rideau Street, where they met a woman described by the defendant as his girlfriend. She was sitting outside the doors of the Bay store, panhandling. The defendant spoke briefly with a young male outside the doors to the Bay about 7 to 10 feet from Cst. Campbell. They were speaking at a low volume so Cst. Campbell could not hear what they were saying. The young male looked over at Cst. Campbell and nodded in her direction. The defendant then said to her "give me your 20". Cst. Campbell responded "what are you going to rip me?" He said "look at me I don't do that." She handed him a $20 bill. The defendant then walked away with the young male, who said to Cst. Campbell "don't worry he will be back."

[12] The defendant returned about a minute later, at 4:37 pm, and dropped a loose rock of what appeared to be crack cocaine into the palm of Cst. Campbell's hand from the palm of his hand. It was not wrapped. She testified that it was a small rock, estimating its size to be the space between four fingers pressed tightly together – not as large as a green pea but larger than coarse salt. She put it into the right hand coin pocket of her jeans. Later, she gave it to a fellow officer. It was analyzed and determined to be cocaine. $20 should buy, on the street, .2 grams of crack cocaine. Cst. Campbell estimated that she had received less than .2 grams so did not get her full money's worth, as was often the case. It was weighed and determined to be .1 gram. After analysis, some of the substance remained and was entered as an exhibit.

(b) From other trial evidence

[13] Cst. Campbell testified that she attended the briefing run by Det. Cst. Danick Paiement, the officer in charge. The team was told that their target area was the "general market area". She intended to go to the area of the Salvation Army shelter at 171 George St. I accept this evidence.

(c) From evidence called on the application

[14] Crown counsel, Mr. Pelletier, called one witness, Det. Cst. Paiement, on the application. He has 14 years of experience as an Ottawa police officer and has served in the street crime unit on a part time basis from 2007 to 2010 and full time since then. He has taken part in what he estimates to be over 1,000 drug investigations. His evidence allows me to make the following findings of fact. I note that he was not cross-examined on any of the facts set out below, and there was no evidence to the contrary.

[15] A significant amount of open drug dealing takes place in the By Ward market area of Ottawa, an area bounded by Rideau St., King Edward Avenue, the Ottawa River and Sussex Drive. Drug dealers "hang around" this area and their sales can be openly observed. The police frequently get complaints about this from residents and businesses in this area. There are approximately forty city blocks in the area as delineated by Det. Cst. Paiement.

[16] Drug dealing is particularly congregated in the parking lot just west of the Salvation Army shelter at 171 George Street, the Shepherds of Good Hope shelter at the corner of King Edward and Murray, the Waller Mall between Rideau Street and George Street, and on Rideau Street itself. These locations are in an area in the southeast section of the "market area" which is approximately one third of the "market area" as described by Det. Cst. Paiement, bordered by the southern and eastern edges (Rideau Street and King Edward Avenue). All of the interactions between Cst. Campbell and the defendant took place in that area.

Part 3: The Law

(a) Generally

[17] The defence of entrapment is available when the defendant establishes, on the balance of probabilities, that

(a) the authorities have provided 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, or

(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.

(R. v. Mack, [1988] 2 S.C.R. 903 at pp. 964-5)

[18] Where entrapment is found to have occurred, a stay of proceedings should be entered only in the "clearest of cases".

(Mack at pp. 976-7, R. v. Pearson, [1998] 3 S.C.R. 620 at p. 626)

[19] The defence does not submit that the police induced the commission of an offence in this case. Rather, the submission is that the police neither

(a) had a reasonable suspicion that the defendant was engaged in drug trafficking; nor

(b) were engaged in a bona fide inquiry

when they provided him with an opportunity to commit the crime.

(b) Reasonable suspicion defined

There is a distinction between a reasonable suspicion of a certain fact and reasonable and probable grounds to believe that fact. An officer need only have a reasonable suspicion that an individual is engaged in drug trafficking in order to be entitled to provide him with an opportunity to commit the crime of trafficking.

As Binnie J. held in R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, a "reasonable suspicion" is something more than a mere suspicion – an expectation that a person is possibly engaged in some criminal activity – and something less than a belief based upon reasonable and probable grounds. In order for a court to find that a reasonable suspicion is present, the officer's suspicion must be "supported by factual elements which can be adduced in evidence and permit an independent judicial assessment". What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is the degree of probability demonstrating that a person is involved in criminal activity.

The Supreme Court shed more light on the meaning of "reasonable suspicion" in R. v. Chehil, [2013] 3 S.C.R. 220, 2013 SCC 49, a case dealing with a canine smell search for drugs at an airport, which requires reasonable suspicion. Karatkasanis J., writing for the Court, held at paragraph 32:

Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable."

However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.

(c) Investigating a tip distinguished from giving an opportunity to commit an offence

[20] There is a distinction between a query by the police which merely investigates a tip, and one which provides an opportunity to commit an offence. The former is permissible without a reasonable suspicion that the individual is engaged in criminal activity (although the answer may give rise to such a suspicion) and the latter is impermissible in the absence of such a suspicion or a bona fide investigation.

[21] In R. v. Imoro, 2010 ONCA 122, the Court of Appeal (whose decision was affirmed by the Supreme Court of Canada in very brief oral reasons at 2010 SCC 50, [2010] 3 S.C.R. 62) reversed a finding by the trial judge that the police had entrapped the defendant. The police received an anonymous tip that a man was selling drugs on the twelfth floor of an apartment building. An undercover officer went to the building and took the elevator to the twelfth floor. When the elevator doors opened, the defendant approached the officer and said "come with me." The officer responded "Can you hook me up?" the defendant answered, "Yeah man." The Court of Appeal accepted the trial judge's finding that when the officer asked "Can you hook me up?" he did not have reasonable suspicion that he was engaged in drug trafficking. Laskin J.A. wrote, on behalf of the Court,

15. However, I cannot accept the trial judge's companion finding that the officer's question provided Mr. Imoro with an opportunity to sell drugs. That view of the evidence mischaracterizes what occurred. This mischaracterization stems from a failure to properly distinguish between legitimately investigating a tip and giving an opportunity to commit a crime: see R. v. Townshend, [1997] O.J. No. 6516 (Gen. Div.)

16. By the question "Can you hook me up?" all the officer really asked Mr. Imoro was whether he was a drug dealer. The question was simply a step in the police's investigation of the anonymous tip. It did not amount to giving Mr. Imoro an opportunity to traffic in drugs. That opportunity was given later when the officer and his fellow passenger in the elevator were inside Mr. Imoro's apartment. By then, having observed a drug transaction between Mr. Imoro and the other man, the officer certainly had reasonable suspicion – indeed virtually certain belief – that Mr. Imoro was engaged in trafficking.

[22] The Court of Appeal repeated this line of analysis in R. v. Ralph, 2014 ONCA 3, holding that an officer who phoned a number he had been given in an anonymous tip and said that he had been told "if I want anything to call this number and this guy would link me up … I need product [a phrase meaning I'm looking to buy drugs]" was merely conducting part of the investigation and was not providing an opportunity to commit the offence. The defendant's response of "okay what are you looking for? What do you need?" provided the officer with reasonable suspicion and justified the further statements from the officer, which did provide an opportunity to commit the crime.

[23] Trotter J. applied Imoro and Ralph in R. v. Williams, 2014 ONSC 2370, in finding that the police officer was providing an opportunity to commit the crime, and entrapping the defendant, when, without reasonable suspicion, he said "could you help me out. I need 80." Justice Trotter distinguished that phrase from the ones used in Imoro and Ralph, writing:

27. The distinction between statements such as "I need product?"/"Can you hook me up?"/"Are you around?"/"Where are you?"/ on the one hand, and "I need 80" /"I need 40" /"I need 6 greens"/"I need half a B", on the other, might appear quite subtle. However, the latter statements, involving requests to purchase a specific quantity of drugs, are more definite and less exploratory. With the former, the possibility of a deal still needs to be explored and developed; with the latter, all the accused needs to say is say "yes". That is what happened in this case. That is where the line appears to be currently drawn.

(d) Bona fide inquiry – suspicious location

[24] Police officers are engaged in a bona fide inquiry, and may provide opportunities to commit crimes, to persons associated with a particular location or area where it is reasonably suspected that criminal activity is occurring, even if those persons are not themselves under suspicion. (Mack at p. 956) When such a location is defined with "specific precision", the police may present any person associated with the area the opportunity to commit the particular offence. (R. v. Barnes, [1991] 1 S.C.R. 449 at p. 463)

[25] In Barnes, the Supreme Court of Canada held that because the police reasonably suspected that drug-related crimes were occurring in the Granville Mall, a section of Granville Street in Vancouver occupying approximately six city blocks, they were engaged in a bona fide inquiry and justified in providing an opportunity to commit the crime of trafficking to the defendant, who was walking towards Granville Street. The evidence was that, although there were particular areas within the Granville Mall where drug trafficking was particularly serious, trafficking occurred at locations scattered throughout the mall, and traffickers did not operate in a single place.

[26] Lamer C.J., writing for the majority, said at p. 462:

I note that in many cases, the size of the area itself may indicate that the investigation is not bona fide. This will be so particularly when there are grounds for believing that the criminal activity being investigated is concentrated in part of a larger area targeted by the police.

[27] Other courts have dealt with the issue of whether the geographic area targeted by police in which they have a reasonable suspicion of criminal activity is "defined with specific precision" such that the police are engaged in a bona fide investigation when they provide a person in that area with an opportunity to commit a crime.

[28] In R. v. Benjamin, [1994] O.J. No. 1373, Carthy J.A., sitting as a single motions judge of the Court of Appeal, denied an application by the Crown to extend the time for filing a notice of appeal from an order staying proceedings on the ground of entrapment. The trial judge had found that the area of the police inquiry stretched along Dundas Street from Yonge to River Streets in Toronto, with "undetermined width from north to south". The transaction giving rise to the charge took place at the corner of Sherbourne and Dundas Streets. The officer testified that his purpose that day was to go out on the street and see if he could get someone to sell the drug to him – that he was not given any instructions and he did what he wanted to do. He also testified that he was given no boundaries within which to do this and that "there's no specific reason for going to any particular area". Carthy J.A. held that it was untenable for the Crown to assert that the trial judge erred in law in finding that the area of inquiry was not the intersection of Sherbourne and Dundas Streets. He noted that it was not argued to him that the broad area found by the trial judge could qualify as sufficiently discrete to justify random virtue testing on the principles laid down in Barnes.

[29] In R. v. Sterling, LaForme J., sitting in the Superior Court, held that police had a reasonable suspicion that drug trafficking occurred on both sides of Eglinton Avenue between Markham Road and McCowan Road in Scarborough, and that this area, although not small, was sufficiently defined so as to allow the Drug Squad to offer any person therein an opportunity to sell drugs.

[30] The issue came before the Alberta Court of Appeal in R. v. Faqi, 2011 ABCA 284. The trial judge had stayed a charge of trafficking in cocaine because she held that the police had not been engaged in a bona fide investigation. The police were conducting a broad investigation into drug trafficking in bars in downtown Calgary. They had no suspicion that the defendant was engaged in drug trafficking. There was no geographic limit to the investigation other than that it included all of downtown Calgary. The trial judge held that since the potential geographic scope of the inquiry encompassed all the bars in downtown Calgary, and the evidence did not support a reasonable suspicion that criminal activity was occurring throughout that large area, the investigation was not bona fide.

[31] The Alberta Court of Appeal held in Faqi that the trial judge erred by not addressing the question of whether the police had a reasonable suspicion that criminal activity was taking place in the particular bar where the sale to the undercover officer took place. The trial judge did find that the police were at that bar that night because of tips and information that persons of interest might be in attendance. This led the Court of Appeal to conclude that the police were acting in the course of a bona fide investigation. The Court wrote, at para. 22:

The trial judge made an error of law in failing to appreciate that the scope of the inquiry into whether police were engaged in a bona fide investigation may be a much smaller area under a widespread drug investigation, and that the bona fide analysis should address whether police had reasonable suspicion that criminal activity was occurring in that specific area.

Part 4: Analysis

(a) Reasonable suspicion

[32] It is clear that the police did not have a reasonable suspicion that the defendant was engaged in drug trafficking when Cst. Campbell asked Mr. Whitlock (who was standing beside the defendant) "hey have you got any hard?" On the analysis set out in Imoro and Ralph and applied in Williams, this question would not have provided the defendant with an opportunity to commit crime even if it had been addressed to him. The possibility of a deal still needed to be explored and developed. Even if the defendant had been the recipient of the inquiry, he would not have been able to say "yes" and commit the offence of trafficking by offering to sell drugs.

[33] Even if that query had been over the line described by Trotter J. in Williams, however, it was not directed at the defendant. The question was asked of Mr. Whitlock. Cst. Campbell had a reasonable suspicion that he was engaged in drug trafficking, since she had purchased drugs from him on a previous occasion.

[34] The ensuing interaction between the defendant and Cst. Campbell did not cross the line until after she had a reasonable suspicion that the defendant was engaged in drug trafficking.

[35] The defendant was standing close enough to Mr. Whitlock that the officer believed they were interacting. The defendant heard her tell Mr. Whitlock, in response to his question, that she had twenty dollars, indicating that she wished to purchase twenty dollars' worth of crack cocaine. After Mr. Whitlock went into the shelter, apparently to retrieve the sought after drugs, the defendant told Cst. Campbell not to worry when she asked if Mr. Whitlock was going to return. He also told her that he was always in that area, where drug trafficking was common.

[36] When Mr. Whitlock did not return in a short time, the officer and the defendant left together. When Mr. Whitlock caught up with them, she asked where "they" were going and the defendant replied "the Sally", an indication that he was working with Mr. Whitlock.

[37] After they separated, she then encountered the defendant alone. At this point, she had an objective basis upon which she could conclude that he was attempting to locate her to sell her drugs. As the Court of Appeal held in Imoro, she had a virtually certain belief that he was working with Mr. Whitlock to do so.

[38] She asked him "hey you got it?" This question, in my view, did provide the defendant with an opportunity to engage in the crime of drug trafficking. Cst. Campbell, however, had a reasonable suspicion that he was engaged in trafficking and, as a result, was not acting inappropriately. This was not entrapment.

(b) Bona fide inquiry

[39] The police activity that day was directed at drug trafficking in the entire market area. This is admittedly a big area. It is approximately 10 blocks by four blocks, although this is an older area of the city and the blocks are not large. It may be larger than the 6 blocks (and surrounding side streets) of the Granville Mall described in Barnes. I do not know if it is larger than the stretch of Eglinton which LaForme J. held to be legitimate in Sterling. And it does fit the description warned about in Barnes, of a larger area targeted by police in which criminal activity is concentrated in specific parts.

[40] It is not, however, as large or as amorphous as the area described in Benjamin. In that case, the northern and southern boundaries were not defined with any certainty – indeed, the officer said that there were no boundaries, and there was no specific reason for going to any particular area. Furthermore, the nature of drug trafficking is that it is mobile – just as was described in this case, those involved in it are likely to move around during the course of a single transaction. There was uncontradicted evidence that trafficking took place over the entire market area, which was precisely defined by Det. Cst. Paiement.

[41] I find, on the evidence heard in this case, considering all of the circumstances, that the police were engaged in a bona fide inquiry when Cst. Campbell interacted with the defendant on March 5, 2015 and provided him with an opportunity to engage in the crime of drug trafficking.

[42] In any event, I agree with the Alberta Court of Appeal's holding in Faqi that, in determining whether the police were engaged in a bona fide inquiry, the proper question to ask is whether the police had a reasonable suspicion that criminal activity was occurring in the specific area in which the impugned activities took place. In reaching that conclusion, I take comfort from Chief Justice Lamer's comments at p. 462 of Barnes quoted above. I interpret those to mean that a court should be careful before determining that a bona fide inquiry is under way when the impugned activities took place in an area which, while within a precisely defined area described as a target by police, was not in the portion of that area in which the criminal activity was concentrated. I conclude, in other words, that the Chief Justice was warning against police engaging in a colourable characterization of activity as a bona fide inquiry by expanding the boundaries unreasonably beyond the place where criminal activity was concentrated. If such an attempt is made, it would be appropriate for a court to conclude that there was no bona fide inquiry in the artificially expanded areas – the areas where there was no significant criminal activity. That would not diminish the bona fides of an inquiry where the criminal activity was concentrated.

[43] That is not this case, for the reasons I have set out. Even if the police had artificially expanded the area of investigation, however, there is no doubt that the area where all of the relevant activity in this case took place is an area of very intense drug trafficking.

Part 5: Conclusion

[44] I conclude that the defence has not satisfied me, on a balance of probabilities, that Cst. Campbell entrapped the defendant into committing the offences relating to the first count of trafficking – that is, trafficking, possession of twenty dollars knowing it to have been obtained by the offence of trafficking, failing to comply with an undertaking to not possess any Controlled Drugs and Substances Act substance given in a promise to appear, failing to comply with an undertaking to keep the peace and be of good behaviour given in a promise to appear, and breach of the terms of probation to keep the peace and be of good behaviour. There will not be a stay of proceedings.

Released: January 13, 2017

Signed: Justice P. K. Doody