Court File and Parties

Ontario Court of Justice

Date: November 14, 2019

Court File No.: Central East - Newmarket – 4911 998 16 04315

Between:

Her Majesty the Queen

— and —

Duncan Mathewson

Before: Justice Amit A. Ghosh

Counsel:

• Avik Ghosh, counsel for the Public Prosecution Service of Canada
• Robert Christie, counsel for the applicant Mr. Mathewson

Reasons for Judgment

Released on November 14, 2019

Overview

[1] Duncan Mathewson pleaded guilty to trafficking cocaine (x3) and MDMA (x2) to an undercover officer, contrary to s.5(1) of the Controlled Drugs and Substances Act (CDSA). He has raised the defence of entrapment in pursuit of a stay of proceedings. The investigation into the defendant was part of a larger police operation dubbed "Project Legion".

Circumstances of the Investigation and the Offences

Information Known to Police Before First Contacting the Target

[2] Detective Constable (DC) Weishar of the York Regional Police had received information from a known confidential source that a person named "Duncan" with a particular cell phone number and physical description was trafficking cocaine and MDMA in the General Toronto Area.

[3] The officer took some steps to corroborate the non-trafficking information received. DC Weishar searched police databases and located a police report involving a complainant named "Duncan Mathewson" who provided a cell phone number that matched the one provided in the tip. He also searched the internet and located a Facebook profile of a male named "Duncan Mathewson" living in the Toronto area. The photographs associated with the profile matched the specific descriptors provided by the confidential source.

[4] DC Weishar shared the entirety of his investigation with DC Kubels, an undercover (UC) officer.

December 10: "Duncan" Agrees to Sell MDMA to UC Through Text Messages

[5] On December 10, 2015, DC Kubels sent "Duncan" text messages to the phone number provided in the tip. After confirming with the recipient of the text that he was communicating with "Duncan", the UC asked the person if he still sold MDMA. The target replied that he would text back from another line. Through a series of text exchanges, the target agreed to traffic four grams of MDMA to DC Kubels for $200.

December 10: First In-Person Meeting – MDMA Sold and Cocaine Discussed

[6] The UC officer and the target agreed to meet later that day near the underground parking lot of the defendant's condominium building at 165 Legion Road North in Toronto. DC Kubels attended with a fellow UC officer. Mr. Mathewson entered the rear seat of the officer's vehicle and asked to be driven some distance away from the building. DC Kubels believed this was the same man captured in the Facebook profile and was the subject of the confidential information provided.

[7] During the brief drive, the defendant stated "Here it is" as he handed over to DC Kubels a small Ziploc bag containing four grams of MDMA. The officer soon handed over $200 to Mr. Mathewson. They briefly discussed the quality of the MDMA.

[8] DC Kubels testified that Mr. Mathewson indicated that this was the last of this product that he had for sale at that time, and that he could get "whatever, Molly; White, raw or re-pressed". "White" referred to cocaine, "raw" meant pure cocaine and "re-pressed" indicated diluted cocaine. DC Kubels testified that the defendant's comments were not solicited by either officer. He understood that Mr. Mathewson was simply providing him with a "menu" of drugs accessible for sale.

[9] DC Kubels further testified that Mr. Mathewson told them that he does not sell cocaine in "balls" (referencing a smaller amount of 3.5 grams), as it was a waste of time. He told them he sold by the ounce and they discussed price points of $1,250 for an ounce of cut cocaine, or $1,900 for an ounce of uncut cocaine.

December 15: Free Sample and an Offer to Sell Cocaine by the Ounce

[10] On December 15, 2015, DC Kubels and the defendant communicated again through text messages. Mr. Mathewson agreed to provide the officer with a half-gram sample of cocaine as a sample to convey the quality. The UC officers met the defendant later that day at 165 Legion Road North.

[11] Mr. Mathewson provided DC Kubels with a free sample of 0.68 grams of cocaine. He then repeated that he could sell an ounce of cut cocaine for $1,250, or the officer could opt for high purity at greater cost and dilute the cocaine himself.

February 19: Transaction Completed for an Ounce of Cocaine

[12] On February 19, 2016, the two UC officers and Mr. Mathewson met again at the same building after a few days of text exchanges. The defendant provided the officers with an ounce of cocaine in exchange for $2,100.

[13] Mr. Mathewson then discussed with the officers selling larger quantities of cocaine for better prices. They also discussed transacting in more MDMA.

March 31: Video Recorded Transaction for an Ounce of Cocaine

[14] Prior to the transaction of March 31, 2016, the police had obtained a single-party-consent authorization to record their communications with Mr. Mathewson. The UC officers met again with the defendant at 165 Legion Road North.

[15] Mr. Mathewson provided DC Kubels with 0.4 grams of MDMA as a free sample. He then trafficked 30 grams of cocaine to the UC officer in exchange for $2,050. The interaction was surreptitiously captured by a reverse-dash-camera mounted in the UC officer's vehicle.

Conclusion of the Investigation

[16] Between March 31 and April 8, 2016, Mr. Mathewson had been arrested by the Toronto Police and a search warrant had been executed at his home. On April 8, 2016, DC Kubels exchanged text communications with the defendant. Mr. Mathewson stated that he needed to "lay low" given the arrest, and shared that it may be wise for the UC officer to change his cell phone number.

[17] The two men had no further trafficking related communications. Mr. Mathewson was soon arrested in York Region for these offences. The video recorded interaction and the exchanged text messages were received in evidence.

Defence Evidence: Testimony of Duncan Mathewson That He Was Entrapped

[18] Mr. Mathewson testified. He was a recreational consumer of MDMA and conceded that he trafficked in small amounts of that drug surrounding the time of the UC investigation.

[19] The defendant testified that he was also a heavy user of cocaine and would comfortably consume as much as a half of an ounce over the course of a weekend. He would spend at least $2,500 - $3,000 a month on the drug. He had access.

[20] Mr. Mathewson had sold cocaine in the past but felt that it was too much of a "hassle". He found that the profits for transacting even in smaller quantities of MDMA were greater. He also funded his drug use through income from his work in construction.

[21] Mr. Mathewson gave evidence that during his first in-person meeting with the UC officers, they had raised and repeatedly pressed their pursuit of cocaine at the ounce level. The defendant testified that he never intended to traffic in cocaine, but he reluctantly acquiesced to the officer's requests in order to keep them as longer-term buyers of MDMA. He called this the "convenience store" effect.

[22] Mr. Mathewson testified that he only ever intended to traffic in small amounts of MDMA to the UC officers and that they pressured him into selling them cocaine by the ounce.

Analysis

A) The Defence of Entrapment – The Law

[23] The defence of entrapment is available when either:

(a) "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; 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."

[24] In setting out the defence of entrapment in Mack, the Supreme Court attempted to balance two competing objectives. On the one hand, the court recognized the need to give the police considerable latitude to investigate consensual crimes such as drug trafficking, given traditional investigative techniques may prove ineffective. This objective was balanced against an acknowledgement that police cannot be granted unchecked authority to randomly test the virtue of individuals and manipulate them into committing crimes: R. v. Ahmad.

[25] The entrapment defence is a variant of the abuse of process doctrine. Both a finding of entrapment and the remedy of a stay of proceedings should only be granted in the clearest of cases. The defendant must establish the defence on the balance of probabilities.

B) Positions of the Parties

[26] Defence counsel submitted that the police did not have a reasonable suspicion that Mr. Mathewson was already involved in criminal activity before providing an opportunity to commit an offence. The submission was based on the arguably limited tip from an untested confidential source that sparked the investigation.

[27] The defence also submitted that the police provided an opportunity to commit a crime without acting pursuant to a bona fide inquiry. Somewhat contrary to the tenor of Mr. Mathewson's testimony, counsel did not pursue the second avenue to an entrapment finding by submitting that the police improperly induced the commission of the offences. This was patently correct of counsel.

[28] The Crown responded that the police were fixed with a reasonable suspicion that Mr. Mathewson was engaged in drug trafficking on the strength of a compelling tip from a known confidential source. It was further argued by the Crown that the police were entitled in law to engage the target in non-criminal discussions to corroborate the tip and confirm the reasonable suspicion before offering an opportunity to traffic drugs. It was finally submitted that this was a bona fide inquiry.

C) The First In-Person Meeting and the Competing Versions of Events

[29] While defence counsel submitted that the police did not have a reasonable suspicion to initially attempt to purchase MDMA from the target, Mr. Mathewson testified that he was prepared at all relevant times to traffic MDMA to the UC officer. This was comfortably borne out by the text exchanges.

[30] The entrapment submission primarily centred on the first in-person meeting and the police pursuit of cocaine. The UC officer testified that Mr. Mathewson offered, unsolicited, to traffic cocaine at the ounce-level as a part of a "menu" of product available for sale. Mr. Mathewson testified that the officer repeatedly raised and advanced his pursuit of ounce-level cocaine and that the defendant reluctantly acquiesced in order to keep the officer as a client.

[31] The appellate direction is clear that I must be attentive to the specific words exchanged in determining whether entrapment has been established. Accordingly, given the competing versions in evidence, I must make and assess findings of fact regarding this initial verbal exchange.

D) Entrapment, Credibility, and Findings of Fact

[32] I found the DC Kubels to be a credible witness, and his description of the first meeting in person with Mr. Mathewson was facially reasonable. He recorded the discussion in his notes. I did not find Mr. Mathewson credible, primarily due to his testimony suggesting he was so intoxicated on drugs during the March 31st video recording that his representations in it should not be afforded much weight.

[33] This was self-serving evidence that I find was designed to distance and exculpate Mr. Mathewson from his contradictory, goal-oriented and transactional presentation on the video. I find that the March 31st video demonstrated that he was clearly "working" a buyer to keep him in the fold.

[34] The defendant's presentation on the video was consistent with the text exchanges with the UC officer over the course of several transactions where he demonstrated that he was a savvy and knowledgeable trafficker of cocaine at the ounce level. The texts and the video confirm that he knew how to traffic cocaine at these quantities well before he encountered the officer. Returning to the tip from the confidential source, "Duncan" trafficked in both cocaine and MDMA.

[35] Consequently, the defence submission that DC Kubels' characterization of this first in-person meeting defied logic did not resonate. It was suggested that because the officer presented as a purchaser of a small amount of MDMA, and thus a mere "partier", it would have been an irrational leap for Mr. Mathewson to suddenly offer, unsolicited, to sell cocaine to him at the ounce-level.

[36] This submission collapses in the face of the officer's reasoned belief that Mr. Mathewson was apparently offering a "menu" of product for sale. In assessing the testimony, it is difficult to ignore the fact that Mr. Mathewson promptly delivered the goods for ounce-level cocaine transactions.

[37] Again, the text exchanges confirm that Mr. Mathewson was experienced and knowledgeable in trafficking cocaine at this level. Considering this finding, the submission that the defendant was somewhat imprecise in the price estimate and, thus, must have been out of his depth, was unpersuasive. The imprecision of the pricing was relatively negligible.

[38] Consequently, I find as a fact that Mr. Mathewson offered, unsolicited, to sell cocaine at the ounce-level to the officer during their first in-person meeting. This finding cascades into their ensuing interaction where Mr. Mathewson voluntarily transacted with the officer in MDMA and cocaine by the ounces.

E) "Reasonable Suspicion" and the Information Available Upon Contact

[39] A "reasonable suspicion" that one is engaged in criminal activity is a permissible threshold for certain investigatory techniques where lesser privacy interests are engaged. The analysis engages reasonable possibilities rather than probabilities. It is a less rigorous standard than reasonable grounds but requires more than a hunch or mere suspicion. Its assessment must be based on objectively discernable facts in consideration of the totality of circumstances: R. v. Chehil.

[40] Did the police have a reasonable suspicion that Mr. Mathewson was engaged in criminal activity before engaging him in criminally-oriented discussions? I find that they did. Before the police contacted Mr. Mathewson, DC Weishar had conveyed to DC Kubels a tip from a known confidential source that contained three key pieces of information:

1. "Duncan" was the name of a suspected drug trafficker with a particular physical description;

2. He could be contacted at a specific phone number; and

3. He trafficked in "cocaine and Molly" in the General Toronto Area.

[41] The Supreme Court in R. v. Debot, outlined the basis upon which a confidential tip can be relied upon to form reasonable grounds. The law requires that the tip must be sufficiently "credible", "compelling" and "corroborated" based on the totality of the circumstances. Weaknesses in one of the areas may be compensated by strengths in the others. The same analysis applies to the less rigorous "reasonable suspicion" threshold.

[42] In this case, it is difficult to assess the credibility of the tip or the source. I do find that the tip was compelling and corroborated. I will expand on these findings.

F) "Credible" Quality of the Tip

[43] I will err in characterizing the tip as somewhat less credible, given the absence of any meaningful information about the confidential source. There is no evidence before me regarding the reliability of any past information provided, nor whether the tip was grounded in first or second-hand knowledge. More accurately, there is little basis upon which to assess the credibility of the tip.

[44] I do note that the source handler was aware of the source's motivation, possible criminal background and facts impacting credibility. DC Weishar assessed the source and the tip as "very credible and compelling".

G) "Compelling" Quality of the Tip

[45] The tip itself was indeed objectively compelling. The tip contained the first name and physical description of the alleged drug trafficker, a specific phone number associated with the target, and that the person trafficked specifically in MDMA and cocaine in the GTA. There is appellate support for a similar Charter-compliant balancing of a compelling tip against weaker credibility or corroboration: See R. v. MacDonald.

H) "Corroboration" of the Tip Prior to First Contact

[46] DC Weishar took steps to confirm the non-trafficking aspects of the tip. He conducted a police database search for "Duncan's" phone number. The officer learned that "Duncan Mathewson" was a complainant in a Toronto Police occurrence and had provided the police with the very phone number conveyed in the tip.

[47] The officer searched the internet and found a Facebook profile for "Duncan Mathewson" who lived in Toronto. Consistent with the physical description provided in the tip, the photographs associated with the Facebook profile revealed a white male with red hair, neck tattoos and "spacers" for earrings. The name "Duncan" was apparently not an alias.

[48] The police were able to corroborate the name "Duncan", the phone number and the unique physical description of the target. In doing so, they also developed a reasonable suspicion that "Duncan" was not an alias, but an actual person named "Duncan Mathewson". This pre-contact corroboration heightened the overall cogency of the tip.

I) Contacting the Target – Corroboration as Opposed to Invitation to Offend

[49] The police are permitted to take reasonable steps in engaging the target of an investigation in non-criminal discussions in order to corroborate a tip. In this case, the first text exchange between the officer and Duncan Mathewson corroborated the tip by connecting the phone number provided to the name "Duncan". DC Kubels simply inquired in the first text before any criminality was raised: "Hey this still Duncan?" Mr. Mathewson texted back: "Ya who's this".

[50] Our Court of Appeal in R. v. Virgo endorsed an almost identical investigatory step in permitting initial contact with a target in furtherance of corroborating a tip. At paragraph 7, the Court found that the trial judge erroneously:

...concluded that the tip by itself did not constitute the basis of a "reasonable suspicion," and that the police had done nothing to corroborate it before providing the suspect with an opportunity to commit an offence. With respect, that is not quite accurate. The first telephone call was structured in such a fashion as to get confirmation of the name "George" before any suggestion of an unlawful transaction was made.

[51] Quite apart from the benign text message to confirm the first name provided in the tip, DC Kubels was also permitted to simply ask the target whether he still sold MDMA. By asking Mr. Mathewson if he was "still able to link m", the officer was merely inquiring. It was not an invitation.

[52] Given the coded language, I find that an innocent party could only have responded with confusion or incredulity. Instead, Mr. Mathewson replied "Yeah" and sought confirmation of the contact person before indicating he would message this stranger from another line. Mr. Mathewson then promptly agreed to traffic MDMA over text exchanges.

[53] Our Court of Appeal in R. v. Imoro similarly found a distinction between permissible engagement with a target to corroborate the prospect of drug trafficking as opposed to the impermissible provision of an opportunity to offend without a lawful basis. At paragraph 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.

[54] As soon as DC Kubels first met the defendant in person, he minimally had a reasonable suspicion that Mr. Mathewson was the same person associated with the Facebook profile, the phone number and, thus, the tip itself. As I consider the defence submission that the defendant was entrapped specifically into trafficking cocaine, I note the tip indicated that the target trafficked in both MDMA and cocaine.

[55] Based on the totality of the circumstances, I find that the police had a reasonable suspicion that Mr. Mathewson was already engaged in trafficking cocaine and MDMA before they provided him with an opportunity to traffic the same drugs.

J) "Bona Fide Inquiry" Into "Areas" Associated with Crime

[56] Even if the police did not have a reasonable suspicion that the defendant was already engaged in criminality, they could still provide him with an opportunity to commit a crime if they were acting pursuant to a "bona fide inquiry". I find that the police were also acting pursuant to a bona fide inquiry.

[57] The Supreme Court framed the principles applicable to "bona fide" inquiries in R. v. Barnes. The focus of the analysis centred on the notion that where the police did not reasonably suspect a specific person was involved in crime, they were still entitled to present opportunities to offend in "areas" where they reasonably suspected crime was occurring.

[58] As Chief Justice Lamer clarified: "The notion of being 'associated' with a particular area for these purposes does not require more than being present in the area." In this defined, locational context, the police are permitted to present a random person with an opportunity to commit a crime.

[59] With the ubiquity today of the internet and smartphones, the proper, contemporary approach to applying these principles must recognize the police authority and duty to legitimately investigate "spaces", physical or otherwise, reasonably suspected of criminality. The proliferation of crime on digital and virtual platforms necessitates such a principled approach.

[60] This modern perspective was fleshed out by the Court of Appeal in Ahmad. The Court found that the police did not have a reasonable suspicion that either appellant was involved in drug trafficking. However, it found that they were acting pursuant to a bona fide inquiry into a phone number reasonably suspected of facilitating a "dial-a-dope" drug trafficking scheme.

[61] No suspects are necessarily identified in such schemes, but a prospective buyer could just call a phone number to purchase illicit drugs for delivery or pick-up. The physical location was less important. The Court noted:

The absence of a set location in dial-a-dope schemes should not foreclose the possibility that the police may be engaged in a bona fide inquiry when they contact a telephone line associated with a dial-a-dope and provide the opportunity to sell drugs. While Barnes considered a physical location, it did not foreclose the possibility that the police may be engaged in a bona fide inquiry even in the absence of a set location. As Lamer J. observed in Mack, at p.956, there may be situations when the police "know certain other facts, such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring", which allow them to provide an opportunity to persons not themselves the subjects of reasonable suspicion as part of a bona fide inquiry.

[62] The appellants in Ahmad happened to answer the UC officer's inquiry to the "dial-a-dope" phone number and then trafficked drugs to him. Despite the bona fide inquiry finding, the Court found that the police did not have a reasonable suspicion that the appellants were involved in criminal activity. I note that both appellants used aliases, unlike this case where the confidential source conveyed to the police the correct, and quickly corroborated, first name of the target.

[63] Mr. Mathewson's counsel submitted that the UC officer's concession that he was not investigating a "dial-a-dope" scheme supported that he was not acting pursuant to a bona fide inquiry. I disagree.

[64] The "dial-a-dope" characterization is immaterial. The issue remains whether the "space" investigated was reasonably suspected of being involved in criminal activity. If so, and a random target fell within the scope of that "space", the police were acting pursuant to a bona fide inquiry. In this case, a known confidential source informed the police that the phone number in question was associated with drug trafficking. The cell phone number was the "space" reasonably suspected of being associated with criminal activity.

[65] It did not matter in the circumstances who responded to the police communications with the cell phone number. They provided the apparently lone user of a phone number associated with drug trafficking with an opportunity to commit that very crime. This was not random-virtue testing. This was a bona fide inquiry into a cell phone number reasonably suspected of being involved in criminal activity.

Conclusion

[66] I do not find, on the balance of probabilities, that Mr. Mathewson was entrapped to traffic in controlled substances at any stage of the investigation. The police had a reasonable suspicion to believe he was trafficking in cocaine and MDMA before presenting an opportunity to offend. They were also acting pursuant to a bona fide inquiry into the phone number provided in the confidential tip.

[67] The police also did not go beyond providing a mere opportunity to offend in order to induce the commission of the offence. The application fails. My thanks to counsel.

Released: November 14, 2019

Signed: "Justice Amit A. Ghosh"