ONTARIO COURT OF JUSTICE DATE: 2021 05 13 COURT FILE No.: Toronto 18-15006961-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JOSHUA HILL
Before Justice Newton-Smith
Heard on February 24 and March 12, 2021 Ruling released on May 13, 2021
Counsel: Kerry Benzakien and Christina Malezis....................................... counsel for the Crown Nate Jackson............................................................. counsel for the accused Joshua Hill
RULING RE:
ENTRAPMENT APPLICATION
Newton-Smith J.:
I. Overview
[1] The case against Mr. Hill began as a dial-a-dope investigation. Using confidential source information contained in an email from another officer, an undercover officer called Mr. Hill and arranged to purchase crystal meth. Subsequently several transactions occurred and on September 12, 2018 Mr. Hill was arrested and charged with three counts of trafficking. He was also charged in relation to drugs and money that were found in a search incident to arrest.
[2] The trial took place before me in November of 2019. On December 10, 2019 I found Mr. Hill guilty of a variety of offences related to trafficking in crystal meth and other drugs.
[3] After Mr. Hill’s conviction the Supreme Court of Canada released its decision in the companion cases of R. v. Ahmad and R. v. Williams, 2020 SCC 11. In that decision the Court considered the application of the doctrine of entrapment in dial-a-dope investigations.
[4] Following the release of Ahmad Mr. Hill brought an Application for a stay of proceedings on the basis that he was entrapped by the police.
[5] In responding to the Application the Crown sought to enter into a Step Six procedure so as to be able to rely on the confidential source information contained in the email relied on by the undercover officer. I ruled that resort to the Step Six procedure was available in this context [1].
[6] The defence was provided with a redacted copy of the email and I was provided with an unredacted copy along with a draft summary prepared by the Crown. An ex parte hearing was entered into. I made suggestions with respect to the summary and questioned the need for some of the redactions. The Crown agreed with my suggestions and the defence was provided with a revised summary.
II. The Evidentiary Record
(i) The Email Received by Officer Patterson
[7] In June of 2018 Officer Patterson received an email from a fellow officer, Officer Lee, with the subject line “info for dialups”. The email read:
Hey Shona,
Its Karen Lee from the UC Course.
Hope all is well. I hear that you’re at TDS now. I know it always helps to have some phone numbers for dial ups.
Hope this helps. Source is pretty reliable…hopefully it works out for you.
Call me if you need anything!
Karen
[8] Underneath her name, the officer included information in point form. Much of the information was redacted but can be summarised as follows:
- a descriptor followed by the name “Josh Hill”, another name used by Josh Hill, and phone number 437-770-8756
- Information about the types and amounts of drugs that Josh had including crystal meth
- A description, “Male white, 5’8”, Blond Hair”
- “No name drop needed”
- Information about where Josh kept the product and how much he kept in his possession
- Information about other items in Josh’s possession including contraband and some information about his criminal record. [The information about the criminal record was inaccurate]
[9] The email contained three further point form paragraphs, each with respect to another name and phone number, one of whom had a relationship to “Josh”.
(ii) The August 15 call to Josh
[10] After receiving the email in June of 2018 Officer Patterson gave it to her road boss DC Moxam. She did not take any further steps or see it again until August 15, 2018.
[11] On August 15 DC Moxam handed Officer Patterson a stack of papers which contained information from various sources with respect to drug traffickers. DC Moxam directed Officer Patterson to place cold calls and attempt to purchase drugs as an under-cover officer. The email from Officer Lee was amongst the papers. Officer Patterson estimated that she received the papers from DC Moxam at around 3:25 pm, or an hour before a 4:25 pm briefing.
[12] Shortly thereafter Officer Patterson left the office to find a quiet place to make the calls. After calling a number that was disconnected she tried the “Josh Hill” number. On the first attempt the connection was bad and Officer Patterson tried again. When she called back the conversation was as follows:
U/C: Hey, Josh? Hill: Yeah U/C: Hey, it’s Ally. I just called but we had a bad connection. Hill: What can I help you with? U/C: My friend said I could call you for Tina. Hill: Yeah U/C: Can I meet up with you today? Hill: How about 5, I need to take a nap. U/C: Of course, you sound tired. Did I wake you up? Hill: Yea, it’s okay. U/C: Where can I meet you? Hill: Church and Wellesley. U/C: Perfect, I can do that. I’ll call you when I’m close. Hill: Cool. Bye. U/C: Wait, how much? I’ve got $200. Hill: That’s cool, I can give you a ball for that. U/C: Amazing! Thank you. Get some sleep! Bye.
[13] Immediately after the call Officer Patterson returned to the office to advise DC Moxam that she had set up a deal.
(iii) The Investigative Steps Taken on August 15
[14] From the time that she received the stack of papers from DC Moxam to when she advised him of the successful call, Officer Patterson did not take any other investigative steps or speak with any other officers.
[15] At 4:25 pm, in preparation for Officer Patterson’s meeting with Josh, there was a team briefing. At the briefing DC Moxam distributed a briefing sheet and Officer Patterson was given marked police buy money to make the transaction.
[16] At some point prior to the 4:25 briefing DC Moxam had tasked Officer Singer with checking the Josh Hill number against police databases.
[17] Officer Singer matched the phone number to a mug shot and date of birth corresponding to Joshua Hill. He completed his checks at 3:40 pm. DC Moxam used the checks to compile the briefing sheet. DC Moxam testified that briefing sheets were prepared after a successful call had been made. Neither DC Moxam nor Officer Singer had any discussion with Officer Patterson about the phone check prior to the 4:25 pm briefing.
[18] Later that day, after the debriefing, Officer Patterson met Mr. Hill and purchased 3.56 grams of crystal meth for $200. Similar transactions occurred on September 7 and 12.
(iv) Mr. Hill’s Arrest
[19] Mr. Hill was arrested following the September 12 transaction.
[20] The transaction occurred outside an apartment building at 33 Isabella Street in Toronto. Mr. Hill had directed Officer Patterson to meet him there. She arrived by car and waited for Mr. Hill
[21] When Mr. Hill came out of the apartment building he was carrying a black backpack and was with a woman, later identified as Chantal Ariss. Mr. Hill handed Ms. Aris his backpack and got into Officer Patterson’s car. Meanwhile Ms. Ariss headed to another car parked a short distance away.
[22] Mr. Hill got into the officer’s car where the exchange took place. Once Mr. Hill was out of the car a take-down was called. Mr. Hill was arrested as he was walking away from the car. A search incident to arrest revealed a quantity of drugs in his left front pant pocket and cash in the right, as well as 2 cell phones.
[23] While Mr. Hill was being arrested another officer approached and arrested Ms. Ariss. The black backpack was seized from her car. It contained a quantity of drugs and cash.
[24] I found Mr. Hill guilty of being in possession of the drugs and cash in the knapsack and on his person. [2]
III. The Law of Entrapment
(i) The Doctrine of Entrapment in the Context of Dial-A-Dope Investigations
[25] The doctrine of entrapment was settled in Canada with the Supreme Court’s decision in R. v. Mack, [1988] 2 S.C.R. 903. Entrapment occurs when,
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 the criminal activity or pursuant to a bona fide inquiry;
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.
Mack, at para. 122
[26] A finding of entrapment is a finding that there has been an abuse of process and therefore leads to a stay of proceedings: Mack, at paras. 73-4.
[27] Recently, in the companion cases of Ahmad and Williams, the Supreme Court had occasion to review the law of entrapment and its application in dial-a-dope investigations. The question before the Court in Ahmad was, when and how is reasonable suspicion established when an officer receives a tip or information that a phone number may be used for drug dealing. The majority affirmed that, “police cannot offer a person who answers a cell phone the opportunity to commit an offence without having formed reasonable suspicion that the person using that phone, or that phone number, is engaged in criminal activity”: Ahmad, at para. 3.
(ii) Reasonable Suspicion and Entrapment
[28] While reasonable suspicion is a lower standard than reasonable grounds, it remains an objective one, the purpose of which is to protect individual interests and preserve the rule of law. The majority in Ahmad summarised reasonable suspicion as follows:
The suspicion must be focused, precise, reasonable, and based in "objective facts that stand up to independent scrutiny" (MacKenzie, at para. 74). In Simpson, at pp. 500-3, the Court of Appeal for Ontario, drawing from U.S. jurisprudence, this Court's application of reasonable suspicion in Mack, and the articulable cause doctrine in R. v. Wilson, [1990] 1 S.C.R. 1291, summarized reasonable suspicion as requiring a "constellation of objectively discernible facts" giving the officer "reasonable cause to suspect" that a certain kind of crime was being committed by a particular person or in a particular place. This definition continues to be applied by this Court (see, e.g., R. v. Jacques, [1996] 3 S.C.R. 312, at paras. 24-25; Kang-Brown, at para. 76; Chehil, at para.3). Ultimately, the evidence said to satisfy reasonable suspicion must be carefully examined.
Ahmad, at para 46.
[29] Reasonable suspicion cannot be grounded in bald tips alone. Where the tip comes from a confidential source it falls on the court to examine whether its detail is compelling, the informant is credible, and its information is corroborated in any way. Deficiencies in one area can be made up by strengths in another. The difference between the requisite grounds to establish reasonable suspicion that a person is involved in criminal activity and reasonable and probable grounds to believe that they are so involved is in the degree of probability required: R. v. Debot, [1989] 2 S.C.R. 1140, at para. 60, R. v. Kang-Brown, 2008 SCC 18 at para. 75.
[30] The majority in Ahmad cautioned that it is preferable for the police to form reasonable suspicion prior to making the call stating, “police must be aware that in placing the call without reasonable suspicion, they are walking on thin ice, having already intruded upon the private life of their interlocutor”. However, if reasonable suspicion has not crystallised prior to the call, the language of the call can be scrutinised to determine if grounds formed during the call but prior to the opportunity being offered: Ahmad at para.54.
[31] The opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering “yes”: Ahmad, at paras. 62-66.
[32] In the context of dial-a-dope investigations, “a bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion”: Ahmad, at para. 4. Prior to making the call in both Ahmad and Williams that was all that the police had. In Ahmad the majority found that reasonable suspicion had crystallised during the call prior to the opportunity being offered, whereas in Williams it had not.
(iii) The Finding of Reasonable Suspicion in Ahmad
[33] In the case of Ahmad, the tip was nothing other than that “Romeo” was selling drugs using a particular phone number. When the officer called and said, “Hey, It’s Mike, Matt said I can give you a call, this is Romeo?” Mr. Ahmad responded, “He did, did he?”. Mr. Ahmad did not ask the officer who he was or what he wanted. The officer then said, “Yeah, said you can help me out?”, to which Mr. Ahmad responded, “What do you need?”. Following this the officer provided the opportunity to traffic by responding, “2 soft”.
[34] The court found that the combination of the following factors led to a reasonable suspicion that the person who answered the phone was engaged in drug trafficking.
[35] The male who answered the phone did not appear surprised when a stranger, on another person’s recommendation, called him for “help”. Rather, he proceeded to engage the officer by asking “what do you need?”. When the officer said, “[Matt] said you can help me out”, the male did not respond by asking, “help you out with what?”, rather he simply asked the officer what he needed. All of which, given what the officer knew of illicit drug transaction’s experience, combined to establish reasonable suspicion.
(iv) The Finding of Entrapment in Williams
[36] In the case of Williams, the police received a tip that “Jay” was selling drugs using a phone number. Investigative checks related the phone number and the name “Jay” to Mr. Williams who had previously been arrested for drug trafficking. The information derived included an address at which Mr. Williams had allegedly been trafficking drugs, a physical description and a home address.
[37] The undercover officer called the number and said “Jay?”. Mr. Williams responded, “Yeah” and the officer asked, “You around?”. Mr. Williams then asked, “Who is this?” and when the officer said, “Vinny” Mr. Williams asked, “Vinny who?”. It was in response to this question that the officer offered the opportunity by saying, “Vinny. Jesse from Queen and Jarvis gave me your name…your number. Said you could help me out. I need 80.”
[38] The distinction between Ahmad and Williams was that in Williams the person who answered the phone said nothing that was suggestive of an involvement in drug trafficking. He did not respond to the question “You around?” but rather wanted to know, “Who is this?”. And when the officer said “Vinny”, he did not respond with an offer to help, rather he again queried who was calling. Mr. William’s responses were exactly what one would expect of a person who was being called out of the blue by an individual purporting to have familiarity with him. Whereas Mr. Ahmad was quickly willing to go along with a call from a stranger purporting to have been told by someone else that “Romeo” could help him out. He asked no questions about who Mike was or who Matt was, and no questions about what “Mike” wanted to be helped out with.
IV. Analysis
(i) The Position of the Parties
[39] It is agreed that in the circumstances of this case, Officer Patterson offered Mr. Hill the opportunity to traffic when she said, “My friend said I could call you for Tina”. Officer Patterson testified that “Tina” was a street name for crystal meth. By responding, “Yeah” Mr. Hill committed the offence of trafficking in crystal meth.
[40] The question is, did Officer Patterson have reasonable suspicion prior to making the call that the person, “Josh Hill”, associated with that phone number was engaged in drug trafficking. If not, did the suspicion crystallise in the call prior to the officer saying, “My friend said I could call you for Tina”.
[41] It is the position of the defence that prior to the call the source information was not sufficiently compelling, credible and corroborated to ground a reasonable suspicion that Mr. Hill was engaged in drug trafficking, and that prior to the opportunity being offered there was nothing in the content of the call to establish a reasonable suspicion.
[42] It is the position of the Crown that, prior to the call, the email from Officer Lee and the phone check conducted by Officer Singer established reasonable suspicion. Additionally, or alternatively, the Crown submits that during the call, and prior to the opportunity being offered, Mr. Hill’s responses confirmed the source information that he was engaged in drug trafficking.
[43] Alternatively, the Crown submits that should entrapment be made out the convictions arising from the searches incident to arrest were not the product of entrapment and should not be stayed.
(ii) The Known Circumstances Prior to the Call
[44] Prior to making the call Officer Patterson had received information that someone going by the name Josh Hill with phone number 437 770 8756 was dealing crystal meth. But that was not the only information that she received. There was detail to the information including other types of drugs sold by this person, a general physical description, information about where he stored his drugs, other items that he had in his possession including contraband and some information about his modus operandi, including that “no name drop needed”.
[45] The information came from another police officer who vouched for her source as being “pretty reliable”.
[46] Prior to making the call Officer Patterson did not know anything about the currency of the information, other than that it was at least 2 months old.
[47] If the number’s association with Joshua Hill had been corroborated prior to her making the call this was not known to Officer Patterson, and not known to DC Moxam, her superior officer who directed her to make the call. I do not find that Officer Singer’s phone check is a factor to be considered in the circumstances.
[48] Prior to making the call officer Patterson had significantly more information than the police had in Ahmad, and more than was available in Williams. Significantly, she had some information about Josh Hill’s modus operandi including that “no name drop” was needed. She also had information from a fellow officer that the source was “pretty reliable”. I find that the information known to Officer Patterson prior to her making the call rose above being a “bare unsubstantiated tip that someone was dealing drugs from a phone number”. It was, to some degree, compelling and credible.
(ii) The Circumstances of the Call
[49] When Officer Patterson called the number and said “Hey, it’s Ally. I just called but we had a bad connection.”, Mr. Hill, like Mr. Ahmad, did not ask who she was or evidence any surprise that a stranger would be calling him. Rather, he said “What can I help you with?”. There are innocent explanations for this response. As a figure of speech “what can I help you with” can be a polite why of saying, “why are you calling me” or, “what do you want”. An understandable and innocent response to receiving a call from a stranger.
[50] However, as the majority found in Ahmad, reasonable suspicion is individualised to the particular “constellation of objectively discernable facts” of a given situation. And while innocent explanations are relevant, the police are not required to rule them out: Ahmad, at para. 48.
[51] Prior to making the call Officer Patterson had information from a source with some degree of reliability that she could call the number for drugs without having to give a “drop name”. She had information that the person answering, who would respond to the name “Josh”, had a variety of drugs for sale. It was open to Officer Patterson, given the information that she had prior to making the call, to reasonably suspect, as she did, that the question “what can I help you with”, which came before any inquiry as to who she was, meant, “what drugs would you like to purchase?”. Mr. Hill’s response was corroborative of the source information, and in particular that “no name drop needed”.
V. Conclusion
[52] Certainly it would have been preferable for Officer Patterson to make further inquiries into what Office Lee meant when she said that her source was “pretty reliable”. And it would have been preferable for her team to have run checks on the information provided prior to directing an officer to make the cold call. While the ice that Officer Patterson skated on was not as thin as in Ahmad, it was not as thick as it could have been. And while I do not find it to be an “extremely close call” as the majority found Ahmad to be, it is close. That being said, in considering all of the circumstances I do find that Officer Patterson had reasonable grounds to suspect that Mr. Hill was engaged in drug trafficking before she gave him the opportunity to traffic.
[53] Consequently, I will not address the Crown’s submissions with respect to the scope of a finding of entrapment.
Released: May 13, 2021 Signed: Justice A. Newton-Smith
Footnotes:
[1] Ruling re The Availability of Step Six on an Entrapment Application released December 17, 2020 [2] Reasons for Judgment were released orally on December 10, 2019