Ontario Court of Justice

Date: 2022-09-08

Between: Her Majesty the Queen — and — Rapinder Bains

Judgment

Counsel: B. Chu, E. Lo Re – Counsel for the Crown Respondent D. Paradkar, J. Vamadevan – Counsel for the Applicant

Before: Felix J.

I. Introduction

A. Introduction

[1] The defendant is factually guilty of trafficking. He applies for a stay of proceedings pursuant to s.24(1) of the Charter of Rights and Freedoms (Charter) based on an assertion that he was entrapped.

[2] The trial was conducted with professionalism and expediency. The prosecution case was presented by way of agreed statement of fact. The parties provided fulsome written factums and focused submissions on the issue of entrapment.

[3] The central issue concerns a text communication between police investigator DC Khan and the applicant in November 2019. DC Khan received the following message from the applicant:

7677: Yoo if anyone tried calling my phone has been fucked back on roads callll whenever up all night

[4] DC Khan responded the following day with the following message and received a response:

DC Khan: Yo Fam it’s Jason can u link a Grammy? 7677: Ya wru

[5] Prior to sending this text reply, DC Khan reviewed a CHS tip and an earlier investigation involving another officer named DC Berry. This officer had previously communicated with a person or persons using the same phone number from January to April 2019.

[6] The applicant submits that DC Khan’s November reply communication constitutes an invitation to commit an offence in circumstances where he lacked reasonable suspicion. The applicant was entrapped. The respondent agrees with the applicant submission that DC Khan’s communication was an invitation to commit an offence. The respondent submits that DC Khan possessed the requisite reasonable suspicion prior to sending the response.

[7] The Supreme Court of Canada has recently provided clear guidance on the proper analysis of entrapment in R. v. Ahmad, 2020 SCC 11 [Ahmad]. At paragraph 4 of Ahmad the Court captured the essence of the issue:

4 We say our jurisprudence affirms 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. Whether the police are targeting a person, place or phone number, the legal standard for entrapment is a uniform one, requiring reasonable suspicion in all cases where police provide an opportunity to commit a criminal offence. Reasonable suspicion is a familiar legal standard that provides courts with the necessary objective basis on which to determine whether the police have justified their actions. A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion.

[8] For the reasons that follow, the applicant has not established on a balance of probabilities that he was entrapped by DC Khan. The respondent has established that DC Khan possessed the requisite reasonable suspicion. The application is dismissed.

II. Analysis

A. The Legal Test

[9] The test for entrapment is set out in R. v. Mack, [1988] 2 S.C.R. 903 [Mack] and Ahmad. A brief summary of the test will suffice for the purposes of this judgment.

1. Entrapment

[10] Entrapment is not a defence to a criminal allegation. As explained in Ahmad at paragraphs 16 and 17, the doctrine exists as a species of abuse of process: (See also R. v. Zakos, 2022 ONCA 121 at para. 22):

At the most general level, the doctrine exists because “[i]t is a deeply ingrained value in our democratic system that the ends do not justify the means” (Mack, at p. 938). Some of those means are unacceptable in a free society with strong notions of fairness, decency, and privacy. Although police must be afforded latitude, entrapment is a species of abuse of process because police involvement in the commission of a crime can bring the administration of justice into disrepute.

Mack determined that the purpose and rationale of the entrapment doctrine lies in a court’s inherent jurisdiction to prevent an abuse of its own processes. Entrapment is not a substantive defence leading to an acquittal, because in most cases the essential elements of the offence will be satisfied, even where entrapment occurred. Rather, the appropriate remedy is a stay of proceedings because “while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction” and a conviction would therefore bring the administration of justice into disrepute (Mack, at p. 944 (emphasis deleted), citing R. v. Jewitt, [1985] 2 S.C.R. 128, at p. 148). Such a remedy also affirms the primacy of personal freedom: the state simply has no business unjustifiably intruding into individuals’ private lives, randomly testing their virtue, and manufacturing crime (Mack, at p. 941).

[11] In Mack, the Court set out two categories of entrapment: (1) where the police “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, (2) “although having such 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. 115.

[12] Both the applicant and respondent agree that this Charter application concerns the first category of entrapment. The applicant asserts that the police provided an opportunity to commit the offence without the requisite reasonable suspicion.

2. Onus

[13] The onus rests on the applicant to establish entrapment on a balance of probabilities: Mack, at paras. 147-149; Ahmad, at para. 83; R v. Henry-Osbourne, 2021 ONCA 561, at para. 37; R. v. Ghotra, 2020 ONCA 373, at para. 18 citing R. v. Ahmad, 2018 ONCA 534, at para. 31.

[14] A finding of entrapment is reserved for the “clearest of cases of intolerable state conduct” and should only be granted in the clearest of cases: Mack, at paras. 75, 147-149; Zakos, para. 28.

3. Reasonable Suspicion

[15] I am guided by the following law governing the concept of reasonable suspicion:

1. Reasonable suspicion is “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds”: (See R. v. Chehil, 2013 SCC 49, at para. 26, citing R. v. Kang-Brown, 2008 SCC 18, at para. 75. [Chehil]).
2. The judicial inquiry contemplated by the reasonable suspicion standard mandates a meaningful review of the factual circumstances asserted by the police: Ahmad, at para. 24.
3. This “robust standard” is evaluated with consideration of the “totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny”: Chehil, at para. 3; Ahmad, at paras. 45-46.
4. The judicial inquiry demands consideration of the “constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation”: Chehil, at para. 29.
5. The inquiry must be “fact-based, flexible, and grounded in common sense and practical everyday experience”: Chehil, at para. 29.
6. The reasonable suspicion standard engages the “reasonable possibility, rather than probability, of crime”: Chehil, at paras. 27-28, 32, 35.
7. Reviewing judges must not conflate reasonable suspicion with the more demanding reasonable and probable grounds standard: Chehil, at para. 27.
8. The “constellation of objectively discernible facts” providing the police with reasonable cause to suspect that a crime is being committed must be sufficiently individualized to a contextualized particular target (e.g., person, intersection, or phone number): Ahmad, at paras. 46-48.
9. A reasonable suspicion need not be the only inference available from the constellation of factors: Chehil, at para. 32.
10. The police are not required to investigate exculpatory, neutral, or equivocal information, but these factors remain relevant to the assessment of reasonable suspicion: Ahmad, at para. 47.
11. The constellation of factors need not be unlawful behaviour or evidence of specific criminal acts, but the objective facts must “point to particularized conduct of particularized evidence of criminal activity” to ground the reasonable suspicion: Chehil, at para. 35.
12. The reasonable suspicion standard strikes a balance between the liberty interests of persons in our society and legitimate law enforcement investigation interests: Ahmad, at paras. 38-39.
13. The reasonable suspicion standard requires the police to disclose the basis for targeting criminality such that a court may independently evaluate the objectively discernable facts: Ahmad, at paras. 25-26.
14. In the context of entrapment, the reasonable suspicion standard communicates to police officers the need to obtain objective evidence and the need to be sensitive to information detracting from grounds, before offering an opportunity to commit a crime: Ahmad, at para. 30.
15. In the particular context of drug trafficking “dial-a-dope” investigations the reasonable suspicion standard requires: i. a balancing of individual privacy interests that persons have in their phone against arbitrary state intrusion: Ahmad, at para. 40. ii. the police to develop a “reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime”: Ahmad, at paras. 40-42. iii. individualized reasonable suspicion “in the sense that it picks an individual target – whether a person, an intersection, or a phone number – out of a group of persons or places”:(See Ahmad, at para. 48 and also R. v. Li, 2020 SCC 12, at para. 2.) iv. close examination of CHS information to determine if the detail provided is compelling, credible, and corroborated because a CHS tip “devoid of predictive information cannot meet the reasonable suspicion standard”: Ahmad, at paras. 50, 53. v. corroboration of the CHS-sourced assertion of illegality, and not merely the identification of a person: Ahmad, at para. 50.

B. Procedural and Evidentiary Considerations

[16] This application was conducted on the basis of an agreed statement of fact. The professionalism exhibited by counsel should be encouraged by the court. But it is important to recognize that agreed statements of fact often lack the fine detail inherent in viva voce evidence. Consequently, an application judge must engage the tool of reasonable inference.

[17] For example, the agreed statement of facts does not explicitly set out that the applicant possessed the target phone number. Nor does the agreed statement of facts explicitly set out that it was the defendant who received the November text offer from DC Khan. In this regard, it is important to note that the agreed statement of fact sets out information about a second person who was a party to the trafficking offences. This was not an oversight or deficiency on the part of applicant’s counsel eroding the foundation for the claim of entrapment. I agree with counsel for the applicant that the fact that the applicant possessed the target phone and received DC Khan’s November communication is necessarily and reasonably implied by the admitted facts on the application.

[18] By way of additional example, the agreed statement of facts does not explicitly say that DC Khan subjectively endorsed the fruits of DC Berry’s investigation as indicative of drug trafficking. Nor does the agreed statement of facts contain an explicit statement that DC Khan subjectively believed that he possessed reasonable suspicion in advance of his November text response. Again, DC Khan’s endorsement of DC Berry’s investigation is necessarily implied by his conduct described in the agreed statement of facts. [^1] Further, the validity of DC Khan’s reasonable suspicion – the ultimate issue on this application -- is implied by the respondent’s submissions. The ultimate resolution of this issue was appropriately left for the application judge by the parties.

C. The CHS Tip and the April Text Messages

[19] Both the applicant and respondent agree that the CHS tip alone was insufficient to furnish sufficient foundation for reasonable suspicion. I agree. It is apparent that DC Khan could have conducted a further investigation into the CHS information independent from the investigation produced by DC Berry. DC Khan did not engage in any independent investigation for the purpose of corroborating the CHS information. There is no evidence that he spoke directly with DC Berry. There is no evidence that he spoke with the CHS handler. There is no evidence that he turned his mind to the currency of the CHS information given the passage of time.

[20] While further investigation by DC Khan could have conceivably enhanced his reasonable suspicion, I find that his failure to conduct these investigations did not rob him of a foundation for a reasonable suspicion. I find that the April text communications provided both modest corroboration for the information provided by the CHS tip and additional information relevant to the asserted reasonable suspicion.

[21] First, it is clear that DC Khan did not compose his November response to the applicant’s communication in haste. DC Khan took some time to review the communications between DC Berry and the target phone number as evidenced by the timing of his text response the following day.

[22] Second, the record supports a finding that that DC Khan accepted and relied upon the investigation performed by DC Berry. [^2] Put another way, there is no evidence that DC Khan subjectively perceived DC Berry’s investigation to be deficient or devoid of any worth even though it had not borne fruit in the form of arrests. I find DC Khan was entitled to rely upon DC Berry’s investigation: Ahmad, at para. 82.

[23] Third, the April [^3] text communications contain references to drugs, drug slang, and drug trafficking. Even the applicant appropriately concedes this point. Objectively speaking, the messages document a drug trafficking investigation that did not culminate in an arrest of any person. As it concerns the foundation for reasonable suspicion, I may reasonably infer that DC Khan also viewed DC Berry’s interaction with the target phone number identified by the CHS as supportive of drug trafficking efforts.

[24] Fourth, the CHS information detailing that the dealer operated in Brampton, sold heroin and crack, and used the target phone number, was supported by the content of the April text communications.

[25] Fifth, while the April text communications reference a “Bobby” rather than an “Aaron”, this is not significant. While I acknowledge that DC Khan is not entitled to ignore neutral or contradictory information in forming his reasonable suspicion, I agree with the respondent’s analysis and submission that “Aaron” was at least partially corroborated by the text communications in January 2019. [^4]

[26] Further, the facts to not specifically address what DC Khan thought about the name disparity. As such, I must resort to reasonable inference based on the totality of the record. There is no evidence of DC Khan’s experience as a police officer at trial. Nevertheless, I am aware that he is a “Drug Squad Officer”, as opposed to, for example, a uniformed police constable assigned to a traffic enforcement unit. On this application, I may attribute to a “Drug Squad Officer” a modest and limited understanding of the police investigation of drug trafficking. Even crediting DC Khan with the most basic generalized knowledge for the purposes of an application, I am confident that he would not have been perturbed by alleged drug traffickers perhaps using aliases. I am also confident that a “Drug Squad Officer” would not be surprised if a typical “dial-a-dope” type operation engaged more than one participant (i.e., targets may not be static).

[27] Sixth, the applicant submits that it is important that the April text messages did not result in a consummated drug deal despite DC Berry’s investigative efforts. It is submitted that DC Berry believed he was “burned” and did not further engage the target. The applicant argues that this weakens the assertion of reasonable suspicion dependant on these factors.

[28] There is no evidence that DC Berry subjectively believed he was “burned”, and as a result of this subjective belief concluded that he no longer possessed a reasonable suspicion. The admitted facts do not support this conclusion by way of reasonable inference either. It is evident that the “Sheldon” conversation conceivably could have caused prospective drug traffickers to be cautious. It is also possible that the police text message on April 18 at 10:26 PM was meant for a different audience and alerted persons associated to the target phone number that an investigation was occurring. Whatever the circumstances, the failure to consummate a drug deal did not rob the April text messages of their content or significance. This record was still available for consideration by DC Khan in furtherance of reasonable suspicion.

[29] Finally, I may infer that DC Khan took note of a rather obvious feature of the April and November communications – that they involved (what I term) “broadcast messages” comingled with the drug-related communications.

D. Temporal Nexus: Broadcast Messages

[30] The applicant submits that the 202 day temporal gap between the April and November communications erodes the foundation for any reasonable suspicion attributable to DC Khan. The applicant submits that:

1. The CHS was “stale”;
2. There was no evidence that DC Khan conducted additional investigation;
3. There is no evidence that DC Khan consulted with DC Berry or the CHS handler; and,
4. There was no reasonable basis for DC Khan to expect that the target phone number was still being utilized by those who engaged in conversation with DC Berry in April.

[31] I agree that the law of reasonable suspicion requires consideration of the timeliness of the foundational facts asserted in support of reasonable suspicion. Nevertheless, on the entire record, I find that there was a sufficient nexus between the April and November communications. The circumstances afforded DC Khan a reasonable suspicion that the target phone number was still engaged in drug trafficking. There are several reasons for this finding.

[32] First, a significant feature of the April text communications concerns the inference, from the tone and context, that on occasion, person(s) associated with the phone number broadcast a message to a group of contacts. [^5] It is significant that the initial November text message conveyed by the applicant also contained a broadcast message to a group of contacts. [^6] While there is no evidence of the identity or number of the contacts located on the applicant’s phone seized by the police, the messages themselves do not appear to have a singular destination. They were initiated by person(s) associated with the target phone number. No particular person is referenced in the content of the communication. It may be reasonably inferred that these messages were conveyed to more than one person at the same time. This is why I use the phrase “broadcast messages”.

[33] Second, it is also apparent, as further support for the “broadcast message” finding, that there was an acknowledgement by a person or persons associated with the target phone number in the April communications to saving a contact. One could infer that one purpose of saving a contact was for the purpose of future marketing through broadcast communications. [^7]

[34] Third, the April communications and the November communication contain a common reference to the person being “on roads”. While this is common language and not a unique signature phrase, the fact that this phrase is uttered in both sets of communications is available for consideration along with all of the other factors. [^8]

[35] Fourth, there were gaps in communication in the January to April communications. [^9] So a gap in communication between April and November was not an extra-ordinary or unusual event.

[36] Fifth, the unsolicited November communication initiated by the applicant suggested an excuse or reason for the lack of communication – some difficulty with the phone.

[37] Sixth, there is no evidence on this application that the CHS information had become unreliable or “stale”. There is no evidence on this application that the CHS himself or herself had become unreliable. There is nothing in the record to signal a concern such that the police were obligated to corroborate the CHS information anew before proceeding.

[38] DC Berry used the CHS information and produced the April drug-related communications as outlined above. Nothing had occurred to call into question the reliability of that information. The unsolicited November message sent by the applicant provided a nexus between the April text communications and the November communication. I find that DC Khan could reasonably find that the CHS was correct – that person(s) associated with the target phone number were still engaged in drug trafficking.

E. DC Khan’s Subjective Belief

[39] There is no evidence on this application addressing the specifics of DC Khan’s asserted belief – did he believe that there was a single target, or more than one individual? But this is not crucial. Whether he believed one person, or a group were associated with the target phone number, reasonable suspicion may be founded upon factors associated to an individual, a group, or the telephone number itself: Ahmad, at para. 42; Zakos, at para. 12.

[40] I find that it was reasonable for DC Khan to view the target phone number as implicated in drug trafficking. While he had no particularized information as to the person or persons engaged in such activity, he had a solid basis in the record produced by DC Berry to hold a threshold view that the phone number was so implicated. He was not required, as submitted by the applicant, to conceive of any particular person or persons in furtherance of reasonable suspicion.

F. The Policy Rationale for Entrapment

1. The Applicant’s Initiative – Unsolicited Broadcast Communication

[41] It is important to frame DC Khans’ impugned conduct against the policy rationale for the entrapment doctrine rooted in abuse of process considerations.

[42] The parties agree that DC Khan’s November communication constituted an “offer” to the defendant. But it is also clear that the November communication was unsolicited and initiated by the applicant. The target phone number had been saved by DC Berry as “Aaron/Bobby Heroin”. The police were not actively investigating the target phone number in November. The November communication was not stimulated by any police action. One might reasonably infer that but for the applicant’s initiative, DC Khan would not have investigated him.

2. Random Virtue-Testing

[43] The policy rationale for the entrapment doctrine mandates that a Court disassociate itself from conduct such as random virtue-testing because of the deleterious impact on the proper administration of justice. The applicant’s trafficking crime was not a product of random virtue-testing for which reasonable and informed persons would be concerned.

[44] First of all, having received DC Khan’s offer on November 15, 2019, at 4:46 PM, the applicant was prepared to traffic within the same minute as evidenced by his reply to DC Khan at 4:46 PM. The defendant ultimately trafficked in illegal drugs. In order to traffic illegal drugs, one must first decide to possess illegal drugs. In a generic sense, drug trafficking is not an impulsive endeavour. Some level of preparation is required. I may infer that the applicant made a decision to possess illegal drugs, independent of any decision to ultimately traffic in them. The police had nothing to do with the applicant’s decision to possess illegal drugs as a precondition to trafficking.

[45] There is no evidence that the applicant had to canvass for raw materials, suppliers, or delay in order to meet the trafficking need. The applicant must have already had access to a supply of illegal drugs, or he must have possessed illegal drugs as a condition-precedent to trafficking. On the evidentiary record in this case, no one induced the defendant to possess quantities of illegal narcotics as a precursor to committing the trafficking offence.

[46] Second, when considering the issue of random virtue testing, there is no evidence of a peculiar vulnerability on the part of the defendant. For example, there is no evidence that the defendant was a “reformed addict” or an addict-addled trafficker whose independent will was unjustly overborne by the virtue-testing offer provided by DC Khan.

G. Conclusion

[47] In R. v. Ramelson, 2021 ONCA 328, at paragraph 17, the Court captured the historical rationale for consideration of entrapment:

17 Both decisions were authored by Lamer J. (Lamer C.J. when Barnes was written). In Mack, he explained that "the court's sense of justice is offended by the spectacle of an accused's being convicted of an offence which is the work of the state": at p. 942. In Barnes, at p. 459, he stated the following rationale for the "defence" of entrapment:

The defence of entrapment is based on the notion that limits should be imposed on the ability of the police to participate in the commission of an offence. As a general rule, it is expected in our society that the police will direct their attention towards uncovering criminal activity that occurs without their involvement.

[48] I find that DC Khan had a reasonable suspicion prior to replying to the applicant’s November communication.

[49] The circumstances of the offence are important when considering the policy reasons foundational to the abuse of process entrapment doctrine and the prohibition against random virtue-testing. This Court need not stay the proceedings as “manifestation of the court’s disapproval of the state’s conduct” in aide of “the maintenance of public confidence in the legal and judicial process”: Mack, at para. 78. This case does not concern a “work of the state” perpetuated by DC Khan. I sincerely doubt that any reasonably informed member of our society, cognizant of the rationale for the entrapment doctrine, would be offended by DC Khan’s conduct.

[50] The applicant has not established entrapment on a balance of probabilities. The respondent has established that DC Khan possessed a reasonable suspicion that the person(s) engaged with the target phone number were engaged in drug trafficking.

[51] The application is dismissed.

Released: September 8, 2022 Signed: “Justice M.S. Felix”

Footnotes

[^1]: As I will explain in further detail below. [^2]: See paragraph 4 of the Agreed Statement of Facts. [^3]: Exhibit 1 on the application is the complete record of communications from January to April 2019. For the purposes of this ruling, I simply refer to these communications as the “April text messages”. [^4]: See Respondent Factum, paragraph 24(a). [^5]: See April 5, 8:48 PM; April 8, 2:52 AM; April 18 at 2:43 PM, 2:44 PM, and 2:46 PM; April 24, 10:33 AM; April 26 2:56 PM. [^6]: November 14, 6:20 PM. [^7]: See conversation on April 9, 12:53 PM and acknowledgment “Kk bro”, “Done”. [^8]: The chart at paragraph 25 of Respondent’s Factum is accurate and acknowledged. [^9]: For example, January 24 to April 5, 2019.