ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-90000130-0000
DATE: 20120323
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Campbell, for the Crown
- and -
ANDRE STUBBS
Katie Scott, for the Defendant
Defendant
HEARD: March 16, 2012
RULING ON ENTRAPMENT APPLICATION
Corrick J.
Introduction
[ 1 ] On December 10, 2011, a jury found Mr. Stubbs guilty of trafficking in crack cocaine and possession of property obtained by crime. Following the verdict, Mr. Stubbs brought an application for a stay of the proceedings on the basis that he was entrapped into committing these offences by the police.
Facts
[ 2 ] The evidence on this application is as follows. In April 2008, Officer Kaszycka of the Toronto Police Services gave a fellow officer, Officer Tracey, a telephone number, and told him that it was associated with an individual that was known to sell crack cocaine. Officer Kaszycka also told Officer Tracey that two names were associated with the telephone number – Corey and Andre Stubbs. Officer Tracey did not know how Officer Kaszycka obtained the telephone number or the other information. Officer Tracey did not do any checks on the number. He had no personal knowledge about Mr. Stubbs.
[ 3 ] On June 3, 2008, Officer Tracey, acting in an undercover capacity, called the telephone number and had the following conversation with the male who answered the phone:
Male: Hello
Tracey: Yo. What’s going on?
Male: Who’s this?
Tracey: It’s [undercover name].
Male: Who?
Tracey: [Undercover name]. Are you around?
Male: Yeah. What you need?
Tracey: A ball.
Male: Yeah.
Tracey: Where?
Male: Anywhere’s good. I’ve got a car.
Tracey: Ok. I’m at work, gimme an hour. Like Rexdale Islington, near Wal-Mart.
Male: Uh. Yeah anywhere’s good.
Tracey: Ok, I’ll call you when I’m closer.
[ 4 ] Mr. Stubbs ultimately met Officer Tracey at Rexdale and Islington that evening and sold him a quantity of crack cocaine for $200.00.
Positions of the Parties
[ 5 ] The sole issue on this application is whether Officer Tracey had a reasonable suspicion that Mr. Stubbs was involved in drug trafficking before providing him an opportunity to commit the offence.
[ 6 ] Mr. Stubbs argues that Officer Tracey offered to purchase drugs without the requisite reasonable suspicion that he was already engaged in criminal activity. He argues that prior to making the telephone call, Officer Tracey did not have a reasonable suspicion because he knew nothing about the source of the telephone number or the information related to it. He also argues that the telephone call was not investigative because Officer Tracey had no information to confirm by investigation, and the conversation was a vague exchange. What Officer Tracey did by making that phone call, according to the defence, was to engage in random virtue testing, which is an improper use of police power according to R. v. Mack (1988), 1988 24 (SCC) , 44 C.C.C. (3d) 513 (S.C.C.).
[ 7 ] The Crown agrees that Officer Tracey did not have a reasonable suspicion to believe Mr. Stubbs was engaged in drug trafficking before he made the call on June 3, 2008. The Crown argues that by placing the telephone call, Officer Tracey was investigating the information he received from Officer Kaszycka. He was investigating whether Mr. Stubbs sold drugs. During the conversation, Officer Tracey formed a reasonable suspicion before providing Mr. Stubbs with the opportunity to commit the offence.
Analysis
[ 8 ] I accept that Officer Tracey did not have a reasonable suspicion that Mr. Stubbs was engaged in drug trafficking before he called him on June 3, 2008. However, the telephone conversation he had with Mr. Stubbs gave rise to a reasonable suspicion before Officer Tracey provided Mr. Stubbs with an opportunity to sell drugs.
[ 9 ] Officer Tracey did not have to have a reasonable suspicion prior to making the phone call. Placing the telephone call did not give Mr. Stubbs the opportunity to sell drugs. It was just a step Officer Tracey took to investigate the information Officer Kaszycka gave him: R. v. Imoro , 2010 ONCA 122.
[ 10 ] Officer Tracey’s question, “Are you around?” was asked to determine whether Mr. Stubbs had drugs to sell. The fact that Mr. Stubbs continued the conversation with a stranger – a conversation that would seem obscure to most people – and his response to Officer Tracey’s question, “Are you around?” gave rise to a reasonable suspicion that he was engaged in selling drugs. Mr. Stubbs demonstrated an immediate understanding of the nature of Officer Tracey’s inquiry. In response to the question, “Are you around?” he said, “Yeah. What you need?” Mr. Stubbs was obviously starting to take an order for drugs.
[ 11 ] A reasonable suspicion was described by Binnie J. in R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456 at para. 75 this way:
"Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
[ 12 ] The conversation Officer Tracey had with Mr. Stubbs, together with the information he received from Officer Kaszycka, prior to presenting Mr. Stubbs with an opportunity to commit an offence was sufficient to provide Officer Tracey with a reasonable suspicion that Mr. Stubbs sold drugs. The opportunity to commit the offence occurred when, in response to Mr. Stubbs’ question, “What you need?” Officer Tracey replied, “A ball”. At that point, Officer Tracey had the requisite reasonable suspicion that Mr. Stubbs was a drug dealer.
[ 13 ] The rationale for the doctrine of entrapment was well described by Justice Sharpe in R. v. Townsend , [1997] O.J. No. 6516 (Gen. Div.) when he said the following at paragraph 41 of the judgment:
The evil to be avoided here as indicated by Mack is whether the conduct of the police creates an unnecessary risk of attracting innocent and otherwise law-abiding individuals into the commission of an offence.
[ 14 ] In my view, the conduct of Officer Tracey did not create an unnecessary risk of attracting innocent and otherwise law-abiding individuals into the commission of an offence. Nothing he said in the telephone conversation he had with Mr. Stubbs would attract an otherwise law-abiding individual into trafficking in drugs.
[ 15 ] Mr. Stubbs has not established entrapment on a balance of probabilities, and the application is therefore dismissed.
Corrick J.
Released: March 23, 2012
COURT FILE NO.: 09-90000130-0000
DATE: 20120323
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – ANDRE STUBBS Defendant RULING ON ENTRAPMENT APPLICATION Corrick J.
Released: March 23, 2012