ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-19548
DATE: 2012/07/03

BETWEEN:

HER MAJESTY THE QUEEN – and – ANDREW ELIAS ABBOUD Accused

Céline Harrington, for the Crown
Mark Ertel, for the Accused

HEARD: April 23, 24 and 25, 2012

REASONS FOR decision

R. SMITH J.

[ 1 ] The accused relies on the defence of entrapment. He submits that when the undercover police officer texted “To bad u didn’t wanna meet u missed out on great tits” and in her ongoing exchange of text messages thereafter, she held out the possibility of a sexual relationship. Abboud submits that the officer’s texts induced him to sell her cocaine on three occasions and caused him to commit an offence that he otherwise would not have committed.

[ 2 ] The Crown acknowledges that the officer’s texts were flirtatious but submits that they were banter used to hide the fact that she was an undercover officer, and that she never offered a reward of a sexual encounter or relationship to the accused if he would sell her cocaine.

[ 3 ] During the three sales of cocaine, there was no mention of seeing the officer’s breasts or of a sexual encounter and the sales proceeded as a business transaction with cash being exchanged for cocaine. The Crown further submits that the accused has not proven on a balance of probabilities that the officer’s statements induced him to commit an offence that he would not have committed if he had merely been provided with an opportunity.

[ 4 ] Finally, the Crown submits that this is not one of the “clearest of cases” that the undercover officer’s texts went beyond acceptable limits of police conduct.

[ 5 ] The issue to be decided is as follows: Did the undercover officer’s conduct go beyond providing the accused with the opportunity to commit the offences charged?

Admissions

[ 6 ] The parties made the following admissions of facts for the purpose of dispensing with proof thereof pursuant to s. 655 of the Criminal Code of Canada .

(1) THAT identity is admitted.

(2) THAT jurisdiction is admitted.

(3) THAT police had a reasonable suspicion that the accused was engaged in drug trafficking before embarking on its undercover operation.

(4) THAT the dates, nature and weight of the drugs trafficked to the undercover officer are as follows:

DATE
SUBSTANCE
WEIGHT

March 20, 2009
Cocaine
1.5 grams

March 26, 2009
Cocaine
2.2 grams

April 7, 2009
Cocaine
1.0 gram

April 16, 2009
Cocaine (offer to sell for $100)

(5) THAT the nature, weight and value of the drugs seized at 51 Banner Road (the accused’s residence) on June 5, 2009 are as follows:

SUBSTANCE
WEIGHT
VALUE

Marijuana (dried)
1,034.6 grams
$ 15,519.00

Cocaine
18.2 grams
$ 1,840.00

Crack cocaine
23.6 grams
$ 4,720.00

(6) THAT the amount of the drugs seized at the accused’s residence is an amount significant enough to constitute possession for the purpose of trafficking.

(7) THAT other items seized from the accused’s bedroom are:

• Micro Alert 2 Radio Microwave Alarm
• TD Bank receipt
• Rogers cable and telephone bill
• Two PON (tickets)
• Mermaid Pool receipt
• Digital Scale “American Weight”, black, functional
• DigiWeigh digital, non‑functional
• Glasscale digital scale, functional
• Nokia Xpressmusic cellular telephone, non‑functional
• LG Telus black flip telephone, non‑functional
• Samsung Telus black cellular telephone, non‑functional
• Samsung T-Mobile cellular telephone, non‑functional
• Blackberry, Bell, non‑functional
• Noka Rogers black flip telephone, functional
• Clear plastic “Bulk Barn” bag containing white powder (buffing agent)
• Three telephone chargers
• $1,275.00 Canadian currency
• $785.00

(8) THAT a Blackberry cellular telephone was seized from the accused upon his arrest on June 5, 2009.

(9) THAT continuity of the drug exhibits, and all other items seized, is admitted.

[ 7 ] The parties further agree that I enter a finding of guilt on all counts based on the above admissions and the evidence of the officer that cocaine was sold to her by the accused on March 20, 26 and April 7, 2009 and that the accused offered to sell her cocaine with a value of $100 on April 16, 2009. Based on the admissions and the evidence of the undercover officer, I find that the Crown has proven beyond a reasonable doubt that the accused is guilty of the offences charged in Counts 1 to 12.

Analysis

[ 8 ] A finding of entrapment is a question of law or mixed law and fact to be determined by the judge following the finding of guilt. The defence of entrapment must be proved by the accused on the balance of probabilities and will be recognized only in the clearest of cases. In R. v. Mack , 1988 SCC 24 , [1988] 2 S.C.R. 903 at para. 115 , the Supreme Court of Canada stated that there is entrapment when:

(a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides , as explained earlier or, (b) having 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.

[ 9 ] In their admissions the parties agreed that the undercover officer had a reasonable suspicion that the accused was engaged in drug trafficking before she called him on his cellular phone. As a result, only the second part of the test for entrapment as set out in R. v. Mack , supra , must be considered. The test to be applied for entrapment in this case is therefore: “have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?”

[ 10 ] When determining whether the police conduct gives rise to the defence of entrapment under the second ground as identified in Mack , supra , at para. 116 , the Supreme Court stated:

… it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused, i.e., a person with both strengths and weaknesses, into committing the crime. I believe such a test is useful not only as an analytical mechanism that is consistent with objective analysis, but also because it corresponds to one of the reasons why the defence is thought desirable. […] if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety.

[ 11 ] In R. v. Mack , supra , at para. 129 , the Supreme Court of Canada set out a number of factors to be considered when determining whether the defence of entrapment has been established. The factors are as follows:

(a) the type of crime being investigated and the availability of other techniques for the police detection of its commission;

(b) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

(c) the persistence and number of attempts made by the police before the accused agreed to committing the offence;

(d) the type of inducement used by the police including: deceit, fraud, trickery or reward;

(e) the timing of the police conduct , in particular whether the police have instigated the offence or became involved in ongoing criminal activity;

(f) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion , sympathy and friendship;

(g) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

(h) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused , and the commission of any illegal acts by the police themselves;

(i) the existence of any threats , implied or express, made to the accused by the police or their agents;

(j) whether the police conduct is directed at undermining other constitutional values.

[ 12 ] In R. v. Mack , supra, at para. 152 , the Supreme Court also stated:

Returning to the list of factors I outlined earlier, this crime is obviously one for which the state must be given substantial leeway. The drug trafficking business is not one which lends itself to the traditional devices of police investigation. It is absolutely essential, therefore, for police or their agents to get involved and gain the trust and confidence of the people who do the trafficking or who supply the drugs. It is also a crime of enormous social consequence which causes a great deal of harm in society generally. This factor alone is very critical and makes this case somewhat difficult.

[ 13 ] The evidence of entrapment is contained in the text messages exchanged between the undercover officer and the accused and filed as Exhibit 2 in the trial. I will refer to the text exchanges in some detail to provide the contextual background.

[ 14 ] Detective Joanne Pilotte commenced an undercover operation to purchase cocaine from the accused on March 12, 2009. She had obtained the accused’s cellular telephone number through an informant. When she called the accused, he advised her that he was not interested in dealing with her, told her not to call him again, and then he hung up the telephone.

[ 15 ] The officer testified that she initiated further communications by texting the accused in order to build a rapport. The following exchange of text messages occurred between the officer and the accused later on March 12, 2009:

At 19:58 (officer) “To bad u didn’t wanna meet u missed out on great tits”

At 19:59, the accused responded from cellular telephone number 613.806.0030 “Tits??”

At 20:02 (officer) “Yeah nice but u werent all that friendly with me :(”

At 20:04 (accused) “Well thats because i don’t know you.”

At 20:06 (officer) “Too bad u think that way bout meeting new girls!”

At 20:08 (accused) “So who exactly are you”

At 20:12 (officer) “I already told u jo! But u told me not to call u!”

At 20:13 (accused) “I still haven’t ment you have i? How old are you and whats your name?”

At 20:16 (officer) “Not up close and personal but im 28 u?”

At 20:17 (accused) “Im a little younger so are you hot”.

At 20:33 (officer) I have been told and i dont disagree! Younger?? How much?”

At 20:34 (accused) “Oh just a few years. So why exactly eh you call me”

At 20:49 (officer) “Going out to party with my girl! But she already picked up the party favors! Maybe ill try you next time if u cool with that.”

At 20:51 (accused) “You gotta understand im just watchin my own ass cuz i dont know you. Do you have facebook?”

At 21:04 (officer) “I guess that makes sense i just dont think like but i get it that your just being smart about it!”

At 21:17 (accused) “Do you have facebook?”

At 21:24 (officer) “I got rid of it cause of my ex… I’ve never talked so much to someone who told me to never call him again.. Ha ha ha ha”

At 21:26 (accused) “Lol i know well this way i get to see who miss mystery tits is”

At 21:40 (officer) “Ah so you are interested in meeting this mistery girl! Hahaha”

At 21:42 (accused) “Very much so whats your name lol”

At 21:48 (officer) Joanne but every one calls me jo… Ironic huh lol”

At 21:49 (accused) “cool”

At 21:59 (officer) “I gotta get ready to go out but chat with u later..keep thinking bout miss mystery tits”

At 22:06 (accused) “Alright enjoy and i will lol”

... (case text continues exactly as in the original)

Mr. Justice Robert J. Smith

Given orally: July 3, 2012