ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20121129

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

SHANE SILVERTHORN
Applicant

Sobia Virk, for the Crown

John Collins, for the Defendant

HEARD: November 22, 2012

TROTTER J.

[ 1 ] On November 1, 2012, I found Mr. Silverthorn guilty of four counts of possession of narcotics for the purposes of trafficking and one count of possession of the proceeds of crime. Mr. Silverthorn now applies to stay the proceedings on the basis of entrapment, relying on the principles in R. v. Mack (1988), 1988 24 (SCC) , 44 C.C.C. (3d) 513 (S.C.C.). For the following reasons, I dismiss the application.

Factual Background

[ 2 ] The investigation started with a telephone call made by P.C. Jason Gomes of the Toronto Police Service. He was following up on a tip from another officer that Mr. Silverthorn was selling drugs. No evidence was led as to the source, nature or reasonableness of this tip. The Crown acknowledges that, when he made the call, P.C. Gomes did not then have reasonable suspicion that Mr. Silverthorn was involved in drug trafficking.

[ 3 ] When P.C. Gomes called Mr. Silverthorn, the following exchange took place:

Mr. Silverthorn: Hello.

P.C. Gomes: Yo Shawn [sic], you around?

Mr. Silverthorn: Yeah, what you looking for?

P.C. Gomes: A Cuban.

Mr. Silverthorn: Okay, who is this again?

Mr. Silverthorn: Oh, okay, cool, so just a Cuban?

P.C. Gomes: Yeah, how much am I looking at? Can you do four?

Mr. Silverthorn: Yeah, Okay, four is good. Where are you?

[ 4 ] P.C. Gomes testified that the term “Cuban” means seven grams of cocaine and that “four” was a reference to $400. Mr. Silverthorn then asked P.C. Gomes if they could meet near a certain intersection. After a few more phone calls, they met at a gas station a few hours later. Mr. Silverthorn got into the unmarked car driven by P.C. Gomes. Mr. Silverthorn soon became apprehensive about the officer and did not go through with the transaction. As he got out of the car, he was arrested. Several different drugs (including cocaine, heroin and “crystal meth”) were found in the car Mr. Silverthorn drove. He was able to discard another quantity of cocaine while he was handcuffed in the back of the police cruiser. Approximately $1,100 in cash was found on his person.

Discussion

[ 5 ] The elements of the entrapment were discussed fairly recently in R. v. Imoro (2010), 2010 ONCA 122 () , 251 C.C.C. (3d) 131 (Ont. C.A.), aff’d (2010), 2010 SCC 50 () , 263 C.C.C. (3d) 296 (S.C.C.). Referring to R. v. Mack , supra , Laskin J.A., at p. 134, described the two ways in which entrapment may be established:

…[F]irst, when state authorities, acting without reasonable suspicion or for an improper purpose, provide a person with an opportunity to commit an offence; and second, even having reasonable suspicion or acting in the course of a good faith inquiry, the police go beyond providing an opportunity to commit a crime and actually induce the commission of an offence.

As in Imoro , this case falls to be determined under the first category of cases.

[ 6 ] In some ways, the facts in Imoro are similar to this case. Acting on an unconfirmed tip, the investigating officer in Imoro phoned the accused and said “can you hook me up?” The phone call led to a face-to-face meeting, during which the officer saw Mr. Imoro engage in a drug transaction with another person. Mr. Collins, on behalf of Mr. Silverthorn, points to the fact that, in Imoro , reasonable suspicion was easily established by the drug transaction that the officer witnessed. I agree. However, the decision of the Court of Appeal seems to locate the emergence of reasonable suspicion much earlier in the sequence of events. Moreover, the Court of Appeal’s judgment is instructive on what constitutes an opportunity to commit an offence. As Laskin J.A. wrote (at p. 135):

I accept the trial judge's finding that when the officer asked Mr. Imoro, "Can you hook me up?" he did not have reasonable suspicion that Mr. Imoro was engaged in drug trafficking.

However, I cannot accept the trial judge's companion finding that the officer's question provided Mr. Imoro with an opportunity to sell drugs. That view of the evidence mischaracterizes what occurred. This mischaracterization stems from a failure to properly distinguish between legitimately investigating a tip and giving an opportunity to commit a crime : see R. v. Townsend , [1997] O.J. No. 6516 (Gen. Div.) .

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. That opportunity was given later when the officer and his fellow passenger in the elevator were inside Mr. Imoro's apartment. By then, having observed a drug transaction between Mr. Imoro and the other man, the officer certainly had reasonable suspicion - indeed virtually certain belief - that Mr. Imoro was engaged in drug trafficking. [emphasis added]

[ 7 ] While I appreciate the significance of the officer having witnessed Mr. Imoro engage in a drug transaction with someone else, the point from Laskin J.A.’s reasons that I wish to emphasize is that the simple question “can you hook me up?” did not provide Mr. Imoro with an opportunity to commit a crime. Similarly, in this case, the question “You around?” did not provide an opportunity to Mr. Silverthorn to commit a crime. That came later, after reasonable suspicion had crystallized. Other cases have recognized that the question “Are you around?” (or something similar) does not amount to providing an opportunity to an individual to commit an offence: see R. v. Stubbs , [2012] O.J. No. 1639 (S.C.J.) and R. v. Williams , 2010 ONSC 1698 () , [2010] O.J. No. 1324 (S.C.J.).

[ 8 ] Moreover, Mr. Silverthorn’s immediate answer “Yeah, what you looking for?” showed a willingness to engage in what he understood to be a drug-related conversation. While Mr. Collins argues that the conversation was ambiguous, and that there was no expert evidence called to explain the meaning of the word “Cuban” in the context of this conversation, I accept P.C. Gomes’ evidence that this was slang terminology for a specific quantity of cocaine. This did not need to be proved beyond a reasonable doubt (on the present issue); it merely formed part of the constellation of factors that was capable of providing P.C. Gomes with reasonable suspicion.

[ 9 ] In the end, I find that Mr. Silverthorn’s willingness to engage in this drug-related discussion with P.C. Gomes furnished the officer with the requisite reasonable suspicion. Indeed, the crime of trafficking (by offer) was arguably complete at that point in time: see Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 2(1), R. v. Murdock (2003), 2003 4306 (ON CA) , 176 C.C.C. (3d) 232 (Ont. C.A.) and R. v. Harrison , [2012] ONCA 4579. That offence was not the product of entrapment. Nor were the offences that were committed later.

[ 10 ] In his very able argument, Mr. Collins relied heavily on the case of R. v. Gladue (2012), 2012 ABCA 143 () , 285 C.C.C. (3d) 154 (Alta. C.A.), which I acknowledge is, factually, very similar to the case at bar. In that case, the Alberta Court of Appeal agreed that entrapment had been established. However, and with great respect, I am unable to reconcile the reasoning in this judgment with R. v. Imoro , supra , especially with respect to Laskin J.A.’s key holding of what amounts to providing an opportunity to commit an offence. My conclusion is bolstered by the Court of Appeal’s more recent entrapment judgment in R. v. Bayat (2011), 2011 ONCA 778 () , 280 C.C.C. (3d) 36 (Ont. C.A.), in which Rosenberg J.A. said, at p. 43: “The initial contact [in a chat room] was no more than a step in an investigation, the equivalent of a knock on a door.” I would similarly characterize P.C. Gomes’ initial contact with Mr. Silverthorn. The line between simple investigation and providing an opportunity to commit an offence was not crossed.

[ 11 ] Turning to what occurred afterwards, it is important to note that, while Mr. Silverthorn was originally charged with trafficking by offer (in addition to the four counts of possession for the purposes of trafficking and the proceeds of crime count), that charge was subsequently withdrawn at the preliminary inquiry. However, the offences that occurred afterwards were different than the one said to arise from an opportunity provided by the police. With an assortment of drugs in his car, Mr. Silverthorn drove to the location where he met up with P.C. Gomes. On any measure, it cannot be said that the actions of the police provided Mr. Silverthorn with the opportunity to commit the offences of possession of narcotics for the purposes of trafficking and possession of the proceeds of crime. Mr. Silverthorn committed those offences all by himself.

Conclusion

[ 12 ] The facts of this case do not raise the policy concerns reflected in the Supreme Court of Canada’s judgment in R. v. Mack , supra . This was not a case of random virtue-testing of an unsuspecting citizen. Here, the police were properly following up on a tip that Mr. Silverthorn was a drug dealer. That is what the police are supposed to do. With virtually no prompting, Mr. Silverthorn asked the undercover officer what he wanted in the way of drugs, transforming an unconfirmed tip into reasonable suspicion. After making a deal to sell cocaine, Mr. Silverthorn went on to commit other offences, involving cocaine and other drugs.

[ 13 ] For these reasons, Mr. Silverthorn has failed to make out a case for entrapment on a balance of probabilities. The application for a stay of proceedings is dismissed.

TROTTER J.

Released: November 29, 2012

DATE: 20121129

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – SHANE SILVERTHORN Applicant

REASONS FOR JUDGMENT TROTTER J.

Released: November 29, 2012