COURT FILE NO.: 10-90000403
DATE: 20130425
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CURLEW MOULTON
Geoffrey Roy, for the Crown
Heather Pringle, for the Defendant
HEARD: January 7-11, 14-16, February 25, March 7, 2013
TROTTER J.
1. INTRODUCTION
[1] On January 7, 2013, Mr. Moulton entered pleas of guilty to the following charges: (1) conspiracy to traffic in heroin; (2) trafficking in heroin; (3) trafficking in heroin; (4) possession of heroin for the purposes of trafficking; (5) possession of the proceeds of crime; (6) trafficking in heroin; and (7) possession of the proceeds of crime. Mr. Moulton entered not guilty pleas to two counts of threatening death, which have since been withdrawn by the Crown.
[2] The convictions relate to the sale of heroin to an undercover officer. Mr. Moulton admitted the essential elements of each of the offences and I made findings of guilt. He now argues that the proceedings against him should be stayed on the basis of entrapment: see Mack v. The Queen, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903. For the following reasons, the application is dismissed.
2. THE FACTS
(a) Overview
[3] Mr. Moulton engaged in two transactions during which he sold a half kilogram of heroin to an undercover police officer. It is agreed between the parties that the sales were set-up, as was Mr. Moulton, by an individual named Romin Betnovin (“Betnovin”). Mr. Moulton and Betnovin were acquainted through prior business dealings. Essentially, Betnovin had worked for a man, Arash Missaghi (known in these proceedings as “Ara”), who defrauded Mr. Moulton of a large sum of money by encumbering a commercial property that was owned by Mr. Moulton and by misappropriating what were supposed to be mortgage payments. Mr. Moulton had commenced civil proceedings against Ara.
[4] Betnovin eventually had a falling out with Ara, for reasons that are still unclear. After being out of touch for a while, Betnovin contacted Mr. Moulton for the purpose of telling him that he was in possession of documents that might assist Mr. Moulton in his litigation against Ara. At this juncture the stories diverge.
[5] It is Mr. Moulton’s position that, when Betnovin told him about the documents, he also told him that he needed a favour. Betnovin wanted Mr. Moulton to conduct a sale of heroin on his behalf. Mr. Moulton said that he had a moral objection to dealing in heroin but that he did so on this occasion because he wanted the documents from Betnovin. On the other hand, Betnovin testified that, when they met to discuss the documents, Mr. Moulton said that he needed to sell some heroin to pay for his lawyer and he wanted Betnovin to find him a buyer.
(b) Review of the Evidence
[6] It is not my intention to review each piece of evidence in this case. However, there are a number of intercepted conversations between Mr. Moulton and Betnovin that shed light on the true nature of the transactions. But before dealing with them, it is important to say a little about each of these men.
(i) Curlew Moulton
[7] Mr. Moulton is 38 years old and has a youth and adult record containing convictions for drug offences. As a youth, he was found guilty of a firearms offence. Mr. Moulton readily admitted that he had dealt in drugs over the years. However, he testified that he has a moral objection to heroin and claims never to have been involved in the sale of this drug. It is apparently one of three things that he will not involve himself in, in addition to murder for hire and guns (the previous finding of guilt notwithstanding). In cross-examination, Mr. Moulton explained that he saw someone have a bad reaction to heroin years ago. The person was convulsing, with a “stream of black stuff running out of him while vomiting.” However, Mr. Moulton acknowledged that, having seen crack addicted people, he has no moral objection to selling cocaine. Mr. Moulton agreed that, had Betnovin approached him with a view to selling mostly any other drug, he would have had no hesitation. In fact, he has dealt in large amounts of ecstasy and marijuana with Betnovin. In late 2008, he purchased $147,000 worth of ecstasy from Betnovin. However, heroin is where Mr. Moulton draws the line.
[8] Mr. Moulton confirmed that he made a great deal of money selling drugs. He estimated that he has made as much as $500,000 a couple of years. He was confronted with the fact that, in his affidavit in support of a Rowbotham Application, he swore that he only made $65,000-$70,000. Mr. Moulton testified that he stated this amount because it was the salary he drew from his corporation.
[9] In addition to drug dealing, Mr. Moulton had a legitimate business of promoting concerts and dances. A company was created to buy a building, 4243 Steeles Avenue (“4243”), for the purchase price of $2.2 million. Enter Ara. To make a long story short, Mr. Moulton asked Ara to arrange financing. Ara purported to do that, but through a serious of machinations, he ended up effectively transferring the property to himself. Mr. Moulton said he made an initial investment of $1,040,000. Over the course of two years, he made payments totalling $528,000 to Ara, thinking they were mortgage payments. In fact, Ara pocketed the money. Litigation ensued but had to be discontinued, largely because of this case.
[10] Mr. Moulton met Betnovin through Ara. Mr. Moulton thought the two men had mafia connections. He testified that Ara was involved in drug trafficking. He saw Betnovin at Ara’s office. He soon developed a drug dealer relationship with Betnovin.
(ii) Romin Betnovin
[11] Betnovin has a criminal record. In 2009, he was convicted of fraud in relation to his car sales business. He still owes $60,000 to financial institutions as a result of his fraudulent activity. During this investigation, he was serving two conditional sentences. When he testified at trial, he was still on probation. He also has other convictions for dishonesty.
[12] Betnovin described Ara as a fraudster and confirmed that he defrauded Mr. Moulton out of his property. Betnovin denied involvement in the matter and believed it had occurred before he even started working for Ara. However, Betnovin was a named party in Mr. Moulton’s lawsuit concerning 4243. Betnovin testified that, because of the presence of thugs and the police at Ara’s office, he stopped working there. However, in a statement to the police, he told a different story about how Ara ripped off a person and left him with nothing for his family, ruining the lives of his kids. Betnovin said he was disgusted by what he saw and decided to leave. This would be a pervasive theme in Betnovin’s testimony. He was constantly contradicted by reference to his previous statements.
[13] For reasons that are unclear, Betnovin decided to speak to the York Regional Police about Ara. He was eventually put in contact with the Toronto Police Service. He provided documents to the police concerning 4243. It was at this point that he told the police that he knew that Mr. Moulton was involved in drugs. As discussed below, the process began of setting up Mr. Moulton.
[14] It is unclear why Betnovin set up Mr. Moulton. As with Mr. Moulton, Betnovin said he had moral reservations about drugs. Not just heroin. All drugs. As he said, in the club business, he was what drugs did to friends and families. He said: “I just don’t like drugs.” As noted already, Mr. Moulton said he had done drug deals with Betnovin in the past. Betnovin denied this and he denied supplying the heroin in this case. Indeed, Betnovin said that he always thought heroin came in a liquid form.
[15] In the many intercepted communications (some of which are discussed below), I note that Betnovin comes across as very knowledgeable about drugs. He seemed to know a lot about the sale of ecstasy and cocaine, and the colloquial terminology used in drug deals. Betnovin explained that he picked up this information from his club days and not from personal experience in dealing. He said that part of his knowledge came from the movie Scarface. I reject this evidence.
[16] As explained below, Betnovin testified that Mr. Moulton approached him to find a buyer for his heroin. Betnovin could provide no real explanation as to why Mr. Moulton would come to him when he (Betnovin) was not involved in selling drugs. Betnovin said that Mr. Moulton believed that he was a biker, so he probably thought that he knew people who wanted to buy drugs.
[17] Betnovin testified that, by setting up Mr. Moulton, he knew it could be dangerous to him and his family. He acknowledged that the police told him that they would not guarantee his protection, nor did they promise to relocate him. Moreover, he denied receiving any monetary compensation or assistance with terms any criminal charges.
[18] It may never be known why Betnovin set up Mr. Moulton. I reject his explanation that it was due to a moral objection to drugs. The motive was probably financial in nature and related to 4243. Betnovin testified that he was not involved in attempting to acquire this building at anytime. He was flatly contradicted by his statement to the police in which he told them he had attempted to do just that through a company. I suspect that Betnovin was lying to the police and to Mr. Moulton at the same time. His performance as a witness left a lot to be desired. I refuse to rely upon anything Betnovin said that is unconfirmed by other evidence.
(iii) The File and the Deal
[19] Mr. Moulton testified that, in the Spring of 2009, he received a call from his real estate agent, Hansell Patrick, that Betnovin was attempting to get in touch with him. This was confirmed in the evidence of Mr. Patrick. When they got in touch, Betnovin told Mr. Moulton that he had a file that would assist Mr. Moulton in his lawsuit. Apparently it was an electronic file that could demonstrate that Ara had practiced forging Mr. Moulton’s signature in furtherance of defrauding Mr. Moulton out of 4243. Mr. Moulton testified that, if he were to be successful in the lawsuit, he could benefit to the tune of roughly $1.25 to $1.8 million. At that point in time, he was unable to sell the property because it was encumbered as a result of Ara’s actions.
[20] During the initial phone call, the sale of heroin was not mentioned. However, Mr. Moulton met with Betnovin in a parking lot of a commercial building. The men spoke for about 45 minutes. Betnovin said he had a falling out with Ara over a large amount of money. They spoke about the file again. Mr. Moulton testified that he wanted the file in the worst possible way. Betnovin offered to go to Mr. Moulton’s office to authenticate the documents he was prepared to hand over. However, as Mr. Moulton testified, Betnovin was not prepared to do it out of the goodness of his heart; instead, he said he wanted a favour from Mr. Moulton. Betnovin did not reveal what the favour was at that point. Nor did he hand over the file.
[21] Mr. Moulton went away to Jamaica from April 9th to the 22nd, 2009. While he was there, he was shot. He was an innocent bystander. Betnovin contacted Mr. Moulton late in April or early May. The men agreed to meet again in a parking lot. According to Mr. Moulton, at this meeting, Betnovin asked Mr. Moulton to do a heroin sale for him. Mr. Moulton testified that he balked at the idea and told Betnovin that he did not want to get involved with heroin (for the reasons explained above). Betnovin tried to calm Mr. Moulton and said it would be a one-shot deal. At this meeting, Betnovin apparently schooled him on the pricing for heroin. At the end of this meeting, Mr. Moulton had yet to decide whether he would go through with it or not.
[22] Mr. Moulton testified that the men met again about a week later. Betnovin told Mr. Moulton that he had a friend that he wanted Mr. Moulton to sell it to. He did not want the friend to know that he (Betnovin) was doing the sale or had any authority over the drugs. Mr. Moulton suspected that Betnovin wanted him to front the deal because Betnovin had previously ripped off his prospective purchaser. Mr. Moulton was instructed to make it appear that the drugs were his whenever they were speaking on the phone because Betnovin said that others would be listening to their conversations. Mr. Moulton was supposed to repeat the prices Betnovin provided and make it look like Betnovin was merely getting a cut, even though all of the money was really going to Betnovin. Mr. Moulton testified that, at this point in time, he had been thinking about the file continuously. As he said, “I couldn’t stop thinking about it.” But he was apprehensive because he had never sold heroin before.
[23] There was yet another outdoor meeting a few days later when Mr. Moulton told Betnovin that he would do the transaction, but that he was expecting the file in return. Mr. Moulton testified that he believed 100% that the file existed.
[24] Mr. Moulton testified that he got Betnovin to confirm the existence of the file over the phone, in the presence of his lawyer, Adrian Tonello, and his real estate agent, Hansell Patrick. Mr. Moulton said that Mr. Tonello was very sceptical and wrote it off out of hand. Mr. Patrick told Mr. Moulton to be very careful in dealing with Betnovin. Mr. Moulton testified that their advice did not really change his attitude towards the file. He acted contrary to their advice.
[25] Both Mr. Tonello and Mr. Patrick testified. Mr. Tonello is a commercial litigation lawyer who acted for Mr. Moulton in relation to 4243. As Mr. Tonello explained, he was attempting to prove fraud in relation to Ara’s dealings with this building. Mr. Tonello said that he had the evidence he needed to establish liability and did not need Betnovin’s documents. He told Mr. Moulton to stay away from Betnovin because it looked like a set-up.
[26] According to Mr. Moulton, the men met the following week and Betnovin gave him the heroin in a bag. Mr. Moulton took the drugs and stored them in an abandoned car in the underground garage of an apartment building where he used to live.
[27] According to Betnovin, he met up with Moulton and told him that he had documents that could help him. When they had their first face-to-face meeting, he did not give Mr. Moulton the documents because he was not sure if he could do so legally or whether Mr. Moulton could get them through the police by himself. The documents provided evidence that Ara had forged Mr. Moulton’s signature using the program called PhotoShop. Betnovin said that the documents would help Mr. Moulton, but did not think it would get “Ara put away.” However, in his statement to the police, he said just that – that they would get “Ara put away.” He mentioned to Moulton that, if he was successful, he (Betnovin) wanted a commission. Betnovin testified that, even though there were multiple mortgages on 4243, there may have been some money left-over. In his statement to the police, he said the opposite.
[28] Significantly, Betnovin said that, at that first meeting, Mr. Moulton told him that he had a kilogram of heroin that he wanted to sell. Betnovin said that Mr. Moulton suspected that he was a biker and would be able to move these drugs. Betnovin said he would get back to Mr. Moulton. He mentioned it to his handler at the Toronto Police Service, who told him to await further instructions. The police called Betnovin back and he gave a videotaped statement. He agreed to become a police agent. Betnovin contacted Mr. Moulton and said that he had a buyer for the heroin. Of course, it was an undercover officer. Mr. Moulton told Betnovin that he wanted to sell the heroin because he needed the money to pay for his lawyer.
(iv) The Transactions
[29] It is undisputed that Mr. Moulton ended up selling heroin to an undercover officer on two occasions. The first transaction was on June 2, 2009. The second was on June 24, 2009, following which Mr. Moulton was arrested. During this period of time, a number of conversations between Mr. Moulton and Betnovin were intercepted. I review some of the ones that I view as most important on the entrapment issue.
May 28, 2009 – Delivery of a Sample
[30] On this day, Betnovin arranged a meeting with Mr. Moulton and the prospective purchaser, Frank. Frank was Frank Mancusso, a police officer. The purpose of the meeting was to provide a sample of the heroin to Frank. This meeting was completed and was recorded on a bodypack worn by Betnovin. Betnovin testified that Mr. Moulton wanted to speak to him privately and they walked away from the officer, at which time Mr. Moulton vaguely threatened Betnovin in the event that anything went wrong. This alleged threat was not recorded.
[31] At this meeting, Mr. Moulton provided a sample to Betnovin, who in turn provided it to the undercover officer.
[32] Mr. Moulton pointed to a wiretap conversation on June 1, 2009 when Betnovin called him and asked “can I get it done tomorrow or what?” Mr. Moulton said “It’s up to you, man.” Betnovin responded by saying the same thing. During this conversation there is some oblique reference to the two men doing an ecstasy deal. Mr. Moulton relies on this exchange to prove that Betnovin was the driving force behind the heroin deal. I find that it is inconclusive.
June 2, 2009 – The First Transaction
[33] On this day, Mr. Moulton met up with Betnovin and the undercover officer to sell heroin. This was captured by way of bodypack. There are a number of interesting aspects of this discussion. First of all, there is a good deal of talk about Mr. Moulton purchasing ecstasy from the undercover officer. Secondly, it would appear that there was some confusion about the amount of heroin that was to be sold that day. When Betnovin told Mr. Moulton that there was $20,000 in the bag, Mr. Moulton seemed surprised. Mr. Betnovin then said “I told you remember I told you cut it in half. And he’s going to take the other half in a week.” Mr. Moulton testified that he did not recall this. However, the heroin had already been separately packaged in two amounts. At this point in time, it would appear that the undercover officer was holding a bag containing the entire amount of heroin. He suggested that he give Mr. Moulton the other half back at that point. Mr. Moulton immediately said: “Yeah, just give me one. Give me back the other bag, man.” Then Mr. Moulton suggested “Or you just give me some pills for the rest of it, the other half.” This suggestion was rejected, but it is a fact that cuts against Mr. Moulton’s assertion that he was following Betnovin’s instructions.
[34] In cross-examination, Mr. Moulton said that, had he been paid for the other half in ecstasy, he would have replaced the money with Betnovin afterwards. He was unclear on whether he told Mr. Betnovin ahead of time that he was going to switch the deal around in this way. I find that he did not, further pointing to the fact that it was his deal all along.
[35] As the conversation continued, there was some talk about Mr. Moulton getting the rest of the money from Betnovin. But that suggestion was soon rejected. Mr. Moulton testified that he made this suggestion because all of the money was going to Betnovin in any event, so he did not really care how it was left. But the important point of this entire exchange is that Mr. Moulton wanted the balance of the heroin back before he left the first meeting with Frank. This fact suggests that the heroin was Mr. Moulton’s or that he had a real stake in the deal.
[36] I also note that, during this transaction, Mr. Moulton is asked by the undercover officer whether he can get more. Mr. Moulton immediately said, “I can get more” and then “If you want it you can get it…straight up.” This is repeated a number of times. Mr. Moulton testified that he had no intention of selling more heroin and he gave the answer he did because it seemed appropriate to the situation and it would look odd if he said that he could not get more heroin.
[37] Betnovin testified that he provided the money to Mr. Moulton, which was supposed to be $22,500. Betnovin said that he never counted the money and he never came into contact with the heroin, which was passed directly from Mr. Moulton to the undercover officer. Betnovin was unclear on when it was decided that the deal would be completed in two parts. He agreed that Mr. Moulton seemed prepared to leave the second half with a complete stranger, so long as Betnovin guaranteed it. However, he disagreed that he did so because he wanted the file and did not really care because they were not his drugs.
[38] Once the transaction was completed and Betnovin and the undercover officer were driving away, Betnovin asked the officer: “Is it real?” The officer said “It looks real.” If Betnovin was the one who provided the heroin in the first place, there would be no need for him to ask this question.
[39] Later that day, the two men spoke on the phone and Mr. Moulton said that he had counted the money and everything was in order. During this phone call, they discussed how Mr. Betnovin was going get his $5,000 cut. Mr. Moulton offered to give it to him immediately, but Betnovin said he could not meet right then. Betnovin testified that he subsequently met up with Mr. Moulton, who gave him $5,000. He threw it in the back of his truck, which was searched by the police when he returned to the meeting point. In an Agreed Statement of Facts, it is noted that, on June 9, 2009, the police searched Betnovin’s vehicle after he returned from meeting Mr. Moulton. They found $3,950 in $100, $50 and $20 bills. The $20,000 provided to Mr. Moulton on June 2, 2009 consisted of $50 and $20 bills.
The June 9, 2009 Conversations
[40] There are two conversations of significance this day. The first one is initiated by Mr. Moulton and it is very telling. Mr. Moulton raised a concern about pricing. Mr. Moulton pointed out that the entire deal was to be for $45,000, but he had only received $20,000 on June 2, 2009. Mr. Moulton asked Betnovin to collect the other $2,500 from the undercover officer himself. This is significant, because subsequent wiretaps show that Betnovin is supposed to receive roughly $5,000 once the entire amount of heroin is delivered. But Mr. Moulton testified that he had already met with Betnovin and had given him the $20,000 he had received from the front end of the transaction.
[41] Betnovin called Mr. Moulton back 10 minutes later. The entire conversation was about how much money Betnovin was going to make for the entire transaction. It is clear from the conversation that Mr. Moulton is arguing in favour of keeping more of the money himself. It is also apparent that the bulk of the money is flowing to Mr. Moulton and that Betnovin is to receive a small proportion. At one point, Mr. Moulton complained that he is going to be $2,500 short. He instructed Betnovin to collect the $2,500 directly from the purchaser that very day. At the end of the conversation, Mr. Moulton complained that he was attempting to raise money for a new BMW X6. Also, it is also apparent from this conversation that Mr. Moulton is still in possession of the buy money, contrary to how he testified.
[42] These conversations show that Mr. Moulton had a genuine stake in the transaction and that he was not play acting. This undermines his story that he was fronting this for Betnovin. It also goes to the heart of his position that this entire scenario was the product of entrapment.
The June 11, 2009 Conversation
[43] This brief conversation is important. Mr. Moulton initiated this call to Betnovin. As soon as Betnovin answered, Mr. Moulton said: “Make sure that guy has the twenty-five, you know, Tony.” This is a reference back to the discussion on June 9, 2009 concerning the total amount of the deal being $45,000 and having received only $20,000 for the first transaction. If Betnovin was in control of the entire scenario, it would make little sense for Mr. Moulton to initiate this call. To put it rhetorically, if it was not his heroin, why would Mr. Moulton care how much money the purchaser brought with him for the second half of the transaction? Of further significance is Mr. Moulton’s reaction when he is told that the purchaser was not ready to complete the second half of the transaction and just wanted to get together to talk. Mr. Moulton was clearly very irritated, if not angry, about the situation.
The June 19th Conversation
[44] The next conversation of significance took place on June 19, 2009. During this conversation, Mr. Moulton told Betnovin that he was uncomfortable dealing with someone. At one point Mr. Moulton said: “Listen to me. If you don’t want to do it Tony [Betnovin] we don’t have to do this. Do you see what I’m saying. I’m not comfortable with your friend, okay?” The context of the conversation, I find, is about the sale of heroin and it reflects who is in charge, that being Mr. Moulton. Later on, Mr. Moulton said that “I don’t really want to deal with him. I’m not gonna – I’m not gonna front. I don’t want to deal with him.”
[45] Ms. Pringle places great emphasis on this conversation. She submits that it supports Mr. Moulton’s position that he was fronting the entire deal, at Betnovin’s behest. But I find that “front” has a different connotation here. Mr. Moulton told Betnovin that the second part of the transaction could be dealt with by Betnovin getting the money from the purchaser, delivering it to him (Mr. Moulton), at which point he would obtain the drugs. If, as Mr. Moulton contends, he had no financial stake or interest in the drugs, it would make little sense to do things this way. On Mr. Moulton’s theory, he should have been indifferent to letting the drugs go before receiving the money because the drugs were not his. Mr. Moulton denied the suggestion that he was saying that he was not going to “front” Betnovin the drugs for the last part of the transaction and that Betnovin would have to bring the money to him first. When asked why there would be any need for Betnovin to deliver the money first if the drugs were his in the first place, Mr. Moulton simply said: “I don’t know. I’m not sure.”
[46] I find that the use of the term “front” on that date was in reference to providing the drugs to Betnovin to deal with the officer as a go-between on the second transaction, and not as a description of Mr. Moulton’s role in the entire scenario.
June 24, 2009 – The Second Transaction
[47] On June 24, 2009, the back end of the transaction was completed. Mr. Moulton was arrested as he drove away.
(v) Conclusion
[48] The events described above all started with Betnovin’s offer of the files to Mr. Moulton. Of course, Mr. Moulton never did receive the files. What is interesting is that the files are never mentioned during the many intercepted communications between Mr. Moulton and Betnovin. From Mr. Moulton’s perspective, this is strange because, as he said, he thought about the files all the time. The intercepted communications demonstrate that Mr. Moulton is not a shy or retiring individual. He seems to speak his mind. Beyond the heroin deal, he spoke about other things with Betnovin, but never mentioned the files. Mr. Moulton suggested that he spoke about the files while talking to Betnovin on other phones that he used during this time.
[49] Betnovin seemed to suggest that the men did speak about the files, but these discussions were not in the intercepted conversations. He denied that he deliberately avoided speaking about the files while being intercepted because it would have been contrary to his agency agreement, which required that he not hold out any inducement to Mr. Moulton in the context of the heroin transaction. Betnovin admitted that he went “off script” a number of times when he was dealing with Mr. Moulton; that is, he did not always follow the instructions of his handlers. For example, he raised the price of the heroin on his own initiative. He suggested social meetings with Mr. Moulton. In an Agreed Statement of Facts, it is agreed that he was “cautioned” a number of times for this sort of behaviour.
4. ANALYSIS
[50] The only issue to be decided in this case is whether Mr. Moulton’s involvement in the heroin transactions was a product of entrapment. The resolution of this issue does not really turn on the law. In this case, it is a fact-driven issue.
[51] The elements of entrapment were discussed fairly recently by the Court of Appeal 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.
It is well settled that entrapment must be established by the applicant on the standard of a balance of probabilities. Mr. Moulton must convince me that it is more probable than not that the two sales were the product of entrapment: see R. v. Mack, supra, at para. 147 and R. v. Ahluwalia (2000), 2000 CanLII 17011 (ON CA), 149 C.C.C. (3d) 193 (Ont. C.A.), at p. 202.
[52] On behalf of Mr. Moulton, Ms. Pringle argues that both arms of the entrapment test are engaged in this case, but she relies more heavily on the assertion that the police went beyond providing an opportunity to commit the offence and through their rogue agent, Betnovin, ended up inducing the commission of the offences. Mr. Roy for the Crown submits that, despite Betnovin’s questionable conduct from time to time, and his obviously disreputable character, Mr. Moulton’s offending was not the result of entrapment. Instead, he submits Mr. Moulton willingly engaged in the sale of heroin for his own personal reasons.
[53] As an initial step, I accept Ms. Pringle’s submission that the police were responsible for the actions of Betnovin, even if he stepped outside the scope of his authorized role as a police agent. It is submitted that Betnovin should be treated in the same way as if the deal had been orchestrated by a rogue officer: R. v. Mandelman (1997), 1997 CanLII 24673 (AB CJ), 12 C.R. (5th) 191 (Alta. Prov. Ct.) and R. v. Costain, [1999] N.S.J. No. 433 (Prov. Ct.). I agree. However, one must not get carried away with bad character or unlikeable qualities of police agents, as it would be easy to do in this case: R. v. Dew (2011), 2011 MBQB 304, 272 Man. R. (2d) 264 (Q.B.), at para. 10. It is still possible to reject the evidence, or substantial parts of the evidence of the agent, yet still conclude that entrapment has not been established on a balance of probabilities.
[54] This is a case which turns on the special onus and standard of proof that attaches to the entrapment doctrine. Wrapped up in these concepts is the matter of credibility. If Mr. Moulton’s evidence concerning his interactions is accepted, there could be a basis for finding entrapment. However, if his evidence is not believable, there can be no basis for entrapment: see R. v. Dew, supra, at para. 24 and R. v. Cahill (1992), 1992 CanLII 2129 (BC CA), 13 C.R. (4th) 327 (B.C.C.A.), at paras 46 to 48 and R. v. Ahluwalia, supra, at pp. 210-211.
[55] As I have said above, I consider Betnovin to be a highly disreputable individual. His criminal record for crimes of dishonesty speaks for itself. His prior associations with Ara and others in the drug world cause me to approach his evidence with caution. Moreover, even the police had difficulty having Betnovin comply with their directions.
[56] More concerning is Betnovin’s motivation for going to the police in relation to this matter. This is something that was never made clear. Without this important piece of the puzzle, it is difficult to accept Betnovin’s evidence at face value. Accordingly, as I have said, before I accept anything that Betnovin says, I require that it be supported by other evidence. A number of the intercepted communications lend support to Betnovin’s assertion that the heroin deal was Mr. Moulton’s idea in the first place.
[57] There are also many shortcomings in the evidence of Mr. Moulton. He too has a criminal record and has an admitted history and record for selling drugs. Indeed, in the middle of the first half of the transaction, a large part of which is caught on Betnovin’s bodypack, Mr. Moulton tried to make a deal for the sale of ecstasy. This type of behaviour, reflective of a disreputable lifestyle, which arose naturally during the unfolding of the narrative, may be taken into account in assessing Mr. Moulton’s credibility as a witness: see R. v. Teresinski (1992), 1992 CanLII 12816 (ON CA), 70 C.C.C. (3d) 268 (Ont. C.A.), leave to appeal refused 73 C.C.C. (3d) vi. See also R. v. Hogan (1982), 1982 CanLII 3820 (ON CA), 2 C.C.C. (3d) 557 (Ont. C.A.), R. v. Chambers (1991), 1990 CanLII 47 (SCC), 59 C.C.C. (3d) 321 (S.C.C.) and R. v. Cameron (1995), 1995 CanLII 1283 (ON CA), 96 C.C.C. (3d) 346 (Ont. C.A.).
[58] An important peg in Mr. Moulton’s testimony was his assertion that he was reticent to become involved in the sale of heroin because he has a moral objection to selling it, dating back to when he saw someone have a bad reaction to the drug. Of course, Mr. Moulton said that he was prepared to put his moral qualms aside in order to get the documents that Betnovin waved under his nose.
[59] I do not accept Mr. Moulton’s evidence of his moral objection. It is not something that he ever expressed during the intercepted communications. Moreover, it does not make sense against the larger backdrop of Mr. Moulton’s life. Mr. Moulton is an admitted dealer of drugs, including crack cocaine. The damage done to individuals by this drug is enormous, but this seems of no moment to Mr. Moulton. This makes me sceptical that he actually draws the line at heroin.
[60] I accept that the talk about the documents did occur. Even Betnovin admits that this occurred. Mr. Moulton mentioned it to his lawyer. But his lawyer (and his commercial real estate agent) told him to forget about them because they were not needed for the lawsuit in any event. More telling is that mention of the documents is never made during the intercepted communications. I can understand why Betnovin would not raise the issue. But I find it difficult to understand why, if it was the quid pro quo of the deal, Mr. Moulton never brought it up. As he said, he could not stop thinking about it.
[61] More generally, Mr. Moulton’s version of events is not borne out by the intercepted communications. Yes, there are snippets or excerpts, here and there, which tend in his favour. But, overall they do not. As a whole, and with some specific calls noted above, it seems clear that Mr. Moulton has a serious financial interest in the heroin transaction. He is not indifferent to the ultimate pricing and Betnovin’s cut from the deal. Mr. Moulton said that he was play acting because Betnovin said others would be listening in on some of their conversations. I do not accept this explanation.
[62] I accept that Mr. Moulton was anxious to get his hands on the file. But as Mr. Roy rightly observed during his submissions, wanting the file and engaging in the drug transaction for profit are not inconsistent. Mr. Moulton said that obtaining the file was the only reason that he agreed to do the heroin transactions and he was not to receive any money at all for his role. But the record as a whole suggests that Mr. Moulton had a personal financial stake in the transactions. The lack of any of any financial compensation for the sale of heroin was at the core of Mr. Moulton’s evidence. I do not accept it. Rejecting his evidence on this critical point, his story falls apart and his claim fails. I find that he engaged in the heroin transaction, at his own behest, and for profit, perhaps to pay for his mounting legal fees in his civil action. Mr. Moulton was not induced into selling a drug he morally objected to by the offer of electronic files, files that his lawyer said he did not need.
[63] In the end, I am not certain where the heroin came from. It is highly unlikely that it came from Betnovin. Given that he was setting up Mr. Moulton to be arrested, Betnovin knew these valuable drugs would be seized. The evidence points to Mr. Moulton as the original source of the drugs. But, I need not decide this issue to resolve the entrapment issue.
IV. CONCLUSION
[64] Entrapment has not been established on a balance of probabilities and the application is dismissed.
TROTTER J.
Released: April 25, 2013
COURT FILE NO.: 10-90000403
DATE: 20130425
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CURLEW MOULTON
REASONS FOR JUDGMENT
TROTTER J.
Released: April 25, 2013