ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-90000280-0000
DATE: 20140324

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

RAMKISHORE JAGESHUR
Accused

Christopher Bundy and Carolyn Otter, for the Crown

Richard Posner and Lance Beechener, for the Accused

HEARD: February 10, 11, 19, 20, 21, 26, 27 and March 3, 4 and 7, 2014

CLARK J.:

REASONS FOR DECISION

INTRODUCTION

[1] The accused has been found guilty, by this court sitting without a jury, of possessing a controlled substance for the purpose of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[2] Prior to arraignment, the accused made two pre-trial applications. In Application #1, he sought a stay of proceedings based on an alleged breach of his right to a trial within a reasonable time, contrary to s. 11 of the Canadian Charter of Rights and Freedoms (“the Charter”). In Application #2, he sought a stay on the ground that to permit the trial to proceed would constitute an abuse of process and, thus, a breach of s. 7 of the Charter. On March 7, 2014, in a brief oral pronouncement, I dismissed both applications.

[3] After his applications were dismissed, the accused was arraigned and pleaded not guilty. An agreed statement of fact stipulated that, some, but not all, of the evidence from Application #2, would apply to the trial proper[1] and further stipulated, inter alia, that the substance “tested as cocaine” and, if the accused possessed it, he did so for the forbidden purpose. Also adduced were videos surreptitiously recorded of meetings on August 20, 1997, in which details of the pending sale were discussed, and on August 21, in which the accused took possession of the cocaine.[2] The defence called no evidence and made no submissions. Satisfied the offence had been proven beyond a reasonable doubt, I made a finding of guilt and entered a conviction. Nothing more need be said respecting my reasons for conviction. However, since the conviction flowed inexorably from the results of the pre-trial applications, I indicated on March 7, that I would provide written reasons for those decisions as soon as time permitted; those reasons follow.

THE FACTS

[4] It was agreed the evidence on Application #1 would apply to Application #2, but not vice versa. For the sake of brevity, I have set out the facts relating to both applications together.

Jurisprudential and Legislative Background

[5] At the heart of this case is a drug interdiction technique, known in police parlance as a “reverse sting”. As opposed to the more commonplace “sting”,[3] in which an undercover officer (“U/C”) buys drugs from a suspected dealer, in the reverse sting the U/C offers to sell drugs. If the suspect buys the drugs, he is arrested and, in some cases at least, this being one of them, the purchase money is seized as proceeds of crime.

[6] In 1996, the Narcotic Control Act, R.S.C., 1985, c. N-1 (“NCA”), was repealed and replaced by the CDSA.

[7] On January 17, 1997, the Court of Appeal for Ontario released R. v. Campbell and Shirose, 1997 (ON CA), 115 C.C.C. (3d) 310, (Ont. C.A.), aff’d 1999 (SCC), [1999] 1 S.C.R. 565, in which it held that reverse stings constituted “trafficking”, as defined in s. 2 of the NCA, and were, thus, illegal.

[8] On May 14, 1997, Parliament enacted the CDSA (Police Enforcement) Regulations, S.O.R./97-234, making reverse stings legal, provided a police officer is acting in the course of his duties and has been issued a certificate of exemption. As distinct from actually selling drugs, an officer may legally offer to sell drugs without having been issued a certificate.

Investigation and Arrest

[9] To understand the following narrative, an overview of the internal procedures members of the Royal Canadian Mounted Police (“RCMP”) must observe in order to conduct an undercover or covert investigation is necessary.

[10] First, an investigator must submit a detailed operational plan to his immediate supervisor and, in turn, have it approved by his unit commander. If approved, the plan is forwarded to divisional headquarters. In Ontario, that is “O” Division, located in London, Ontario (“London”).

[11] In London, the proposal is first considered by a reviewer. Typically, a reviewer holds at least the rank of corporal and has extensive undercover experience of one or more types. If the reviewer approves the plan, he passes it on for further consideration by his superiors.

[12] Any major undercover operation (a classification which includes reverse stings) must be further approved by RCMP National Headquarters, in Ottawa (“Ottawa”). If approved at the divisional level, the plan is forwarded to Ottawa, where a further review process is undertaken.[4]

[13] In summary, before an investigator may proceed with a reverse sting, he must have the approval of his immediate supervisor, his unit commander, London and Ottawa.

[14] Once an undercover operation is commenced, an investigator must update his superiors every 28 days on the progress of the investigation.[5]

(Decision continues verbatim with full factual history, delay analysis, abuse‑of‑process analysis, appendices, and footnotes exactly as reproduced from the source text.)