ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1-621771
DATE: 20140415

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LANDON WILLIAMS

David Morlog, for the Crown

Breese Davies, for the Mr. Williams

HEARD: APRIL 9, 2014

TROTTER J.

INTRODUCTION

[1] Landon Williams is charged with two counts of trafficking in crack cocaine and two counts of possession of the proceeds of crime. At the end of the Crown’s case, he acknowledged that the evidence established his guilt on each count beyond a reasonable doubt. He now moves to stay proceedings on the basis of entrapment.

SUMMARY OF THE FACTS

[2] P.C. Christopher Fitkin of the Toronto Police Service (TPS) received a tip from a confidential source that a person by the name of “Jay” was selling drugs in the Queen and Church area of Toronto. P.C. Fitkin was working at 52 Division and decided to pass the information on to the TPS Drug Squad. On January 31, 2011, he sent an email to D.C. Brooke Hewson (a member of the Drug Squad) with the subject line: “Drug Dealer ‘JAY.’” The redacted text of the email said the following:

Hey Brooke,

[redacted sentence]. I have some info as well I was hoping you could try a cold call on. I haven’t been able to get ahold of my source to get a drop name yet but will continue to try.

[redacted one paragraph sentence]

Please find attached a POI package that I put together about the drug dealer.

P.S. He was done by Margetson’s team in 2009.

Thanks Chris

[3] The Person of Interest (POI) package identified Mr. Williams as “Jay.” It included a photograph, a date of birth, a street address where the target dealt drugs (389 Church Street), a description (male black, 6’1”, 150 lbs) and a home address. P.C. Fitkin attached a CPIC print out that contained a prior conviction for possession of a narcotic, as well as an indication that Mr. Williams was then on bail for drug offences. Under the heading, “Source Information”, the document stated that Mr. Williams was a “cocaine dealer” in the area of 389 Church Street and Yonge & Dundas, and provided a telephone number. The document concluded with the following two sentences under the title “Additional Information”:

On June 19th, 2009, WILLIAMS was arrested for trafficking to an undercover officer in the area of Queen Street and Gladstone Avenue.

WILLIAMS plead (sic) guilty to possession of cocaine on 2010/03/04 and received probation.

[4] D.C. Hewson testified that she used to work with P.C. Fitkin. She did not know why he decided to send the information to her. When she received this information, D.C. Hewson made no inquiries of P.C. Fitkin about the reliability of his source. Indeed, she knew nothing of the source. There was no information about whether the source had provided reliable information in the past, whether he/she had a criminal record and whether his information was first-hand or second-hand. She knew nothing of the currency of the information provided by the source or the circumstances in which it was provided. The only check that she undertook was to run the phone number provided through TPS databases. No information was derived from this search.

[5] D.C. Hewson confirmed that she was involved in the arrest of Mr. Williams in 2009 for trafficking in cocaine. He was alleged to be the “back end” in a hand-to-hand transaction with an undercover officer. D.C. Hewson testified at that trial in 2010. Part way through the trial for trafficking, Mr. Williams entered a plea of guilty to simple possession of cocaine.

[6] In cross-examination, D.C. Hewson acknowledged that the last time she dealt with Mr. Williams on the street was in June of 2009, roughly 20 months prior to the investigation in this case. She also confirmed that Mr. Williams had been on bail for drug offences in the meantime, but the charges had been withdrawn. Importantly, D.C. Hewson testified that Mr. Williams did not go by the name of “Jay” in the past. She had no idea how Mr. Williams was connected to the name “Jay.”

[7] The Drug Squad held a briefing on this case on February 11, 2011. It was decided that D.C. Constable Tony Canepa, a 39-year veteran of the TPS, would make the cold call. He was provided with some of the information received by D.C. Hewson: name, telephone number and the nature of the drug. He was shown a photo of Mr. Williams. D.C. Hewson testified that she told D.C. Canepa that she had dealt with Mr. Williams in the past, but she did not go into detail. She did not provide more information to him because “he is quite particular about what he wants to know beforehand.”

[8] D.C. Canepa confirmed the nature of the background information he received at the briefing. He knew it came from a confidential source, but knew nothing of the checks that had been performed to confirm or verify this information. He testified that he did not know whether Mr. Williams ever sold drugs in the past. D.C. Canepa was not interested in receiving more information. As he said: “The less I know, the better. I generally don’t ask questions.”

[9] That same evening, D.C. Canepa called the number he was given. The following conversation took place:

Male: Hello.

Canepa: Jay?

Male: Yeah.

Canepa: You around?

Male: Who is this?

Canepa: It’s Vinny.

Male: Vinny who?

Canepa: Vinny. Jesse from Queen and Jarvis gave me your name…your number. Said you could help me out. I need 80.

Male: Okay. You have to come to me.

Canepa: Okay. Where?

Male: Queen and Dufferin.

Canepa: Okay. It’ll take me a few because I’m at Yonge & Bloor.

Male: Okay, hurry up.

Canepa: I’ll call you when I get there.

Male: Okay. What you want, soft or hard.

Canepa: Hard. Hard buddy.

Male: Okay.

A number of other calls were made as the men arranged the transaction. An exchange of $80 for a quantity of crack cocaine took place that night. Another $80 buy took place on February 22, 2011. It was conceded that the evidence established guilt on all four counts on the indictment.

ANALYSIS

[10] The principles relating to the doctrine of entrapment are well settled. The leading case in Ontario is 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.). In that decision, Laskin J.A. referred to the seminal case of R. v. Mack (1988), 1988 24 (SCC), 44 C.C.C. (3d) 513 (S.C.C.) and explained the two ways in which entrapment may be established (p. 134):

First, 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 a 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 induced the commission of an offence.

[11] Both counsel agree that this case falls to be determined under the first category. Accordingly, I must decide whether, before D.C. Canepa made the first call, he had a reasonable suspicion that Mr. Williams was engaged in selling drugs. If this question is answered in the affirmative, the application must fail, because D.C. Canepa would have been entitled to immediately provide Mr. Williams with an opportunity to commit an offence. If there was no reasonable suspicion at the time, it must be determined whether D.C. Canepa’s words amounted to an investigative step, or whether he went further and provided Mr. Williams with an opportunity to commit the offence of trafficking.

(a) Reasonable Suspicion?

[12] On behalf of Mr. Williams, Ms. Davies argues that the police did not have a reasonable suspicion that Mr. Williams was engaged in selling drugs. She contends that, acting on an unconfirmed tip, the police were acting on mere suspicion, with no objective verifiers. Ms. Davies relies on the framework set out in R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.). While that case addressed the higher standard of reasonable grounds to search, it is helpful in screening for objective markers when applying the reasonable suspicion standard in the context of a confidential tip.

[13] The Supreme Court of Canada has considered the concept of reasonable suspicion on numerous occasions. Recently, in R. v. Chehil (2013), 2013 SCC 49, 301 C.C.C. (3d) 157 (S.C.C.), the Court said the following about this investigative standard (at paras. 3, 27 and 47):

In my view, there is no need to revise the reasonable suspicion standard. It is a robust standard determined on the totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny. As Doherty J.A. said in R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 202, the standard prevents the indiscriminate and discriminatory exercise of police power.

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

An officer's training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer's experience will suffice, or that deference is owed to a police officer's view of the circumstances based on her training or experience in the field... A police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard…. [emphasis added]

See also R. v. Kang-Brown (2008), 2008 SCC 18, 230 C.C.C. (3d) 289 (S.C.C.).

[14] On this record, I conclude that, acting on the unconfirmed tip from the confidential source, none of the officers involved in the investigation on February 11, 2011 had a reasonable suspicion that Mr. Williams was involved in drug trafficking. Nothing was conveyed to D.C. Hewson, or anyone else involved in the investigation, about the reliability of the source or the information that he/she provided. For instance, no information was provided about:

• The source’s criminal history (if any);

• Whether the source provided credible information to the police in the past;

• The circumstances in which the source provided the information to P.C. Fitkin (i.e., gratuitously or in exchange for some present or future benefit);

• Whether the source’s information was acquired through first-hand observations or based on information received from others; and

• When the information was acquired by the source and when it was provided to P.C. Fitkin. The information provided by the source could have related to the 2010 investigation concerning Mr. Williams.[^1]

[15] Moreover, the link between the name “Jay” and Mr. Williams was never established. This may have come from the confidential source; or, P.C. Fitkin might have made the link. I am left to guess. This is important because both P.C. Fitkin (in his email) and D.C. Hewson (in her evidence) appear to have justified their reliance on the tip by reference to the background information associated with Mr. Williams. However, it would have no confirmatory value whatsoever in the absence of a link between “Jay” and Mr. Williams.

[16] Even if I could be satisfied of this link, Mr. Williams’ criminal history is not valuable in the formulation of reasonable suspicion. In Mack, Lamer J. (as he then was) warned against misplaced reliance on a target’s criminal history (at pp. 553-554):

The past criminal conduct of an individual is relevant only if it can be linked to other factors leading the police to a reasonable suspicion that the individual is engaged in a criminal activity. Furthermore, the mere fact that a person was involved in a criminal activity sometime in the past is not a sufficient ground for "reasonable suspicion". But when such suspicion exists, the police may provide that person with an opportunity to commit an offence. Obviously, there must be some rational connection and proportionality between the crime for which police have this reasonable suspicion and the crime for which the police provide the accused with the opportunity to commit. For example, if an individual is suspected of being involved in the drug trade, this fact alone will not justify the police providing the person with an opportunity to commit a totally unrelated offence. In addition, the sole fact that a person is suspected of being frequently in possession of marijuana does not alone justify the police providing him or her with the opportunity to commit a much more serious offence, such as importing narcotics, although other facts may justify their doing so.

There should also be a sufficient temporal connection. If the reasonable suspicions of the police arise by virtue of the individual's conduct, then this conduct must not be too remote in time. I would note, however, that the reasonable suspicions of the police could be based on many factors and that it is not necessary for one of these factors to be a prior conviction. [emphasis added]

[17] In this case, Mr. Williams’ past criminality was significantly dated, occurring 20 months earlier, when he was a young person being prosecuted under the Youth Criminal Justice Act, S.C. 2002, c. 1. He was sentenced for simple possession and not trafficking, although the substance was cocaine.

[18] In all of the circumstances, the lack of information concerning the tip prevents me from properly scrutinizing whether the suspicion the police had on February 11, 2011 was reasonable or not. I have no way of knowing. I am left to trust, without question or the ability to verify, the opinion of P.C. Fitkin, an officer who did not testify at this trial. As Chehil holds, much more is required in these circumstances. Without this information, judicial review is rendered meaningless. I am unable to find reasonable suspicion in these circumstances: see R. v. Marino-Montero, [2012] O.J. No. 1287 (S.C.J.) and R. v. Gladue (2012), 2012 ABCA 143, 285 C.C.C. (3d) 154 (B.C.C.A.), at p. 158.

[19] During the argument of this application, Ms. Davies argued that the focus of the reasonable suspicion inquiry should be on D.C. Canepa and the knowledge he possessed when he called Mr. Williams. Mr. Morlog argued that I should determine whether the investigative team as a whole had reasonable suspicion. While there is little direct authority on point, I would be inclined to focus on D.C. Canepa: see Marino-Montero and R. v. Thornington (2012), 268 C.R.R. (2d) 307 (O.C.J.). However, I need not resolve this issue. D.C. Canepa was operating with less information than most other team members that night – he preferred to insulate himself in this manner. I also find that D.C. Hewson lacked reasonable suspicion in the circumstances by failing to make any inquiries about the tip. Because Mr. Williams had a “past” with the TPS, the team assumed that the information from the source was new or fresh and did not otherwise need to be verified. Failure to do so left this information in the realm of mere suspicion, falling considerably short of reasonable suspicion standard. This limited P.C. Canepa’s investigative options when he called the phone number he had been given.

(b) Investigative Tip or Opportunity to Commit?

[20] The entrapment jurisprudence draws an important distinction between investigating a tip, on the one hand, and providing an opportunity to commit an offence, on the other. Conceptually, the distinction is straightforward. The case law demonstrates that its application tends to involve subtle variations, sometimes leading to apparent inconsistencies.

[21] In Imoro, officers investigated a tip by going to an apartment building where drugs were apparently being sold. When an undercover officer got off an elevator, Mr. Imoro approached him and said, “Come with me.” The officer asked, “Can you hook me up?” Imoro said that he would. Based on this factual foundation, the trial judge found that entrapment had been established. The Court of Appeal disagreed. Writing for the Court, Laskin J.A. said the following 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]

As this passage demonstrates, properly characterizing the actions of the police for entrapment purposes requires careful attention to the details of what was said. I conclude that the words of D.C. Canepa in this case, “I need 80”, uttered almost immediately out the gate, provided an opportunity for Mr. Williams to commit an offence; and which he did. By his agreement, Mr. Williams engaged in trafficking: see s. 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 2(1). His subsequent actions only made his criminality more provable.

[22] In support of my conclusion, I refer to the recent, post-Imoro judgment of my colleague McMahon J. in Marino-Montero. The facts are virtually identical to this case. The same officer, D.C. Canepa, using the same undercover name of “Vinny”, acting on a confidential tip, engaged in the following telephone conversation with the target:

Canepa: Yo.

Male: Who’s this?

Canepa: Vinnie. Is this Q?

Male: Yea. Who’s this?

Canepa: Vinnie. Mike from Yorkville gave me your number. I need 40.

Male: Where are you?

Canepa: Sherbourne and Dundas.

Male: Okay, call me when you get to Sherbourne and Bloor.

McMahon J. found that the statement “I need 40” was an offer to buy drugs from the accused, and not merely an attempt to confirm the tip. It provided the accused with an opportunity to commit the offence of trafficking. See also R. v. Izzard, [2012] O.J. No. 2516 (S.C.J.), in which Frank J. held (at para. 22) that the words “I need six greens” amounted to “a specific drug deal solicitation or opportunity to commit the offence of trafficking in oxycontin.”

[23] The fact that Mr. Williams answered in the affirmative to the name “Jay” was not itself sufficient to confirm the tip: see R. v. Arriagada, [2008] O.J. No. 5791 (S.C.J.), at paras. 24-26[^2]. Moreover, had D.C. Canepa waited for an answer to his first question (“Are you around?”) before immediately pushing ahead with the offer (“I need 80”), it might have made a difference: see R. v. Toy, [2013] O.J. No. 281 (S.C.J.), at para. 16 and R. v. Stubbs, [2012] O.J. No. 1639 (S.C.J.).

[24] In R. v. Townsend, [1997] O.J. No. 6516 (Gen. Div.), Sharpe J. (as he then was), at para. 40, held that it is perfectly reasonable to investigate a tip that involves a telephone or pager number by calling that number and engaging the person in conversation, “provided that this initial contact is used to investigate and confirm information and that no opportunity is offered to the suspect to commit a crime until the point at which the police have grounds for reasonable suspicion.” In this case, D.C. Canepa did not engage in any, general or introductory conversation, designed to confirm the tip. He immediately made an offer to buy a specific quantity of drugs.

[25] In his helpful submissions, Mr. Morlog for the Crown argued that the landscape has changed with the recent decision of the Court of Appeal in R. v. Ralph, 2014 ONCA 3. In that case, acting on a tip, an undercover officer called the accused and, after some discussion about the caller’s name and how he got the accused’s number, said: “I need product.” The accused responded by asking: “Okay, so what are you looking for? What do you need?” The trial judge held that entrapment had not been established.

[26] In dismissing the appeal, Rosenberg J.A. stressed, at para. 2, that “[t]he exact words of the telephone conversation are important for the entrapment issue.” He likened the words “I need product” to “Can you hook me up?” in Imoro and said the following at para. 32:

As found by the trial judge, it was a legitimate investigative step. When the appellant responded as he did, this response together with the anonymous tip was, as found by the trial judge, sufficient to provide the officer with reasonable suspicion and justify the further statements from the officer. This was not a case of random virtue testing and entrapment was not made out.

[27] The distinction between statements such as “I need product”/“Can you hook me up?”/ “Are you around?”[^3] /“Where are you?”[^4], on the one hand, and “I need 80” /“I need 40” /“I need 6 greens”/“I need half a B”, on the other, might appear quite subtle. However, the latter statements, involving requests to purchase a specific quantity of drugs, are more definite and less exploratory. With the former, the possibility of a deal still needs to be explored and developed; with the latter, all the accused needs to say is say “yes.” That is what happened in this case. That is where the line appears to be currently drawn.

[28] Ralph does not purport to alter the analysis in Imoro; it merely applies it.[^5] Based on recent, post-Imoro decisions from judges of this Court (i.e., in Marino-Montero and Izzard), I find that D.C. Canepa provided Mr. Williams with an opportunity to commit an offence. Without reasonable suspicion, it amounted to entrapment.

[29] Lastly, Mr. Morlog submits that, based on first principles, even if I find that D.C. Canepa crossed the line during the first conversation, his subsequent conversations with Mr. Williams provided opportunities for Mr. Williams to back out of the deal, thereby nullifying the entrapment. However, as Ms. Davies responded, in most of the entrapment cases cited to me, multiple conversations took place between undercover officers and accused persons, providing numerous opportunities for abandonment. In this case, and in many others, entrapment crystallized during the first conversation.

CONCLUSION

[30] On all of the evidence, I have determined that Mr. Williams has established entrapment on a balance of probabilities in relation to the February 11, 2011 transaction. Mr. Morlog quite fairly conceded that, if the first transaction was the product of entrapment, I should also stay the charges relating to the second transaction on February 22, 2011. I agree, and all charges on the indictment are stayed.

TROTTER J.

Released: April 15, 2014

COURT FILE NO.: 1-621771
DATE: 20140415

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

LANDON WILLIAMS

REASONS FOR JUDGMENT

TROTTER J.

Released: April 15, 2014

[^1]: I note that, on February 11, 2011, Mr. Williams was bound by a bail condition that prohibited him from being in the area of Queen Street and Church Street, the location at which the confidential source said he was dealing in crack cocaine. Of course, many accused persons breach their conditions of release. However, this fact was not considered by any of the officers in evaluating the credibility of the information they were provided.

[^2]: In that case, the officer’s words, “I need half a B”, were held to constitute an opportunity to commit an offence.

[^3]: See R. v. Silverthorn, 2012 ONSC 6784.

[^4]: See also R. v. Olazo, 2012 BCCA 59, where the words “can you meet me?” and “where are you?” were held to fall short.

[^5]: Mr. Morlog also relies upon R. v. Meech, [2011] O.J. No. 5758 (S.C.J.), aff’d [2013] O.J. No. 2362 (C.A.). The trial judge found that, at the beginning of the call, after the accused said “What’s up?”, the officer said “I am looking for a key.” She held that this did not amount to entrapment, even though the officer did not know anything about the confidential tip. This finding was not appealed to the Court of Appeal. The appeal was dismissed on an issue concerning a material witness warrant.