ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 7775
DATE: 2014-01-07
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW ROBSON
Appellant
Lisa Mathews, for the Crown
Richard Niman, for the Appellant
HEARD: December 20, 2013
The honourable Mr. Justice James W. Sloan
[1] The Appellant appeals his conviction by Mme. Justice J. E. Leroy on December 4, 2012 and subsequent sentencing.
[2] The facts essentially are not in dispute, and are well set out in the judgment of Justice Leroy.
[3] At all material times, the Appellant was a police officer with the Waterloo Regional Police Services (WRPS) and worked in the Cambridge area.
[4] Based on certain information received from police officers within the WRPS, the management of the WRPS was concerned that the Appellant may be a chronic user of marijuana.
[5] The information imparted to the WRPS is set out below:
A. In the summer of 2010, a police officer within the WRPS requested a transfer stating that the Appellant and two other police officers "smoke dope like fiends and have been for a while".
B. There was also information from an anonymous source, which implicated a female bar tender, who worked in the Cambridge area, in selling marijuana to a Cambridge cop.
C. The Appellant had a women’s baseball team picture as his screensaver. The aforementioned female bartender was in the picture, and the same bartender at one time attended at the police station to give the Appellant a sandwich and speak to him.
[6] Because of this information, the management of the WRPS set up an investigation in which they used an undercover female police officer acting as a distraught mother. The distraught mother gave marijuana to the Appellant under the ruse that she had found it where her son and some of his friends had been drinking.
[7] The Appellant refers to this ruse as an elaborate reverse sting. While I don't feel anything turns on it, the method of investigation used in this case, was far from elaborate.
[8] The Appellant who was on duty at the time placed the marijuana in his cruiser, took some information from the “distraught mother” who said she would deal with her son herself and that she just wanted to do the right thing by turning the drugs over to the police.
[9] After obtaining the marijuana from the “distraught mother,” the Appellant returned half of it to the police lockup and kept the other half for himself.
Grounds of Appeal
[10] The Appellant submits that the trial Judge erred by not staying the case because he argues he was entrapped.
[11] The main thrust of his argument is that the police provided the Appellant with an opportunity to commit an offense in the absence of either a reasonable suspicion or bona fide investigation.
[12] The Appellant also argues that this was “random virtue testing” as defined in R v Barnes [1998] 2 S.C.R. 903.
[13] The Appellant also argues that the opportunity to commit an offense, must be distinguished from an “investigative step”. He argues that the reverse sting, with its opportunity to commit an offense, was not an investigative step.
[14] The Appellant also submits, the trial judge's analysis of the opportunity issue in this case, has effectively deprived police officers of the protections of the entrapment doctrine.
[15] I disagree. Based on the careful analysis of the facts by the trial judge and my review of them, the officers in charge of the WRPS had every right to be very concerned and suspicious that one of their own officers may be a chronic user of marijuana.
[16] Not only did the Officers in charge have a right to investigate the Appellant, they had a duty to do so. The Officers in charge had a duty to the public and to uphold the Police Services Act, which includes a code of conduct for police officers.
[17] This was not a random virtue test. While it may be described as a virtue test, it was not at all random. It was very specifically targeted at the Appellant. He was at the time, being investigated for possession of marijuana & misconduct under the Police Services Act.
[18] I agree with the Trial Judge's findings that the conduct of the Officers in charge of the WRPS amounted to no more than a "step in the investigation".
[19] Very simply put, the Appellant received marijuana while on duty and rather than follow the procedures that he was required to follow, he stole half of the marijuana. There was absolutely no inducement offered by the WRPS to the Appellant to do this.
[20] The Appellant argues that the behavior of the WRPS by engineering the reverse sting should result in the stay of proceedings because such conduct would bring the administration of justice into disrepute, I disagree.
[21] I do not find that the behavior of the WRPS on the facts of this case would bring the Administration of Justice into disrepute. In fact it could certainly be argued that the Administration of Justice would be brought into disrepute if the WRPS, based on the information they had, had not immediately launched an investigation into the Appellant’s behavior, including using the reverse sting method of investigation now complained about by the Appellant.
[22] In his factum the Appellant argues that, "On the facts of this case, intentionally putting the drugs in the hands of an officer in a contrived situation is an opportunity to commit an offense and therefore an act of inducing criminal activity. The entrapment doctrine should prohibit this type of scenario; otherwise, officers are left unprotected."
[23] On the facts of this case, I find this submission perverse. Police officers swear an oath to uphold the law. Our society, as we know it, could not function without the essential service, that is provided by police officers. That essential service must be provided in accordance with their oath and the rules of conduct under which Police Services Boards and society expects them to operate.
[24] I therefore find the learned trial judge's reasoning and conclusions eminently reasonable, and I therefore dismiss the Appellant’s Appeal from his conviction.
Sentence
[25] The standard of review on a sentence appeal is one of deference.
[26] The learned trial judge weighed all of the aggravating and mitigating factors. I find nothing harsh about the sentence imposed. This is essentially a breach of trust crime committed by a serving police officer and if anything, it is at the lenient end of the scale.
[27] I therefore dismiss the appeal as to sentence.
J. W. Sloan J.
Released: January 7, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Andrew Robson
REASONS FOR JUDGMENT
J. W. Sloan J.
Released: January 7, 2014