ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-G9627
DATE: 2015/11/13
BETWEEN:
Her Majesty the Queen
– and –
James Shaver
Accused (Applicant)
Ms. B. Luke and Mr. S. Shaw, for the Crown
Michael Davies, for the Accused (Applicant)
HEARD: October 29, 2015 (at Ottawa)
Ruling re entrapment and further disclosure
C.T. Hackland J.
A – Entrapment
[1] On September 15, 2015, following a six day trial, the applicant, James Shaver, was convicted of three counts of trafficking in a controlled substance, contrary to section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and three counts of possessing proceeds of crime, contrary to section 354(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46.
[2] The applicant submits that he was entrapped by the undercover officer, Detective Fortin, into committing these offences, and seeks a stay of proceedings.
[3] The Crown and Defence are agreed as to the following material facts:
1- On January 17, 2013, Detective David Dewar of the Ottawa Police Service Street Crime Unit received information about potential criminal activity from a confidential informant. Detective Dewar passed on this information to Detective Serge Fortin, another member of the Street Crime Unit. Detective Fortin testified that Detective Dewar provided him with the following information:
a gentleman, uh, that used the name “James” that was, uh, dealing drugs, uh, in the area of, uh, Bank Street and Somerset…apparently morphine and heroin, and that he was using cell phone number 613-700-5684….James was a short white male, uh, who was missing teeth.
At both the preliminary hearing and trial, Detective Fortin testified that he did not know where Detective Dewar had gotten this information, or how recent/stale it was.
2- With this information in hand, Detective Fortin offered to make a cold call to the number to try to arrange a drug purchase. When he made the call, a male voice answered. Detective Fortin testified at the preliminary hearing and at trial that the following conversation took place:
James: “Hello?”
Fortin: “Yo, James, you around?”
James: “Who’s this?”
Fortin: “Jay.”
James: “Jay who?”
Fortin: “Jay, uh, Shinny Mike’s buddy from the clinic on Somerset.”
James: “Oh, yeah, what do you need?”
Fortin: “Down, man, my girl is sick.”
James: “Okay, I got hydromorphs.”
Fortin: “How much milligrams?”
James “200, bro, the best around”
Fortin: “Where you at?”
James: “At the Center, 507 on Bank.”
Fortin: “Okay, I’ll call you when I get there.”
3- Detective Fortin indicated that he made his notes of this conversation over an hour after the cold call. As such, his account was not verbatim, but rather his best recollection, based on his notes.
4- Detective Fortin agreed at both the preliminary hearing and at trial that he raised the topic of drugs into the cold call conversation. For example, at the preliminary hearing, Detective Fortin testified as follows:
Question from defence counsel: Whether it was exactly the words, “Down, man, my girl is sick, or not you were certainly conveying at that point that you wanted to buy drugs off, uh James?
Answer from Detective Fortin: That is correct.
Q: And I take it that’s the first suggestion that you made that you wanted to buy drugs?
A: Yes.
Q: And he had not mentioned drugs before that point?
A: No.
Q: You’re the one that introduced drugs into the conversation right?
A: Yes.
Q: Not him?
A: That is correct.
5- Detective Fortin clarified in re-examination at the preliminary hearing that he had understood James’ question “what do you need?” to mean “what kind of drugs [do you want] to buy?” However, Detective Fortin did not explain why he held this belief. He did not provide any such clarification at trial, and agreed that the word “need” could have been “want”.
[4] In order to establish entrapment, the applicant must prove on a balance of probabilities that the crime he committed was the product of entrapment.
[5] Entrapment exists in two situations:
(i) When police provide an individual with an opportunity to commit an offence without acting on a reasonable suspicion that the individual was already engaged in criminal activity, or without acting pursuant to a bona fide inquiry;
(ii) When police act with reasonable suspicion or in the course of a bona fide inquiry but they go beyond providing an opportunity to commit an offence and instead actually induce the commission of an offence.
[6] The applicant brings his entrapment Application under the first branch, and submits that the police did not have a reasonable suspicion that he was engaged in drug trafficking before asking to buy “down” from him.
[7] The case law establishes that the key question is whether, on the facts of this case, Detective Fortin had “reasonable suspicion” that the accused was dealing in drugs before giving him an opportunity to commit the offence of trafficking in controlled substances, by asking him to sell morphine to him (Detective Fortin).
[8] I understood the Crown to accept, and in any event I find that the information received from the confidential informant did not in itself provide reasonable suspicion that the accused was dealing in drugs. The information provided by the confidential informant as well as the conversation which took place in the “cold call” between Detective Fortin and the accused must be considered together.
[9] The “reasonable suspicion” standard is less than reasonable and probable grounds or belief, but more than mere suspicion. While this standard has been described as “necessarily low”, there must be some “objectively verifiable evidence” to support the reasonable suspicion. Neither a hunch based on intuition gained by experience, nor an educated guess will suffice.
[10] The Supreme Court of Canada in R. v. MacKenzie, 2013 SCC 50, [2013] S.C.J. No. 50 observed that if police do not adequately confirm the tip before making an offer to purchase drugs, the tip will not rise to the level of reasonable suspicion and the offer will amount to entrapment.
[11] In R. v. MacKenzie, the Supreme Court discussed the meaning of reasonable suspicion:
71 Reasonable suspicion must be assessed against the totality of the circumstances. Characteristics that apply broadly to innocent people and "no-win" behaviour -- he looked at me, he did not look at me -- cannot on their own, support a finding of reasonable suspicion, although they may take on some value when they form part of a constellation of factors.
72 Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
73 Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not -- indeed must not -- devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.
74 Parenthetically, I note that there are several ways of describing what amounts to the same thing. Reasonable suspicion means "reasonable grounds to suspect" as distinguished from "reasonable grounds to believe" (Kang-Brown, at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). To the extent one speaks of a "reasonable belief" in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence. As Karakatsanis J. observes in Chehil, the bottom line is that while both concepts must be grounded in objective facts that stand up to independent scrutiny, "reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime" (para. 27).
[12] As noted above, the onus lies with the applicant to show that the state conduct has gone beyond permissible limits to the extent that allowing a conviction would “violate those fundamental principles of justice which underlie the community’s sense of fair play and decency” and there exists a residual discretion in a trial court judge to stay proceedings will only be used “to prevent the abuse of a court’s process through oppressive or vexatious proceedings. It is a power, however, of special application which can be exercised only in the clearest of cases.”
[13] I agree with the defence submission that in conducting a cold call, there is a fine line between when an officer is using neutral language to investigate a tip, and when an officer is effectively ordering drugs. The latter is entrapment if the officer lacks reasonable suspicion. It therefore is crucial to determine when the officer made the offer to purchase drugs; before or after he confirmed the tip.
[14] In determining whether the individual is involved in drug dealing, courts in Ontario have interpreted the following phrases to be general enough for police to ask as part of their investigation of a tip:
“Can you hook me up”;
“Can you help me out”;
“I need product”;
“This guy said (the accused) would link me up”; and
“You good? You around?”
See R. v. Marino-Montero, [2012] O.J. No 1287 (SCJ) and R. v. Ralph, 2014 ONCA 3.
[15] The police were held to have had reasonable suspicion in Ralph, as in the case at bar, a tip was given to police about someone selling drugs from a particular cell phone number. The exchange was as follows:
o Officer: Hello?
o Appellant: You called me and left a message.
o Officer: Yeah, what's going on?
o Appellant: Who's this?
o Officer: [gives his undercover name].
o Appellant: Okay, how'd you get my number?
o Officer: I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up ... I need product [meaning I'm looking to buy drugs.]
o Appellant: Okay, so what are you looking for? What do you need?
o Officer: I need a half [meaning one half of an eight-ball of crack cocaine.]
o Appellant: Okay, the small thing, that's it?
o Officer: Yeah, hard, white [meaning crack cocaine] ... where are you?
o Appellant: I'm at Weston Road. Meet me at Scarletwood.
o Officer: I'll call you back at 7:30. How much?
o Appellant: A bill [meaning $100.]
o Officer: What's your name?
o Appellant: Blacus.
[16] Laskin J.A. writing for the Ontario Court of Appeal in R. v. Imoro, 2010 ONCA 122, at paras. 14-16 heldthat:
14 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.
15 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.).
16 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.
[17] In my opinion, the accused has failed to establish entrapment on the facts of this case. I accept Detective Fortin’s evidence as to what was said in the cold call. I do not see that any offer to buy drugs was actually made in this call. This occurred in two subsequent calls which occurred just prior to the first drug buy. In the exchange quoted previously, I note the following, in particular:
• Detective Fortin’s identification of himself as a drug user (“Skinny Mike’s buddy from the clinic on Somerset”);
• The accused’s remarks “Oh ya, what do you need?” strongly suggests a self-identification as a drug dealer;
• Before Detective Fortin offers to buy drugs, the accused volunteers “…I got hydromorphs”.
To this experienced officer, reasonable suspicion arose from this exchange to justify him in proceeding to arrange a drug buy and in believing the confidential informant’s tip to have been reliable.
[18] In the circumstances, I hold that the accused was not entrapped in the sense identified in the case law and therefore his s. 7 Charter rights were not violated.
Motion for Further Disclosure
[19] In a pre-trial ruling, I dismissed the accused’s Stinchcombe application for further and better disclosure. The motion then before the court and which is now renewed sought to require the Crown to obtain from the police all information concerning the confidential informant, to scrutinize it for relevance, and to produce all of it that was not subject to privilege. Any privileged information, i.e. information likely to identify the confidential informant was sought to be provided to the court for review in a procedure similar to that normally followed on a Garafoli application.
[20] The accused submits that in this entrapment application, the reliability of Detective Fortin’s information derived from the confidential informant goes to the issue of whether he had reasonable suspicion that the accused was dealing prohibited drugs. Therefore, the accused argues, he is entitled to production of all of this information to the extent that it is not privileged.
[21] Crown counsel responds that she has produced all of the information in her possession derived from the confidential informant. Furthermore, it was Detective Fortin’s evidence that he never personally spoke to the confidential informant and had no knowledge of the reliability of the confidential informant or his information. Therefore, any reasonable suspicion based on the confidential informant’s information could only come from the confirmation of that information, obtained in his conversation with the accused.
[22] I decline to reconsider my prior ruling. The accused is attempting a fishing expedition into information the police have declared privileged and in regard to which there is no demonstrated basis to challenge that privilege.
[23] I would distinguish the case of R. v. Lemke, 2015 ABQB 444, relied on by the accused. Lemke was a Garafoli application where information obtained from a confidential informant was referenced in the Information to Obtain (ITO), in relation to the accused’s possession of a firearm, as “possession to commit crimes…” but no such reference was found in the privileged source briefing notes. The motion judge viewed this discrepancy as potentially material to the validity of the warrant and therefore directed the Crown to review the source briefing notes and advise the court either that the referenced phrase was not in the notes, or if it was, whether or not it could be extricated from its content without tending to identify the informer. Lemke dealt with a specific and material discrepancy in a sworn ITO. This does not compare in any way with the general disclosure request concerning further information about the confidential informant which is before the court in this case.
[24] This application for further production is dismissed.
Mr. Justice Charles T. Hackland
Released: November 13, 2015
COURT FILE NO.: 13-G9627
DATE: 2015/11/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
James Shaver Accused (Applicant)
Ruling re entrapment and further disclosure
Hackland J.
Released: November 13, 2015