COURT FILE NO.: CR-15-90000141-0000
DATE: 20151223
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
KEIRON CHARLES
Applicant
David Morlog, for the Crown
Jacob Stilman, for the Applicant
HEARD: November 30, 2015
RULING ON ENTRAPMENT APPLICATION
B. P. O’Marra, J.
OVERVIEW
[1] On October 6, 2013, the applicant sold cocaine to an undercover police officer. The applicant was arrested moments after the transaction. He was found in possession of cash that included the buy money provided by the police. He was charged with trafficking in cocaine and possession of the proceeds of crime. The applicant pleaded not guilty to the two charges. The undercover officer and the officer in charge testified for the crown. The defence called no evidence. I was satisfied that the two offences had been proven beyond a reasonable doubt.
[2] The applicant now seeks a judicial stay of both charges on the basis of entrapment.
THE EVIDENCE
[3] As is often the case where entrapment is alleged, there is little or no dispute as to what the facts are.
[4] On October 6, 2013, Sgt. Brent Johnston provided the following information that he had received indirectly from a confidential source to Officer Daryl Gazey:
(i) an alleged crack cocaine dealer was operating in the west end of Toronto;
(ii) the unknown suspect was referred to as “Noch”;
(iii) the suspect had a cellphone number (647) 406-6794.
Officer Gazey was asked to contact the suspected crack dealer in an undercover capacity.
[5] The information relayed to Officer Gazey contained no further particulars of the suspect. Specifically, he had no information as to the following:
(1) the gender of the suspect;
(2) the race of the suspect;
(3) approximate age;
(4) body build, weight, height.
[6] At approximately 4:24 p.m., Officer Gazey called the cellphone number and had the following conversation:
DC Gazey: Yo you around?
Male: Yeah man, who's this?
DC Gazey: It's D man, you okay to chat?
Male: How did you get my number? Who's this?
DC Gazey: It's D man. I got your digits from Sarah.
Male: Who's that? Do I know you?
DC Gazey: You know that scraggly white bitch with the bad face?
Male: Oh, you mean Sarah from the east end. Hang on a sec. (long pause)
Male: Sarah, the girl with the scar on her face?
DC Gazey: Ya man, she's messed up. She said you'd take care of me, your stuff is solid.
Male: What you need, 3 or 4? (3 meaning street term for crack, 4 for heroin)
DC Gazey: 3 is good.
Male: So hard? How much you need?
DC Gazey: 80 man.
Male: 80 hard?
DC Gazey: Ya.
Male: I can get H too, you need H.
DC Gazey: Nah man, that shit scares me, just hard bro.
Male: Okay, where you at?
DC Gazey: I'm near the subway @ Wilson. I have wheels, I can come whenever.
Male: Come to 2850 Jane St and park by the dumpster at the back. It's right by Eddystone.
DC Gazey: 2850 Jane?
Male: Ya. Come in and go around the back and park by the dumpster and call me when you get here.
DC Gazey: Okay. I'll be about 45 minutes; that okay?
Male: Ya call me when you get here.
[7] At approximately 5:28 p.m., Officer Gazey drove to the rear area of an apartment building at 2850 Jane Street and parked his vehicle. He had a further cellphone conversation with the same person he had called earlier. The other person asked the officer to come into the building. The officer said he could not as he was having car trouble and could not turn his engine off. The applicant came out of the apartment building and got into the front passenger seat of the undercover car.
[8] The applicant handed cocaine to the undercover officer in exchange for $80.00 cash. The officer gave the “take down” signal. As other officers quickly approached the car, the applicant got out and ran away. He was apprehended and arrested after a brief chase.
LAW ON ENTRAPMENT
[9] Where entrapment is invoked by the defence, there should be a "two-stage trial". In the first stage, the trier of fact must determine whether or not the charges have been proven beyond a reasonable doubt. In the second stage, if the accused is found guilty, the judge must consider the issue of entrapment. (See R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903 and R. v. Pearson, 1998 776 (SCC), [1998] 3 S.C.R. 620)
[10] Entrapment does not bring into play the presumption of innocence. It relates to the faulty conduct of the State. Once an accused has been found guilty, the accused alone bears the burden of establishing that the conduct of the crown and/or police amounts to an abuse of process deserving of a stay of proceeding. This standard has been held to arise only in the clearest of cases. (See R. v. Pearson at para 12 and R. v. Mack at paras. 75 and 147.)
[11] In Mack, the Court held that the doctrine of entrapment reflects judicial disapproval of unacceptable or prosecutorial conduct in the investigation and prosecution of alleged crimes. In R. v. Imoro, 2010 ONCA 122 at para. 9, the court summarized the principles that emerged from Mack as follows:
(1) Police must have considerable leeway in the techniques they use to investigate criminal activity. This is especially so in regard to "consensual crimes" such as drug trafficking. Traditional techniques of investigation may be ineffective;
(2) On the other hand, the power of the police to investigate criminal activity cannot be untrammeled. Police should not be permitted to randomly test the virtue of citizens or offer citizens the opportunity to commit a crime without reasonable suspicion that they are engaging in criminal activity. Even worse would be the situation where police would go further and use tactics designed to induce a citizen to actually commit a crime. To allow any of these investigative techniques would affect our notions of decency and fair play.
[12] In Mack, at para. 126, the court struck the balance between these objectives by concluding that entrapment arises in either of two situations:
(a) The authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;
(b) Although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
[13] In Mack at paragraph 152, the Supreme Court held that the drug trafficking business is not one which lends itself to traditional devices of police investigation. It is absolutely essential for police and their agents to get involved in gaining the trust and confidence of people who do the trafficking and who supply the drugs. It is also a crime of enormous social consequence which causes a great deal of harm to society generally.
[14] The basic rule in Mack is that the police may only present the opportunity to commit a particular crime to a person who arouses suspicion that he or she is already engaged in that particular criminal activity. The exception to this rule arises when police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. If such an area is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry. Random virtue testing only arises when the police present a person with an opportunity to commit an offence without reasonable suspicion that (a) the person is already engaged in the particular criminal activity or (b) the physical location with which the person is associated is a place where a particular criminal activity is likely occurring. The notion of being "associated" with a particular area for these purposes does not require more than being present in the area. (See R. v. Barnes, 1991 84 (SCC), [1991] 1 S.C.R. 449 at para 23-25)
[15] In Mack at para 129, the court set out guidelines which are meant to help determine what sort of police behaviours would involve inducing the commission of an offence. I will quote from that paragraph in Mack as follows:
"The presence of reasonable suspicion or the mere existence of a bona fide inquiry will, however, never justify entrapment techniques. The police may not go beyond providing an opportunity regardless of their perception of the accused's character and regardless of the existence of an honest inquiry. To determine whether the police have employed means which go further than providing an opportunity, it is useful to consider any or all of the following factors:
the type of crime being investigated and the availability of other techniques for the police detection of its commission;
whether an average person with both strengths and weaknesses in the position of the accused would be induced into the commission of a crime;
the persistence and number of attempts made by the police before the accused agreed to committing the offence;
the type of inducement used by the police, including deceit, fraud, trickery or reward;
the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
the proportionality between the police involvement as compared to the accused, including an assessment of the degree of harm caused or risked by the police as compared to the accused in the commission of any illegal acts by the police themselves.
the existence of any threats, implied or express, made to the accused by the police or their agents;
whether the police conduct is directed at undermining other constitutional issues.
ANALYSIS
[16] Where entrapment has been established, the only available remedy is a stay of proceedings. In light of those drastic consequences, the court should consider all of the surrounding circumstances to determine whether the police conduct exceeds what is tolerable. The initial words of the undercover officer will be very important but what follows must also be considered.
[17] The applicant submits than an unconfirmed tip from an informer, such as one provided in this case, is not sufficient to give rise to reasonable suspicion. The crown concedes that there was no evidence or information on this trial to find that the tip was compelling, credible or corroborated. Those were the three factors referred to in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 where the police rely on information from a confidential source to conduct a warrantless search.
[18] The initial verbal exchange between an undercover officer and a suspect is an investigative step. It is not a search or detention.
[19] Reasonable suspicion is a lower standard than reasonable and probable grounds to believe. It engages the reasonable possibility, rather than probability, of crime. A hunch or intuition of even an experienced officer will not suffice. See R. v. Chehil, 2013 SCC 49 at paras. 27 and 28.
[20] The confidential tip referred to the nickname “Noch”. There was no mention of that name in the brief exchange between the undercover officer and the applicant. A mention or acknowledgment that he was speaking to “Noch” would have added a layer of confirmation to the tip and enhanced the reasonable suspicion. However, the absence of such a reference is not fatal to the validity of the contact by the police. The role of an undercover officer includes a delicate choice of words when dealing with a suspect. If the officer appears too quick or too determined to confirm information as to identity, the suspect may well terminate the interaction.
[21] The applicant does not allege that the undercover officer acted in bad faith. However, he submits that an absence of bad faith does not amount to good faith, such as to justify the approach taken in this case.
[22] In R. v. Williams, 2010 ONSC 1698, Justice Hill indicated that in assessing whether a police officer had a reasonable suspicion of a suspect’s involvement in criminal activity, it is an error to focus exclusively on whether the state actor had reasonable suspicion at the commencement of a relevant chain of investigatory events. Further investigation may involve direct contact with a suspect in an undercover capacity. See paras. 45-47, also R. v. Benedetti, 1997 ABCA 169 at para. 11.
[23] In R. v. Ralph, 2014 ONCA 3, [2014] O.J. No. 13 (Ont. C.A.), the critical exchange between the undercover officer and the accused by phone was as follows:
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]
Target – okay, so what are you looking for? What do you need?
Officer – I need a half [meaning one half of an eight-ball of crack cocaine]
Target – okay, the small thing, that’s it?
Officer – yeah, hard, white [meaning crack cocaine]
[24] At paragraphs 28-32 of Ralph, Justice Rosenberg agreed with the finding at trial that this was a legitimate investigative step. The response of Mr. Ralph together with the anonymous tip was sufficient to provide the officer with reasonable suspicion and justify the further statements from the officer. That was not a case of random virtue testing and entrapment was not made out.
[25] In R. v. Meech, [2013] O.J. No. 2362 (Ont. C.A.), the police had a conversation with the appellant in which they indicated they were seeking to buy a kilo of cocaine. The appellant offered them two. The court held that by his response the appellant confirmed that he was not being encouraged to do something that he was not otherwise engaged in. The same can be said for the case before me where the applicant offers to sell both cocaine and heroin in response to an offer to buy cocaine.
[26] The initial comments by the undercover officer in the first cell phone contact can reasonably be paraphrased as “I hear you sell drugs”. The immediate response of the applicant was to offer both cocaine and heroin for sale. That evidence is uncontradicted. The applicant chose not to testify either on the trial or on the stay application. The onus is on the applicant to prove entrapment on a balance of probabilities.
[27] The words spoken by the undercover officer were part of a bona fide inquiry and a legitimate investigatory step. The response by the applicant added confirmation to the anonymous source information. When the applicant offered to sell both cocaine and heroin in response to a request for cocaine he was not importuned.
RESULT
[28] The application for a stay based on entrapment is dismissed.
B. P. O’Marra, J.
Released: December 23, 2015
COURT FILE NO.: CR-15-90000141-0000
DATE: 20151223
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
KEIRON CHARLES
Applicant
RULING ON ENTRAPMENT APPLICATION
B. P. O’Marra, J.
Released: December 23, 2015