R. v. Budimirivic, 2016 ONSC 1120

CITATION: R. v. Budimirivic, 2016 ONSC 1120 COURT FILE NO.: CR-09-10948 DATE: 20160212

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Alexsander Budimirovic Defendant

Damien Frost and Daniel Libman, for the Crown Fariborz Davoudi, for the Defendant

HEARD: January 26, to February 11, 2016

RULING ON MOTION

Charney J.:

Introduction

[1] The defendant, Alexander Budimirovic, is charged with trafficking in heroin, possession of heroin for the purpose of trafficking and failing to comply with his recognizance. The date of the alleged offence is November 25, 2009.The defendant pleaded not guilty to all charges.

[2] The defendant does not deny that he agreed to sell 2 ounces of heroin to an undercover police officer on that date. Rather, he takes the position that he had a history of acting as a confidential informant for the police, and at the time of the alleged offence he had been conscripted and was acting as an agent for the police. He alleges that his involvement in the alleged offence was at the behest of the police, and that he was involved in the transaction for the purpose of collecting information that was demanded by the police. In this regard he relies on the exemption set out in s. 4 of the Controlled Drugs and Substances Act (Police Enforcement) Regulation, which I will discuss below.

[3] I have now heard all of the evidence in this case, and the Crown has taken the position that there is “no air of reality” to the defence of acting as a police agent, and the defence should not be put to the jury. As I see it, the central issue is whether the accused has presented evidence upon which a jury, if it accepted the evidence as true, acting reasonably, could acquit the accused on the ground that he was acting “under the direction and control” of a member of a police force when he participated in the trafficking of heroin on November 25, 2009.

Controlled Drugs and Substances Act

[4] The Controlled Drugs and Substances Act, S.C. 1996, c.19 (CDSA) prohibits trafficking in heroin, but provides for several exceptions, including certain police investigations designed to investigate criminal activity. One type of investigation is referred to as a “reverse sting”, in which police officers or police agents pose as sellers of narcotics:

In a reverse sting, police undercover officers offer to sell large quantities of drugs to the target. If the negotiations are successful, the police operatives produce the drugs, give them to the target upon receiving payment and the target is arrested shortly afterwards. (R. v. Jageshur, 2002 45116 (ON CA), 169 C.C.C. (3d) 225; [2002] OJ No. 4108 (C.A.), at para. 7)

[5] The conduct of the police in a reverse sting comes within the definition of trafficking in s. 2 of the CDSA, which includes offering for sale and the actual sale of a narcotic. (Jageshur, at paras. 8 and 9). In order to exempt police investigations from this prohibition, s. 55(2) of the CDSA authorizes the enactment of regulations:

[T]hat pertain to investigations and other law enforcement activities conducted under this Act by a member of a police force and other persons acting under the direction and control of a member

[6] Accordingly, trafficking, even by the police, is exempt from the prohibitions in the CDSA only if it fits within the specific exemptions set out in the CDSA regulations.

[7] The relevant regulation in this case is the CDSA (Police Enforcement) Regulation 97-234, sections 3 and 4, which provide:

3. Street Drugs

A member of a police force is exempt from the application of section 5, 6 or 7 of the Act, as applicable, where the member engages or attempts to engage in conduct referred to in any of those sections that involves a substance other than a substance referred to in any of subsections 8(1), 11(1) and 13(1) of these Regulations, of which the member has come into possession during a particular investigation, if the member:

(a) is an active member of the police force; and

(b) is acting in the course of the member’s responsibilities for the purposes of the particular investigation.

4. Direction and Control

A person is exempt from the application of section 5, 6 or 7 of the Act, as applicable, where the person engages or attempts to engage in conduct referred to in any of those sections that involves a substance, other than a substance referred to in any of subsections 8(1), 11(1) and 13(1) of these Regulations, of which the person has come into possession, if the person:

(a) acts under the direction and control of a member of a police force who meets the conditions set out in paragraphs 3 (a) and (b); and

(b) acts to assist the member referred to in paragraph (a) in the course of the particular investigation.

[8] The requirement of “direction and control” by a member of a police force is found in both s.55 (2) of the CDSA and s.4 (a) of the Regulation. “Direction and control” is an important component of the statutory exemption. Reverse stings that result in illegal drugs like heroin being released into the community or transferred to criminal traffickers may result in serious social consequences (Jageshur, at para.10). Accordingly, the regulation does not exempt persons who decide to “go rogue” and act on their own initiative.

[9] The requirements of subsections (a) and (b) are the essential components of the defence provided by s. 4 of the Regulation. The term “particular investigation” in subs. (b) is defined as:

Particular investigation means a primary investigation conducted under the Act or any other Act of Parliament and includes any investigation that arises from the primary investigation.

Facts

[10] For the purposes of this defence, the accused’s narrative really begins on October 13, 2009, when he was arrested for shoplifting (theft under $500) at a Wholefoods grocery store in Toronto. On arrest he told the arresting officer, Constable Chan, that he had provided information about drug dealers to other police forces in the past. He was hoping to receive lenient treatment by being released in exchange for such information.

[11] Whether this assertion - that he had provided information to the police in the past in exchange for his release - is true, is not relevant to the availability of the defence claimed in this case. The status of being a confidential informant “cannot be used as a licence to commit a crime with impunity” (R. V. A.B., 2015 ONSC 5541, at paras. 3 and 96). It is only what happened on and subsequent to his arrest on October 13, 2009, when he claims to have been conscripted as a police agent, that is relevant to the present charge.

[12] What follows is Mr.Budimirovic’s testimony regarding events commencing with his arrest on October 13, 2009, his conscription as a police agent, and his November 25, 2009 arrest. The issue is whether there is evidence on the record upon which a properly instructed jury, acting reasonably, could acquit on the basis that the conduct of the accused falls within the exemption set out in s. 4 of the CDSA (Police Enforcement) Regulation, and in particular, could a jury, properly instructed, come to the conclusion that he was acting under the “direction and control” of a member of a police force in the course of a particular investigation.

[13] Mr. Budimirovic’s own testimony was the sole source of evidence in relation to his allegation that he was acting as an agent of the police when he was arrested on November 25, 2009. For the purposes of this analysis I must consider the totality of the evidence and assume that the evidence relied upon by the accused is true (R. Cinous, 2002 SCC 29 at para.53).

[14] The summary of his evidence below is an accurate compilation of his testimony, with direct quotes where appropriate.

Mr. Budimirovic’s Testimony

[15] Constable Chan showed no initial interest in Budimirovic’s offer to provide information. Then Budimirovic told Constable Chan that he had information about drugs and guns. When he said “guns” that changed everything. Budimirovic was introduced to a plainclothes police detective. He does not recall whether he was taken there by someone or the detective came to him. Constable Chan was not present at the meeting with the plainclothes detective; he does not remember how he got from Constable Chan to the plainclothes detective.

[16] Budimirovic met privately with the plainclothes detective. He does not remember the detective’s name. The detective’s name does not appear on any of the occurrence report documents or on his bail release paper. The detective and Budimirovic engaged in a conversation. Budimirovic explained to him that he had provided information to the police before. The detective believed him. The detective said:

I have an interest in the guns or hard drugs. That is what my interest is. I have been in this position before where guys like you tell me a story and then I never see them again. I am going to make you a deal. I am going to release you, and you will come to the police station every Friday to report. And you better do what you said you were going to do.

[17] And then Budimirovic was released. He testified: “I got the gist of it, what I was expected to do”.

[18] Budimirovic understood that the detective was not asking for information about the drugs or guns, but wanted him to bring drugs or guns to him. He made a deal with the police detective. He signed an undertaking which required him to report to the police station every Friday between 1:00 p.m. and 4:00 p.m. Budimirovic testified:

The detective said: ‘I’ve been in this situation before’ which I took to mean not to take him for a fool. He was strict and serious, not the kind of guy you want to make look like a fool. I knew that I had to produce either guns or drugs, because I had made a comment to him about drugs and guns. How it was going to happen was not clear to me. He did not ask me for the name of my sources or for any information. The impression I left him was that I was not going to give him any information, just drugs or guns. When he released me I was under the impression that I had to bring guns or drugs. It was not clear or specific what I had to do, I took it upon myself to do what I thought he was saying, and that was clear on the second visit with him when I came empty handed.

I had no idea where to get him guns, or drugs – all I have is a couple of grams. He is not interested in that, I lied to him.

[19] Budimirovic was required to report to the station and ask for the detective. He went to the police station the first Friday (the Friday after his arrest on October 13, 2009 was October 16) and asked to speak to the detective. The detective was not there.

[20] The second time (one or two Fridays later) Budimirovic signed into the police station and asked for the detective. The detective came to get him, and took Budimirovic to the police officer’s change room, waited for a police officer to leave, and the detective said:

What’s going on? It’s been two weeks, I told you not to fuck me around.

[21] Budimirovic responded:

Slow down, take it easy, relax, it’s only been 10 or 11 days, I’m a nickel and dimer, I don’t have access to big drugs, but I promise you I will get you that.

[22] The detective said “I’ll see you next week”.

[23] Budimirovic felt threatened. The conversation lasted 60 seconds. The detective’s body language let Budimirovic know that “if I don’t produce there will be consequences”.

[24] Budimirovic testified that they never had a discussion where the detective asked him to provide information as a confidential informant. He never told the officer that he was a drug dealer or a big time drug dealer.

[25] Following this second meeting with the detective, Budimirovic went to buy heroin at the house where he usually buys drugs in Toronto. He went in his truck with his friend Dave D’Avolio and Budimirovic’s dog. Budimirovic went into the house and was there for about one-half hour. Budimirovic got high. He bought some drugs and put them in his pocket. When he came out of the house D’Avolio was in the driver’s seat with the dog. D’Avolio held out his hand and showed Budimirovic a bag; it was a big bag (baseball size). He had no idea what was in it: “obviously it was drugs, but I did not know what kind”. D’Avolio said, “you took so long I let the dog out for a pee and it sniffed out this bag in front of the drug dealer’s house”.

[26] Budimirovic’s testimony continued:

So here we are in front of the house with a big bag of drugs and I said put those drugs back where you found them. I smacked him as hard as I could. He said relax man; use these drugs as a patch for that police officer downtown. When he said that I relaxed for a minute. He put the vehicle into drive and we sped off. We did not go 50 meters when I looked down and my phone was ringing. It was the drug dealer. I did not answer it. Then they texted me: ‘We know that you had nothing to do with it, because you were in the house, but Alex tell your buddy to bring the drugs back’.

[27] Budimirovic just wanted to get out of the vehicle. He had no conversation with the drug dealers but they kept calling him.

[28] Once Budimirovic and D’Avolio got home (they lived together) D’Avolio went into his room with the drugs. Budimirovic testified that he and D’Avolio were using the drugs daily: “I used some on a daily basis; my girlfriend was going out of her mind.”

[29] Budimirovic’s testimony continued:

Now Dave is hesitant on me. I said help me out here, show me the drugs. We went to the police station the next Friday (November 13 or 20). I am with D’Avolio and Pat Reda. I go in to report, I bring the drugs into the police station, I am going to give them to the police detective, and the police detective is not there. I go back out to my truck (Dave and Pat are in the truck with me) and I call the police officer on my cell phone.

[30] Budimirovic had the detective’s personal or direct number. Budimirovic was on speaker phone, and he said to the detective: “If something were to fall off the back of a truck like 2 or 3 ounces of heroin, would that clean all of this up?”

[31] Budimirovic testified: “And he [the detective] says listen you fucking punk, I don’t want just the drugs or the guns, I want the people that come with them”. Budimirovic said that the detective stated: “I want both; one’s no good without the other”.

[32] For the first time Budimirovic understood that the detective wanted the drugs and the people that go with the drugs, “As soon as he says that I hung up the phone.”

[33] That was the last time Budimirovic ever spoke to the detective.

[34] Budimirovic testified :

That was not the deal that I had made with the police officer. So I hung up the phone, I turn to Dave and I say get these drugs out of my house – I don’t care if you are on bail, I can’t get clean if there are drugs there. We are using this heroin every day.

[35] In his cross examination regarding this incident, Budimirovic gave the following answers:

Q. Before you hang up on the detective, do you say to him: I’ve got these drugs. What am I supposed to do with them?

A. He already told me what he wanted me to do with them. He made one statement. He wanted the drugs and the people. I wasn’t going to do that, not those people anyways. My ex-girlfriend, and that house I know where those drugs come from, that means I have to bring those people with those drugs. That wasn’t going to happen, I have the phone. At that point I made the decision, I’ll deal with these problems with the police officer in my own way, I’m done with this.

Q. The people that went with the drugs were you, Mr. D’Avolio, your drug dealer ex-girlfriend who was living in Toronto. So you could have solved the whole problem right then and there, you could have said I’ve got the drugs, and here is the information you need. I’ve got them, D’Avolio found them, they came from my drug dealer ex-girlfriend. Job done?

A. That would be suicide. The dealers would know I gave him the information. The officer didn’t tell me anyone specific. As long as it was hard drugs, or guns, there were no specific instructions, mandate, job description. I figured it out for myself.

[36] After he hung up on the detective, Budimirovic testified that he started to drive home:

Dave is begging me to slow down, give me a couple of days and I promise you I will get rid of this shit. Three days go by and we go to the methadone clinic. Dave comes up to me with another guy, and I say get away from me. We are driving back and Dave says – buddy the drugs are gone, I made a deal, that guy is going to buy it all. I say Dave leave me alone. I tell my wife, the drugs are gone – Dave made a deal.

[37] At this point Budimirovic testified about his conversations with undercover officer Salhia who telephoned his house asking to buy drugs. Budimirovic did not know that Salhia was an undercover officer in any of these conversations.

Next day the phone rings and Dave passes the phone to me and insinuates that it is the guy from yesterday. I don’t know if Dave spoke first. What that officer [Salhia] testified to is 98% true. But he said he did not use drugs, he was just a buyer.

[38] Budimirovic agreed that he had all the phone calls with undercover officer Salhia, but:

I was simply there to make sure that the deal was real, that the person was who he said he was, there was going to be a second transaction, and that transaction was going to involve the police.

[39] Budimirovic’s testimony continued:

I’ve already had two bad incidents [with the unnamed detective]. The first where I go to the police station, the second where I have drugs, a lot of drugs, heroin, and he does not want them. The last thing I want to do is engage that police officer with anything untrue. I want to make sure that the deal is real. If I am going to do a 2 ounce heroin deal with someone I don’t know I am feeling uncomfortable about that.

[40] Budimirovic agreed that he told undercover officer Salhia that he didn’t want to sell just a $150 “sample” but wanted Salhia to “make it worth my while”.

[41] Budimirovic offered to sell Salhia one-half ounce for $1,000 because:

I wanted to get them [the heroin] out of the house, I wanted to entice him to buy more, it was cheaper than the going rate. I hoped there would be a second deal to set him up for the police officer.

[42] Budimirovic negotiated the price and the amount ($4,500 for two ounces of heroin) and the place for the deal with undercover officer Salhia.

[43] Budimirovic testified:

D’Avolio owns the drugs, he is holding the drugs, I was there to make sure Dave does not get robbed, I was there to make sure who this guy was, if he was going to buy two ounces once, he would buy two ounces twice, but Dave was going to actually sell the drugs.

[44] While D’Avolio was holding the drugs when they drove to meet the undercover officer and sell the drugs, Budimirovic testified: “I was working on the assumption that there was heroin in the Red Ford Ranger truck, 100%”.

[45] Budimirovic got out of the car and called Salhia on the cell phone, they met and Budimirovic wanted to get into Salhia’s car to talk to him. It was at this point that Budimirovic was arrested standing outside of the front passenger seat of the car.

[46] Budimirovic was asked on cross-examination why he did not contact the unnamed detective to provide the information regarding his telephone conversations with undercover officer Salhia, who he thought was a drug dealer about to purchase 2 ounces of heroin:

Q. After negotiating the deal at 6:45: the meeting place, the time, the price, the amount of heroin, with Salhia, why don’t you try to contact the detective at TPS to alert him that the deal is about to take place in case he wants to know about it, ask for direction or advice?

A. I want to be certain that the person I am going to meet is going to buy two ounces of heroin.

A second point; D’Avolio is not going to get his money. Think about that one. If I phone the police officer there is not going to be a drug deal, the drugs are going to be gone and Mr. D’Avolio is not going to get his money. So you kill two birds with one stone. Mr. D’Avolio is going to get his money, I make a contact for two ounces, it is real. If he buys two ounces once it is good because he is going to buy it again. And then I would phone the police officer and say: hey, I have somebody. I made a decision, I didn’t make the phone call because I didn’t have to, it was my choice how I wanted to set up the deal. That was my choice

Q. You’re making the decisions in relation to the deal, your agreeing to the amount, your agreeing to the price, you worked the deal?

A. No,no, there is a four hour span that I have time to speak to D’Avolio, he is making the decisions, not me.

Analysis

[47] The Supreme Court of Canada has confirmed that “a defence should be put to a jury if and only if there is an evidential foundation for it” (Cinous, para. 50). The Court has established the following test before a defence is put to a jury:

The test is whether there is evidence on the basis of which a properly instructed jury acting reasonably could base an acquittal if it believed the evidence to be true…Before putting a defence to the jury, it is the trial judge’s duty to ask …whether there is evidence that is reasonably capable of supporting an acquittal. This requires an assessment of whether the evidence relied upon is reasonably capable of supporting the inferences required for the defence to succeed (Cinous, para. 83)

[48] The Court in Cinous states that:

The air of reality analysis must be applied to each component of the defence, both subjective and objective. Evidence capable of supporting a particular finding of fact with respect to one component of the defence will not necessarily be capable of supporting other components of the defence…The long-standing requirement is that the whole defence must have an air of reality, not just bits and pieces of the defence. (Paras. 92 and 93, italics in original).

[49] In the present case there are three components to the statutory defence established by s. 4 of the CDSA (Police Enforcement) Regulation. These include the requirement that the police officer involved in the investigation is a member of a “police force” designated by the Solicitor General of Canada or the provincial minister under s.2 of the Regulation. It also includes the requirement that the person claiming the exemption acts to assist the police officer “in the course of the particular investigation”. The third element is the requirement that the person claiming the exemption acts “under the direction and control” of a member of a police force. The Crown argues that there is no evidence to support any of these three elements of the defence.

[50] Given the interests of time, I based my decision (which I delivered orally on February 9, 2016, with written reasons to follow) on only one component of the defence: the requirement that the person claiming the exemption acts “under the direction and control” of a member of a police force.

[51] The Court states in Cinous that “a mere assertion by the accused of the elements of a defence will not be sufficient to clear the air of reality hurdle.” (para. 98). While the accused did testify that he felt as though he was under the “control” of the unnamed detective, the balance of his own testimony belies this assertion.

[52] It is clear that during his two meetings at the police station in October of 2009 with the unnamed detective, the accused did not think that he had been directed to offer heroin or any other controlled substance for sale. He testified that he understood that he was supposed to provide a large quantity of drugs to the unnamed detective. That was his subjective understanding of his instructions. Consistent with that understanding, he took the drugs to the police station; he did not try to sell them to someone he thought was a drug dealer. His testimony in relation to these two meetings does not support either objective or subjective elements of the defence under s.4 of the Regulation: the unnamed detective did not tell Budimirovic to offer to sell drugs to a drug dealer, nor did Budimirovic understand that to be his directions.

[53] His third and final conversation with the unnamed police detective was the telephone conversation on November 13 or 20, 2009. This was when he learned that the detective wanted not only the drugs, but the people connected to the drugs. Those were his directions from the detective. But Budimirovic did not follow those directions. He testified:

He wanted the drugs and the people. I wasn’t going to do that, not those people anyways. My ex-girlfriend and that house, I know where those drugs come from, that means I have to bring those people with those drugs. That wasn’t going to happen, I have the phone. At that point I made the decision, I’ll deal with these problems with the police officer in my own way, I’m done with this.

[54] By his own testimony the accused declined to follow the detective’s directions and provide the names of the people associated with the drugs. Instead he hung up the phone and devised his own plan.

[55] When he spoke to undercover officer Salhia on November 25, Budimirovic had not talked to the unnamed detective in at least 5 days. The detective knew nothing about Budimirovic’s plan or this proposed deal. The detective could not direct and control something that he had no knowledge of. The detective had given Budimirovic no directions with respect to anything in relation to this deal. He had not told him how to set up the deal or where to meet. He did not tell Budimirovic that the drugs should be transferred to the dealer, or that this would be the first of two deals. There is simply no “air of reality” to the defence that Budimirovic was, at this point, acting under the detective’s “direction and control”.

[56] Once the deal was settled, Budimirovic decided not to call the unnamed detective to tell him about it out of fear that the detective would prevent the heroin from being sold: “If I phone the police officer there is not going to be a drug deal, the drugs are going to be gone and Mr. D’Avolio is not going to get his money.”

[57] If the detective was directing and controlling this operation, it would be the detective’s prerogative to decide whether the drugs are transferred to the drug dealer and whether D’Avolio got his money. By his own testimony, Budimirovic made these decisions himself, and he decided not to call the detective precisely because he did not want the detective to direct and control what he was doing. There is no air of reality to his contention that he was acting under the “direction and control” of the unnamed detective when he offered the heroin for sale or met with the undercover officer.

[58] While Budimrovic was conducting the negotiations with undercover officer Salhia, he testified that it was D’Avolio, not him, who was making the decisions. Whether the decision maker was Budimirovic or D’Avolio, one thing is clear, the unnamed detective played no role in making any of the decisions. Decision-making is a key element of “direction and control”. There is no evidence in this case on the basis of which a properly instructed jury acting reasonably could come to the conclusion that Budimirovic was acting under the direction and control of the unnamed detective when he committed the alleged offences.

[59] Since there is no evidential foundation for the “direction and control” element of the statutory defence set out in s.4 of the CDSA (Police Enforcement) Regulation, the defence lacks an air of reality and should not be put to the jury.

Justice R.E. Charney

Released: February 12, 2016

CITATION: R. v. Budimirivic, 2016 ONSC 1120

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – Alexsander Budimirovic

RULING ON MOTION

Justice R.E. Charney

Released: February 12, 2016