Court File and Parties
COURT FILE NO.: 1-642634 DATE: 20160429 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty The Queen – and – Deepu Sawh
COUNSEL: H. Amarshi, for the Crown J. Shanmuganathan, for Deepu Sawh
HEARD: January 12, 14, 15, 18-22, and March 7-8, 2016
RULING ON ENTRAPMENT APPLICATION
GARTON J.:
[1] Deepu Sawh is charged with trafficking in crack cocaine to an undercover officer on four occasions: January 6, February 14, March 11, and June 3, 2013 (Counts 1-4). After the Crown closed its case, defence counsel acknowledged that the evidence established Mr. Sawh’s guilt on each count beyond a reasonable doubt. Mr. Sawh now seeks a judicial stay of the charges on the basis of entrapment, relying on the principles in R. v. Mack, [1988] 2 S.C.R. 903.
[2] For the reasons set out below, the application is dismissed.
OVERVIEW OF THE INVESTIGATION
[3] This investigation came about after a confidential informant (CI) provided information about a crack cocaine dealer, including his cell phone number, to Det. Cst. Scott Ross (Ross), an officer with the Guns and Gangs Task Force. That same day, Ross passed on the information to a member of the Toronto Drug Squad, Det. Cst. Preston Clark (Clark).
[4] Four days later, Clark directed the undercover officer, P.C. Sylvain Lapensee (Lapensee), to call the number. The male who answered the phone turned out to be Mr. Sawh. Mr. Sawh agreed to sell Lapensee 3 grams of crack cocaine for $250. The deal was completed later that day. Lapensee used police buy-money to purchase the drug.
[5] Mr. Sawh sold crack cocaine to the undercover officer on three more occasions over a five-month period. He was arrested almost immediately after the last deal, which took place on June 3, 2013.
EVIDENCE
Testimony of Det. Cst. Scott Ross
[6] Ross has had extensive experience as a CI handler, having acted in that capacity with respect to 20 different individuals. He is familiar with police protocols that govern CI handlers. He had known the CI in this case for a period of about five years.
[7] Ross met with the CI at 2:30 p.m. on January 2, 2013, in the area of Bathurst Street and Sheppard Avenue. During that meeting, the CI provided him with information with respect to several different investigations. The information relating to drug dealing was as follows:
- a male with the nickname “Dickie” deals drugs out of a bar called “Champs”
- a possible address for Dickie was 51 Midholm Drive
- Dickie’s cell phone number is 647-261-3050
- Dickie “chops hard” [he sells crack cocaine, as opposed to powder cocaine.]
- if a cold call was made to Dickie, the caller could introduce themselves by dropping the name “Ravi”
[8] Given his prior dealings with this CI, Ross viewed the above information as reliable and credible. He explained that he had been the CI’s handler since 2008, and that everything that the CI had told him over the years had proved to be accurate. Based on information provided by the CI in the past, Ross had prepared and executed search warrants, which in turn had led to the seizure of evidence and successful prosecutions of accused persons. Ross was aware of one instance in which information provided by the CI to another police officer had proved to be “very reliable.”
[9] Ross testified that he was always able to corroborate the CI’s information prior to the execution of a search warrant by way of investigative checks. He did not attempt to corroborate the CI’s information that he received on January 2, 2013, because it related to drug activity. He simply passed it on to the drug squad for further investigation.
[10] Ross testified that the CI’s criminal record consisted of more than two entries. He was unsure if there were more than five entries. None of the convictions was for crimes of dishonesty.
[11] Ross declined to answer questions regarding the CI’s motivation or whether he was offered a benefit to provide the information as he was concerned that it would “narrow the pool”, and lead to the disclosure of the CI’s identity. For the same reason, Ross declined to disclose whether the information was received by the CI first- or second-hand. Ross did not know whether the CI bore any animus towards Dickie.
[12] Later that day, at 4:25 p.m., Ross met with Clark at 41 Division and advised him of the CI’s tip. He also told Clark that he regarded the information as credible and reliable. He could not recall the exact words that he used to convey this opinion. However, he testified, “The gist of what I told Det. Cst. Clark was that this is a reliable source. I’ve used him several times, and this will probably be good info.”
[13] Ross and Clark have known each other for over 15 years. They attended Police College together and are friends as well as colleagues. They have worked together on joint investigations involving the Guns and Gangs Task Force and the Toronto Drug Squad. They have, on occasion, conducted surveillance and executed search warrants together. Clark testified that he trusted Ross and had no reason to doubt the accuracy of what he told him.
Testimony of Det. Cst. Preston Clark
[14] Clark testified that it is not uncommon for the Toronto Drug Squad to receive tips from CI handlers in other units, such as Guns and Gangs or Major Crime. Clark had received CI tips from Ross and/or his team members prior to January 2, 2013. CI tips provided by Ross’s team in the past had proved to be accurate and had led to the laying of charges and evidence being seized.
[15] Clark himself had experience as a CI handler and was aware of his duties in that regard, including the obligation to protect the CI’s identity. He explained how the police attempt to corroborate information received from CIs by using various police databases. Over 90 percent of the cases that he investigated as a member of the drug squad began as a result of a tip, including tips from CI handlers and anonymous tips through Crime Stoppers.
[16] Clark did not make notes of the tip that he received from Ross on January 2. He testified that his usual practice when receiving tips from handlers is to ask the handler for a copy of their notes, which is the procedure he followed in this case. He did not incorporate those notes into his own memo book, as the information was from a confidential source; the fewer copies that were “out there”, the better.
[17] Clark did not have the copy of Ross’s notes with him when he testified, and thus deferred to Ross’s notes with respect to the contents of the tip. He recalled that the tip included the following information: the nickname “Dickie”; Dickie’s cell phone number; the address of 51 Midholm Drive; Dickie sold cocaine and hung out with Ravi at Champs bar in Scarborough; and that “Ravi” could be used as the drop name.
[18] Ross did not disclose the CI’s identity to Clark, but told him that the source was credible and reliable. Clark understood from his conversation with Ross that the CI had provided information in the past that had not only been corroborated through police checks but had also proved to be truthful and accurate after the police acted on it.
[19] Clark testified that Ross described the CI’s information as “fresh”, which Clark interpreted as having been disclosed within a couple of weeks. Ross did not tell him the exact date when he received the information.
[20] Using police data bases, Clark checked the address of 51 Midholm Drive and learned that a person by the name of Deepu Sawh (Clark recorded the last name as “Sawd”), with a birth date of March 4, 1964, lived there. A CPIC check disclosed that Mr. Sawh had a criminal record, and that he had been the subject of investigations in the past. Clark also obtained a photograph of Mr. Sawh. He testified that he had his suspicions that Deepu Sawh was Dickie – that “this could be our guy” – but he could not prove it.
[21] Clark made no notes of having done the checks on 51 Midholm Drive. However, he testified that every check using a police data base is recorded and time-stamped, and would still be available through the computer. Printouts of the checks would also be kept in the file.
[22] As the road boss of this investigation, Clark made all the operational decisions and controlled the team’s actions. He set up the surveillance team, ensured that they covered the undercover officer’s interactions with the target, and assigned officers to specific tasks. He decided who would be the central note taker, who would obtain the search warrants, who would process the drugs or property seized, etc.
[23] On January 6, 2013, Clark advised Lapensee of the tip and instructed him to call the phone number provided by the CI.
[24] Clark did not share the results of his checks on 51 Midholm Drive with Lapensee or the rest of the team at the first briefing. He explained that he did not want the undercover officer to be distracted by the information, and thereby take away the opportunity for him to “see other information about the possible accused or the target at that time.” He also wanted to preserve the integrity of the investigation. He testified:
Clark: If [the undercover officer] hears more information about this person he’s buying drugs off, then … he’s getting information from us, our evidence. We don’t want it to change the information that he’s getting.
The Court: He only knows what he knows as a result of his undercover buys, in other words.
Clark: Yes, that’s correct.
[25] When asked if he expected Lapensee to do his own records checks, Clark testified: “No. As an undercover officer, that is not his job and [he] absolutely should not do those checks.”
[26] Clark also withheld the results of his checks on 51 Midholm Drive from other members of the team in order to maintain the integrity of the investigation. He explained:
Because I don’t want to … persuade their thoughts, their evidence. So if I give this information, they are going to be thinking, “Oh, it’s going to be this guy, look out for this guy.” No, I want them to concentrate on the undercover officer and who actually shows up, not to look for a certain individual.
[27] Clark agreed that he made no mention at the preliminary hearing of having done these checks or having obtained Mr. Sawh’s photograph. He explained, however, that he understood that the questions at the preliminary hearing were directed at checks that he had done with respect to the source of the information. He did not do any checks on the CI because he did not know who the CI was. Ross did not disclose that information to him.
Testimony of P.C. Sylvain Lapensee
[28] Lapensee joined the Toronto Police Service in 2002, and became part of the Drug Squad in May 2011. Prior to January 2013, he had made hundreds of calls as an undercover officer to suspected drug dealers for the purpose of setting up a drug deal. He testified that Clark, as his road boss, “called the shots” with respect to the team’s investigations.
[29] Lapensee was aware that the information Clark gave him with respect to “Dickie” came from a confidential informant. Lapensee did not know nor did he ask who the CI was. Even if he had asked for this information, it would not have been disclosed to him. He explained that this information is withheld in order to protect the CI’s identity: the fewer people who know who the CI is, the better.
[30] Having acted as the affiant in informations to obtain search warrants, Lapensee was aware of the factors that may be relevant in terms of assessing the credibility and reliability of a CI’s tip. The police take certain measures, such as ascertaining whether the information is first or second-hand, whether it can be corroborated, etc. in order to establish a level of confidence in the material being placed before a Justice of the Peace.
[31] Lapensee testified that although he did not conduct any checks on the tip in this case or attempt to corroborate the information himself, he was confident that other officers had taken such measures. He testified that when Clark told him about the tip and directed him to call the number, he trusted that other officers had already done “what they needed to do” in terms of assessing the credibility and reliability of the information.
[32] Lapensee explained that as the undercover officer in this investigation, he did not conduct any checks himself because taking such steps could endanger his safely. His concern was that if he learned certain facts during a check, he might inadvertently refer to them when speaking to the target, which could arouse the target’s suspicion and quickly place Lapensee in danger. Lapensee testified that he actually experienced such a situation early on in his career. As a result, he generally tries to distance himself from the “exterior investigation” when acting in an undercover capacity.
[33] Lapensee testified that Clark gave him the following information regarding the potential target in this case: the target’s name, “Dickie”; Dickie’s cell phone number – 647-261-3050; Dickie was known to sell crack cocaine; the target was familiar with “Ravi”, which could be used as a drop name; and “Champs” was the sports bar on Eglinton at McCowan where Ravi and Dickie frequented. In cross-examination, Lapensee testified that he did not have specific information that Dickie dealt in crack cocaine.
[34] Lapensee testified that he knew from having worked in the area that there was, in fact, a Champs Sports Bar at Eglinton and McCowan in Scarborough.
January 6, 2013: The first drug transaction
[35] On January 6, 2013, within a few minutes of being informed of the tip, Lapensee called the number. He used the made-up street name “Big Boy”, and the word “hard” when speaking about crack cocaine. He explained that drug dealers and buyers never refer to crack cocaine as “crack.”
[36] A male (Mr. Sawh) answered the phone. The following conversation then took place:
Mr. Sawh: Who is this?
Lapensee: Hey man. It’s Big Boy. I was talking to a guy, Ravi, at Champs. He said you were good for some hard.
Mr. Sawh: Okay, okay. What you need?
Lapensee: Hey look. First time. Let’s try a ball hard and see how that works out. How much for a half? [Lapensee explained that “ball” is a street term for 3.5 grams of crack cocaine, although a “street ball” is usually around 2.75 grams.]
Mr. Sawh: Okay Big Boy. Give me a minute. I’m going to call my people.
[37] Lapensee noted that the male did not seem confused by the street terms “hard” and “ball hard”, which are terms with which the general public would not be familiar. Nor did the male question the officer’s references to “Ravi” or “Champs”, or simply hang up. Instead, the male responded in a positive way: “Okay, okay. What you need?” Lapensee was satisfied at that point that the person on the other end of the phone was Dickie. He interpreted the male’s reference to “my people” as a reference to Dickie’s supplier.
[38] Four minutes later, at 4:48 p.m., Mr. Sawh called him back. Their conversation was as follows:
Lapensee: Hey.
Mr. Sawh: Hi Big Boy. It’s Dickie. Okay, we’re good for a ball hard. Look, it’s going to be two fifty but for two fifty, you’re going to get three points on the scale. [Lapensee interpreted “three points” as drug talk for three grams of crack cocaine, which is more crack than he would have expected in a street ball.]
Lapensee: Okay. Cool. When and where?
Mr. Sawh: Where you coming from?
Lapensee: I’m at my girlfriend’s place in Parkdale.
Mr. Sawh: Okay. Take the DVP. Get off at Eglinton and come east to Kennedy. There’s a plaza there with a Shopper’s and a grocery store.
Lapensee: Okay. I’m leaving in a few minutes. Call me if anything changes.
Mr. Sawh: K.
[39] While Lapensee was en route to the plaza, Mr. Sawh called, told him to park in the No Frills parking lot, and then to call him. Lapensee followed these instructions. When he called Mr. Sawh from the parking lot, Mr. Sawh asked him what vehicle he was driving, and then told him that he would be there in two minutes.
[40] A few moments later, Lapensee observed Mr. Sawh walking towards him from the Shopper’s Drug Mart. He came up to the passenger’s side of the officer’s vehicle and nodded. Lapensee nodded back. Mr. Sawh got into the front passenger seat, started to laugh, and stated, “Hey Big Boy. Nice to meet you.” They shook hands.
[41] Lapensee asked, “Are you Dickie?” Mr. Sawh laughed and replied, “That’s me. Hey, let’s get the …”, at which point he rubbed his fingers together, indicating that he wanted the money.
[42] Lapensee gave Mr. Sawh $250 in police buy-money. Mr. Sawh handed the officer a baggie containing 3.09 grams of crack cocaine and some green marijuana leaves.
[43] Mr. Sawh told Lapensee, “That’s three points on the scale. Call me if you want more.” Lapensee replied, “K, cool. Thanks bro.” Mr. Sawh then exited the vehicle and walked back toward Shopper’s Drug Mart. Lapensee drove away.
February 14, 2013: The second drug transaction
[44] On February 14, 2013, Lapensee called Mr. Sawh and asked him, “Can we do the same as last time?” Mr. Sawh asked, “A ball hard?” to which the officer responded, “Okay, man.”
[45] Six minutes later, Mr. Sawh called the officer back, told him to drive to the same Shopper’s Drug Mart where they had done the first deal, and to call him just before he got there.
[46] While Lapensee was en route, Mr. Sawh called him again and directed him to a Canadian Tire store. When Lapensee arrived there, he called Mr. Sawh, who told him to wait and that he would be there soon. However, a short time later, Mr. Sawh called and directed the officer to yet another location. When Lapensee arrived at this locale, he observed Mr. Sawh standing at the driver’s window of a grey Honda and conversing with someone inside the vehicle. Mr. Sawh waved Lapensee over. Lapensee pulled up behind the Honda. Mr. Sawh then walked over and spoke to him through the open driver’s window:
Lapensee: What’s going on here?
Mr. Sawh: Hey, Big Boy. Sorry I had to make you drive around, but I don’t know you very well. I have to keep my people safe. But the more we deal, the more we build trust.
Lapensee: No, no. I understand.
[47] Mr. Sawh asked Lapensee for $250. The officer gave him the money. Mr. Sawh then gave him 2.04 grams of crack cocaine. There was a brief conversation about future deals. The officer then drove away.
March 11, 2013: The third drug transaction
[48] On March 11, 2013, Lapensee called Mr. Sawh, who asked him, “What do you need?” Lapensee told him “the same as last time.” Mr. Sawh stated that he would “call my people” and would call him right back.
[49] Four minutes later, Mr. Sawh called and told the officer to meet him at the parking lot at the Shopper’s Drug Mart where they did the first deal. When Lapensee arrived there, Mr. Sawh approached the officer’s vehicle, leaned into the open window on the front passenger’s side, and handed him a piece of folded-up paper containing 1.69 grams of crack cocaine. The officer handed Mr. Sawh $250. After a brief conversation, Lapensee drove away.
June 3, 2013: The fourth drug transaction
[50] On June 3, 2013, Lapensee called Mr. Sawh for the purpose of setting up what was to be the final drug deal before the take-down. Mr. Sawh attempted to raise the price of a “ball hard” by $20 on the basis that “it’s been so long since we dealt.” Lapensee balked at the increase, stating, “That’s a lot for a ball.” Mr. Sawh told him that he would see what he could do and that he would “shop it around.” Twenty minutes later, he called the officer and told him, “Okay, Big Boy. We’re back in the old game. Same price, same people.”
[51] As Lapensee was en route to the Shopper’s Drug Mart to complete the deal, Mr. Sawh called and redirected him to Midholm Drive. Mr. Sawh was standing in the middle of the road. The officer pulled over to the curb near Mr. Sawh’s house at 51 Midholm. Mr. Sawh spoke to him through the driver’s window, telling him that “we’re still good for the deal,” but that he had to wait for his supplier.
[52] Lapensee and Mr. Sawh engaged in small talk until a grey Honda pulled up behind him. Lapensee gave $250 to Mr. Sawh, who then walked over to the Honda and got in on the passenger side. Less than two minutes later, he returned to the officer’s vehicle and gave him 2.8 grams of crack cocaine wrapped in plastic. Lapensee thanked Mr. Sawh and drove away.
[53] Mr. Sawh was arrested a few minutes later. The police seized ten dollars of police buy-money from the pocket of a pair of track pants in his bedroom while executing a search warrant at 51 Midholm Drive.
[54] The driver, sole occupant, and one of the two registered owners of the Honda, Lindsy Manoharan, was pulled over and arrested by police a short distance from 51 Midholm Drive. Police seized three grams of crack cocaine and $240 of police buy-money from the car.
THE LAW OF ENTRAPMENT
[55] The leading case in Ontario with respect to the doctrine of entrapment is R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, aff’d (2010), 2010 SCC 50, 263 C.C.C. (3d) 296 (S.C.C.). At paras. 8-11, Laskin J.A. referred to Mack, where the doctrine was described by Lamer J., as he then was, as a reflection of judicial disapproval of unacceptable police conduct in investigating crimes. Courts must seek to balance two competing objectives. On the one hand, the police must have considerable leeway in the techniques that they use to investigate criminal activity, especially in the investigation of consensual crimes such as drug trafficking, where traditional techniques may be ineffective. On the other hand, the power of the police to investigate criminal activity cannot be untrammeled. In their effort to investigate, deter and repress crime, the police should not be permitted to randomly test the virtue of citizens, or to offer citizens an opportunity to commit a crime without reasonable suspicion that they are already engaging in criminal activity, or worse, to go further and use tactics designed to induce citizens to commit a criminal offence. To allow any of these investigative techniques would offend our notions of decency and fair play.
[56] Justice Lamer struck the balance between these objectives by concluding that entrapment arises in either of two situations:
(i) 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;
(ii) 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.
[57] In R. v. Barnes, [1991] 1 S.C.R. 449, at p. 463, the court articulated the basic rule in Mack as follows:
The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location 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, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a 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 the 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. [Emphasis in original].
[58] In Mack, at p. 965, the court set out a list of factors for consideration in determining what sort of police behaviour would involve inducing the commission of an offence:
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 a 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, and 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 values.
[59] When entrapment is established, the court will not allow the Crown to maintain a conviction because to do so would be an abuse of process and bring the administration of justice into disrepute. Thus, the court will stay the proceedings.
[60] The burden is on the applicant to establish entrapment on a balance of probabilities.
POSITION OF THE PARTIES
[61] The position of the defence is that the police did not have a reasonable suspicion that the target “Dickie” was engaged in drug trafficking when Lapensee made the initial phone call. Defence counsel submits that the CI’s track record with respect to providing accurate information to Ross is of little moment in all the circumstances. None of the CI’s information was confirmed. Clark’s records check of 51 Midholm Drive has no confirmatory value, given the absence of a link between “Deepu Sawh” or “Deepu Sawd” and “Dickie.”
[62] Defence counsel further submits that even if the investigative team as a whole had a reasonable suspicion that Dickie was engaged in drug trafficking, the same could not be said for the undercover officer. Lapensee simply received the tip from Clark and made the call. Defence counsel submits that in assessing whether the reasonable suspicion test has been met, the focus must be on the information available to the undercover officer, as he is the one who, in speaking to the target, decides whether further investigatory steps should be taken and when to make an offer to buy drugs.
[63] Defence counsel submits that Lapensee’s statements to Mr. Sawh during the initial call – “I was talking to a guy, Ravi, at Champs. He said you were good for some hard” – constituted an offer to buy the drug, particularly in light of the specific reference to “hard” or crack cocaine, as opposed to the use of a more general term, such as “product.” This offer was made without Lapensee having confirmed any of the information in the tip and in the absence of reasonable suspicion. Hence, entrapment has been established.
[64] The position of the Crown is that the police had a reasonable suspicion that the target on the phone was trafficking in drugs when Lapensee made the call. Crown counsel submits that the tip was detailed, timely, as well as reliable, given the CI’s track record in terms of supplying accurate information to Ross. The information was supported to some degree through Clark’s record checks on the address of 51 Midholm Drive.
[65] Crown counsel submits that the issue is whether the investigative team as a whole, not the undercover officer himself, had a reasonable suspicion that Mr. Sawh was engaged in drug trafficking. The Crown referred to Clark’s and Lapensee’s testimony regarding the important policy reasons for not having an undercover officer conduct checks and not apprising him of the results of other officers’ checks. These policy reasons involve maintaining the integrity of the investigation, the safety of the undercover officer, and the protection of the CI’s identity.
[66] Crown counsel submits that even if the police lacked reasonable suspicion that the target was engaged in drug trafficking when Lapensee made the initial call, reasonable suspicion was established within the first few seconds of the conversation. The Crown submits that Lapensee’s opening statement to Mr. Sawh that Ravi had told him that he was “good for some hard” was not an offer to buy crack but an investigative step. Mr. Sawh’s response – “Okay, okay. What you need?” generated reasonable suspicion that he was a crack cocaine dealer. The police were therefore justified in following through and providing Mr. Sawh with an opportunity to sell crack cocaine to the officer. The fact that Lapensee referred specifically to “hard” or crack cocaine did not convert this statement from an investigative step into an offer to buy drugs.
[67] The Crown also submits that in determining whether Mr. Sawh was provided an opportunity to commit a crime in which he was not already engaged, the court should not be limited to examining only a few words of the initial conversation. Rather, the court should take into account all the conversations that took place between Mr. Sawh and the undercover officer prior to completion of the first drug deal.
[68] The Crown further submits that reasonable suspicion is not required in any event in cases such as this one, where an undercover officer calls a phone number on the basis of a tip – the so-called “cold call” or “dial-a-dope” cases. The Crown submits that these operations do not constitute random virtue testing but are targeted and bona fide investigations. As such, the issue is not whether the police had a reasonable suspicion or whether the officer provided an opportunity to commit an offence. Rather, the issue is whether the police went beyond providing an opportunity and induced the commission of an offence. In other words, the Crown submits that the analysis should properly proceed pursuant to the second branch of the test in Mack.
[69] The position of the defence is that the analysis to determine whether entrapment has been established in “cold call” cases should be restricted to the first branch of the Mack test. Mack speaks of bona fide investigations in the context of particular locations and not particular people. By asking the court to consider cold call cases as bona fide inquiries and conducting an analysis under the second branch of the Mack test, the Crown is effectively asking the court to carve out an exception to the requirement for reasonable suspicion. Defence counsel submits that the mere fact that cold calls have become a ubiquitous police practice does not warrant creating this exception.
ANALYSIS
The first branch of the test in Mack
[70] As earlier stated, Mack held that entrapment may arise when the police 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.
Reasonable suspicion
[71] The authorities make it clear that reasonable suspicion is an objective standard. For the purpose of entrapment, the pertinent question is whether, objectively speaking, the police had reasonable suspicion that the suspect was engaged in the drug trade and when they presented an opportunity to traffic: see R. v. Olazo, 2012 BCCA 59, at para. 28.
[72] In R. v. Chehil, [2013] 3 S.C.R. 220, at paras. 3, 27 and 47, the court described the investigative standard of reasonable suspicion as follows:
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), 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 suspicious standard. … [Emphasis added].
[73] In summarizing the reasonable suspicion standard in R. v. Williams, 2010 ONSC 1698, Hill J., at para. 44 (3), stated:
The reasonable suspicion standard has been described as not “unduly onerous” (R. v. Mack, at 554) and “necessarily … low”: R. v. Cahill (1992), 13 C.R. (4th) 327 (B.C.C.A.) at 339. It is an intermediate standard: R. v. A.M., 2008 SCC 19 at para. 60, 82. Because reasonable suspicion “is a less demanding standard than reasonable grounds” (R. v. Bennett (1996), 108 C.C.C. (3d) 175 (Que. C.A.) at 183), it has been correctly observed “that a reasonable suspicion will much more frequently be wrong than will be reasonable and probable grounds”: T. Quigley, “Brief Investigative Detentions: A Critique of R. v. Simpson” (2004) 41 Alta. L. Rev. 935, at para. 20. Put differently, the reasonable grounds to suspect standard is a minimal level of belief which does not rule out the possibility of innocent conduct or “other reasonable possibilities”: United States v. Gould, 364 F. 3d 578, 593 (5th Cir. 2004).
[74] At para. 44 (4), Hill J. referred to R. v. Kang-Brown, [2008] 1 S.C.R. 456, at para. 75, where Binnie J. observed that the U.S. Supreme Court, in Alabama v. White, 496 U.S. 325 (1990), contrasted “reasonable suspicion” with reasonable grounds of belief (or what U.S. lawyers call “probable cause”) as follows:
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
[75] In comparing reasonable suspicion to reasonable grounds, Hill J. also referred to R. v. Lal (1998), 130 C.C.C. (3d) 413 (B.C.C.A.) at para. 30, leave to appeal refused [1999] S.C.C.A. No. 28, and R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.) at para. 27. In Lal, the court stated:
Since the standard for reasonable suspicion is less demanding than that for reasonable belief, it can arise from information that is less reliable than that required to show reasonable belief.
In Lewis, an anonymous informer tip and the verification of only some details was held to fall short of the guidelines set out in R. v. Debot, [1989] 2 S.C.R. 1140, but nevertheless amounted to reasonable suspicion.
[76] While Debot addressed the higher standard of reasonable grounds to conduct a search, it provides a helpful framework when assessing whether the reasonable suspicion standard has been met in the context of a confidential tip. The factors to be weighed are whether the tip was compelling, credible and corroborated. At para. 53, Wilson J. stated:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[77] In the present case, the tip contained considerable detail, including the target’s gender (male), nickname (Dickie), the type of drug that he sells (crack cocaine), the bar that he frequents and from which he was dealing drugs (Champs on Eglinton in Scarborough), his possible home address (51 Midholm Drive), his cell phone number, and the name of a friend or acquaintance (Ravi) that could be “dropped” by a caller in order to facilitate a drug deal.
[78] In addition to being detailed, the information appeared to be current or fresh. According to Ross, the CI told him that Dickie “chops hard.” The use of the present tense implies that Dickie’s drug dealing was an ongoing activity.
[79] Ross acted promptly in terms of passing on the tip to Clark. Ross met the CI at 2:50 p.m. on January 2, at which time the CI gave him information with respect to this case and two other investigations. Ross advised Clark of the tip regarding “Dickie” at 4:25 p.m. that day. Four days later, on January 6, Clark directed Lapensee to call the phone number. Lapensee followed through with that direction minutes later.
[80] Ross has extensive experience as a CI handler, and had an established relationship with the CI in this case: he had been the CI’s handler since 2008. Ross testified that all of the information provided by the CI in the years leading up to January 2, 2013, proved to be accurate. Ross did not testify as to the exact number of times that he had received a tip from the CI, but described it as “several.” He testified that based on the CI’s information, he had prepared and executed search warrants, which had led to the seizure of evidence, the laying of charges and successful prosecutions. Ross was always able to corroborate the CI’s information by way of investigative checks prior to executing the warrants. Ross was aware of one instance in which the CI provided “very reliable” information to another police officer.
[81] Ross was unsure of the exact number of entries on the CI’s criminal record, but there were no convictions for dishonesty.
[82] In order to protect the CI’s identity, Ross did not disclose what, if any, motivation the CI had for providing the information, or whether the CI acquired the information first- or second- hand. He did not know whether the CI bore any animus towards Dickie.
[83] There is no question that Ross honestly believed that the information provided by the CI on January 2 was reliable and credible. That belief was objectively reasonable, given Ross’s past dealings with the CI over a number of years.
[84] A confidential informant’s history of providing accurate information to the police can be a significant factor when assessing the reliability and credibility of a tip. For example, in Williams, Hill J. found that the CI’s track record of providing reliable information, along with a tip that provided detail, gave the police not only reasonable suspicion but also reasonable grounds for believing the accuracy of the information received.
[85] In Williams, a police officer, P.C. Carrabs, received an unsolicited phone call from a CI whom he had used as a source on eight or nine occasions over a two-year period. On one occasion, the information led to the arrest of two people, who were charged with drug offences. Their cases were still before the courts. The other tips did not result in arrests but were successfully corroborated. It appeared that the CI was not requesting payment or “judicial consideration” for the tip.
[86] The tip in Williams included the following information:
- A male was dealing crack cocaine in Brampton
- The suspect was black-skinned, in his twenties, with a goatee
- The dealer went by the name “Bizz”
- He drove a black vehicle
- The telephone number where he could be reached was provided
[87] Carrabs did not inquire into the source of the CI’s information, whether it was first- or second-hand, or why the CI was reporting the information. He assumed that the telephone number came directly from Bizz, but could not discount that it may have originated from a third party. The CI was involved in the drug sub-culture and had been arrested, but Carrabs did not know if he/she had a criminal record. Carrabs did not undertake any further investigation, such as performing a subscriber check on the phone number given for Bizz, before calling the number in an effort to facilitate a drug purchase.
[88] Despite the lack of corroboration and the gaps in information regarding the CI’s criminal record, the CI’s reason for providing the information, and how the information was acquired, Hill J. found, at para. 52, that the CI’s past history of providing reliable information, along with the relatively detailed tip, constituted not only reasonable suspicion but also reasonable grounds:
Based on Carrabs’ history with the known informant as a reliable source, and the detail of the tip, the information received was sufficiently credible and compelling that I am satisfied that the officer had not only reasonable suspicion, but also reasonable grounds for believing the accuracy of the information received. In these circumstances, an approach to the suspect to provide an opportunity to traffic would be properly targeted, not random.
[89] The significant role that a CI’s prior reliability may play in determining whether or not the reasonable suspicion standard has been met was referred to by McMahon J. in R. v. Marino-Montero, 2012 ONSC 1287. The tip in that case, as in the present case, was quite detailed or specific. It contained seven different pieces of information, including nickname, phone number, age, physical description, name of friend, the type and amounts of drugs sold, and the location. The police did not attempt to confirm any information in the tip other than the phone number. Since it was a cell phone number, the records check proved fruitless.
[90] Unlike the present case, there was no evidence in Marino-Montero as to the reliability of the tipster. McMahon J. found that it was probable that the tipster was a confidential informant of an Officer Stea, who had passed on the tip to the undercover officer. Officer Stea did not testify. Hence, there was nothing known about the informant’s prior reliability. In his reasons for judgment, at para. 25, McMahon J. stated that had there been such information before the court – for example, had the undercover officer inquired of Stea as to the prior reliability of the informant – this certainly would have been an important factor and “no doubt would have got the police over the hurdle of reasonable suspicion.” In other words, McMahon J. was of the view that evidence of the CI’s prior reliability, along with the detailed but uncorroborated tip, could have been sufficient to establish reasonable suspicion.
[91] Other cases in which a CI’s prior reliability has been described as potentially significant in assessing whether the police had reasonable suspicion include R. v. Reid, 2016 ONSC 954, and R. v. Townsend. In Reid, at para. 43, Morgan J. observed: “It is certainly true that past experience with the informant as a reliable source might place the police on firm footing in their having reasonable suspicion: see R. v. Meech, 2011 ONSC 5758, at para. 50, aff’d on other grounds, 2013 ONCA 338.” Similarly, in Townsend, Sharpe J. (as he then was) stated that evidence that an informant has been previously reliable is a “significant point”, as information from such an informant might support a reasonable suspicion as to the involvement of the target in trafficking in narcotics.
[92] Counsel for Mr. Sawh pointed out that the investigatory steps taken to confirm the CI’s information in the present case were minimal. The police did not conduct any surveillance at Champs bar to confirm that a male by the name of Dickie hung out there. Clark’s records check on the address of 51 Midholm Drive (Dickie’s possible address, according to the tip) revealed that “Deepu Sawd”, with a date of birth of March 4, 1964, lived there. Clark obtained a photograph of Mr. Sawh. He also learned that Mr. Sawh had a criminal record and had been the subject of criminal investigations in the past. Although Clark suspected that Deepu Sawh was Dickie, there was no investigation conducted to confirm that suspicion or to link Mr. Sawh to the name “Dickie.” Clark did not ask Ross to show Mr. Sawh’s photograph to the CI to confirm that Mr. Sawh and Dickie were one and the same person. In the end, all that the records check showed was that the male who lived at the address provided by the CI had a criminal record (there was no evidence as to the details of that record) and had been the subject of police investigations on previous occasions.
[93] According to Debot, each of the factors to be weighed in determining whether a CI’s tip meets the reasonable grounds standard – that is, whether the information was compelling, credible, and corroborated – do not form a separate test. Rather, “the totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[94] I am satisfied that the totality of the circumstances in the present case easily meets the reasonable suspicion test: the weaknesses in the area of corroboration are compensated by the detailed information contained in the tip, the recentness or timeliness of the tip, and the CI’s prior history with Ross as a reliable source. That history got the police “over the hurdle of reasonable suspicion” as McMahon J. put it, or, to borrow the words of Morgan J. in Reid, “placed the police on firm footing in their having reasonable suspicion.”
[95] As stated earlier, Ross’s belief that the CI’s information was credible and reliable was objectively reasonable. When he passed on the tip to Clark, Ross not only told him that it was probably “good” or accurate information, but also provided Clark with a basis for that opinion. Clark was made aware that the CI had previously provided information to Ross that had not only been corroborated through police checks but had also proven to be truthful and accurate after the police had acted on it. Ross passed on the tip to Clark on the same day that he received it and advised him that it was “fresh.” The information contained in the tip was obviously fairly detailed. In these circumstances, when Clark passed on the tip to Lapensee and, as his road boss, directed him to call the number, there was, objectively speaking, a reasonable suspicion that the target on the phone was trafficking in crack cocaine.
Should the focus of the reasonable suspicion inquiry be on the investigative team as a whole, or on the undercover officer who makes the call?
[96] Defence counsel argued that the reasonable suspicion inquiry should focus on Lapensee and the knowledge that he possessed when he called Mr. Sawh, as opposed to the knowledge of the investigative team as a whole. It was submitted that this makes sense, since it is the undercover officer who, in speaking to a target, decides whether further investigatory steps should be taken and when to make an offer to buy drugs. As Lapensee knew nothing about the CI and did not check any of the information in the tip, he did not have reasonable suspicion that the target “Dickie” was engaged in drug trafficking when he made the call.
[97] Crown counsel relied on the principle in Debot, where the court held that when an officer conducts a search of a suspect pursuant to the instructions of another officer, the pertinent question is whether the instructing officer had reasonable and probable grounds for the search. In R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 51, the Court of Appeal confirmed this principle in the context of an arrest:
In circumstances where one officer, or one police force, acts on the direction of another, the question of whether reasonable grounds for an arrest exist is answered by reference to the information available to the officer or police force giving the direction.
[98] Similarly, in Lal, at para. 24, the court, in the context of a vehicle stop and search, stated:
I agree that a police officer is entitled to act upon information given to the officer by another member of the police force. To suggest that police officers cannot act on the assumption that a fellow officer’s advice is reliable is unrealistic and would unduly hamper law enforcement.
[99] Crown counsel submits that the principle in Debot should apply in this case where, at the time that Clark directed Lapensee to call the target’s number, the collective knowledge of Ross and Clark constituted reasonable grounds to suspect that the target was engaged in selling crack cocaine.
[100] There is little direct authority as to whether the principle in Debot applies in the context of an entrapment application. However, two decisions from the Alberta Court of Queen’s Bench have held that it is the collective knowledge of the police that should be considered in assessing whether the reasonable suspicion threshold has been met: R. v. Gladue, 2011 ABQB 194, 511 A.R. 302; and R. v. Coutre, 2013 ABQB 258, 557 A.R. 144. In Gladue, at para. 60, the court referred to the “collective knowledge of the police” before the call was made to the target. In Coutre, at para. 14, the court cited Gladue and stated:
I note that I am treating the police as a whole as to the knowledge they had collectively before making the phone call to buy drugs. I am not requiring that each officer involved had complete knowledge. However, I do find that the police as a whole had to have sufficient knowledge for it to be a reasonable suspicion prior to offering the accused the opportunity to sell drugs to the undercover police officer – Cst. Smith.
[101] The issue as to whether the principle in Debot applies in entrapment cases was raised in R. v. Williams, 2014 ONSC 2370. Trotter J. stated that he was “inclined to focus” on the undercover officer, although he found it unnecessary to decide the issue as the evidence did not establish that there was anything more than a mere suspicion by any of the officers in any event. Nothing was known about the source, as neither the undercover officer nor the officer who received the tip from the CI’s handler made any inquiries of the handler as to the reliability of the source. As was the case in Marino-Montero, the handler did not testify. It was therefore not possible for the court in either Williams or Marino-Montero to properly scrutinize whether the suspicion that the police collectively had was reasonable or not.
[102] In R. v. Thorington, 2012 ONCJ 10, Chapin J. refused to consider information known to the officer who received the tip, P.C. McGuinness, that may not have been passed on to the undercover officer, P.C. Lipkus. At para. 62, she found that the “focus is on what information was available to Officer Lipkus.” She also noted, however, that she could not give much weight to P.C. McGuinness’s evidence in any event as he had not made any notes of his conversation with the CI. In the present case, Ross, who was very experienced as a CI handler, made detailed notes of his meeting with the CI. His evidence as to that meeting, and his relationship and interactions with the CI, was credible and reliable.
[103] Chapin J. was also very critical of the undercover officer, Lipkus, for failing to conduct checks to see if the informant had a criminal record, for failing to do a police check on the phone number provided, and for not attempting to corroborate information as best he could. She found that “much more should have and could have been done by Officer Lipkus.”
[104] In the present case, Lapensee did nothing to corroborate the tip before he made the call. However, unlike Thorington, evidence was presented as to the policy reasons for his inaction, and why Clark “kept him in the dark” so to speak with respect to the results of his record checks on 51 Midholm Drive.
[105] Ross did not disclose the CI’s identity to Clark. Hence, Clark was unable to disclose the CI’s identity to Lapensee. Since neither Clark nor Lapensee knew who the CI was, they were not in a position to conduct checks on that individual, such as whether he/she had a criminal record. Lapensee testified that the policy behind the withholding of the CI’s name is rooted in informant privilege: the fewer officers who know who the CI is, the better. As a result of this policy, Lapensee did not ask for the CI’s name. Even if he had asked for it, it would not have been given to him.
[106] Although Ross did not disclose the CI’s identity to Clark, he did advise him that he considered the source to be credible and reliable. He also provided Clark with the reasons for his opinion, which were based mainly on the CI’s track record of having provided accurate information in the past. Ross was in a position to provide this opinion because of his longstanding relationship with the CI as the CI’s handler.
[107] In Williams and Marino-Montero, the CI’s handler did not testify. Thus, the reasonable suspicion inquiry in those cases perforce focussed mainly on the undercover officer. However, in the present case, Ross testified and provided the court with as much information about the CI as he could without risking the disclosure of the CI’s identity. Unlike the handler in Thorington, Ross made detailed notes of his meeting with the CI. He testified as to the circumstances of the meeting, and the fact that the CI also provided information at that time with respect to two other investigations. The CI, who had a criminal record but no convictions for dishonesty, had provided very reliable information to another officer on one previous occasion. Ross’s testimony has enabled me to scrutinize whether the suspicion by the police that the target, Dickie, was engaged in drug trafficking was reasonable or not.
[108] In terms of Lapensee’s failure to conduct checks on the information contained in the tip, Clark made it clear that it was not Lapensee’s role as an undercover officer to conduct such checks: he testified that Lapensee “absolutely should not do those checks.” Clark also purposely kept from Lapensee the results of his own checks on 51 Midholm Drive, including the photograph of Mr. Sawh. Clark’s reason for holding back this information was to maintain the integrity of the investigation. He did not want Lapensee to be distracted by it and thereby fail to make other observations about the target: “If [the undercover officer] hears more information about this person he’s buying drugs off of, then … he’s getting information from us, our evidence. We don’t want it to change the information that he’s getting.”
[109] In addition to maintaining the integrity of the investigation, there was a concern that if Lapensee learned certain facts about the case as a result of his own or other officers’ checks, his safety could be compromised. Lapensee explained that if he inadvertently referred to those facts when speaking to the target, he could very quickly find himself in a dangerous situation, as he had on one previous occasion.
[110] In the circumstances, Lapensee cannot be faulted for failing to conduct his own checks or inquiring about the results of any checks that Clark or other members of the team may have conducted. There were sound policy reasons for Lapensee to distance himself from the “exterior investigation” when acting in an undercover capacity.
[111] Since policy reasons dictated that Lapensee not take steps to corroborate the tip, he relied on members of the investigative team to take those measures: he testified that he trusted that other members of the team had already done “what they needed to do” before he called the target. Lapensee’s assumption that investigative steps had been taken was correct; for example, Clark had spoken to Ross regarding the CI’s credibility and reliability, as well as the recency of the tip. He also conducted the records check of 51 Midholm Drive. Given his role as the undercover officer, Lapensee did not expect to be apprised of the results of any checks before he called the target at the direction of Clark.
[112] In my view, the inquiry into whether the police had a reasonable suspicion that a target is already engaged in criminal activity is properly focussed on the investigative team as a whole – that is, the collective knowledge of the police – rather than on the undercover officer alone. I agree with the approach taken by the trial judges in Gladue and Coutre, and find that the principle in Debot applies in the context of an entrapment application.
[113] For the reasons outlined earlier, I find that when Clark passed on the tip to Lapensee and directed him to call the number, there was, objectively speaking, a reasonable suspicion that the target on the phone was engaged in selling crack cocaine. In these circumstances, Lapensee could properly approach the target and provide an opportunity to him to traffic. Such an approach would be properly targeted and would not constitute random virtue testing.
[114] If I am wrong in concluding that the reasonable suspicion test has been met, the police were still entitled to call the number provided by the CI in order to determine, through additional investigation, whether a drug deal could be arranged. As Trotter J. stated in Williams, 2014 ONSC 2370, at para.24, it is perfectly reasonable for the police to investigate a tip that involves a telephone number by calling the 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. See also Townsend, at para. 42; and R. v. Bogle, at para. 17.
Investigating a tip versus providing an opportunity to commit a crime
[115] As for what constitutes legitimately investigating a tip as opposed to providing an opportunity to commit a crime, the case law makes it clear that language is very important. Careful consideration must be given to the exact words used by the officer and the suspect. For example, in Imoro, the police decided to investigate a tip that a man was selling drugs in an apartment building. When the undercover officer got off the elevator, Mr. Imoro approached him and stated, “Come with me.” The officer asked, “Can you hook me up?” Mr. Imoro answered, “Yeah man.” The Court of Appeal overturned the trial judge’s finding of entrapment. In speaking for the Court, Laskin J.A. stated as follows, at para. 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. 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.
[116] In R. v. Ralph, 2014 ONCA 3, 313 O.A.C. 384, an undercover officer, acting on an anonymous tip, called the accused, who asked him for his name and how he got his number. The officer replied: “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]. The accused responded, “Okay, so what are you looking for? What do you need?” The trial judge found that entrapment had not been established.
[117] In dismissing the appeal, Rosenberg J.A., at paras. 31 & 32, found that the facts were almost indistinguishable from the facts in Imoro: the officer’s statement to Mr. Ralph was similar to the “Can you hook me up?” question in Imoro. Rosenberg J.A. continued:
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.
[118] In Townsend, the court found that there was no entrapment where the officer told the accused, “African said you could help me out.” The statement was investigative in nature and designed to check out the tip. It was, at best, a heavily veiled reference to a possible drug deal and did not amount to random virtue testing. The trial judge, at para. 45, classified the statement as “objectively neutral, designed to test information provided by the tip and to determine whether there was any basis for proceeding further.”
[119] In R. v. Silverthorn, 2012 ONSC 6784, Trotter J. found that an undercover officer’s question, “You around?” did not provide an opportunity to the accused to commit a crime. Trotter J. also referred to R. v. Stubbs, 2012 ONSC 1882, and Hill J.’s decision in Williams as other examples of cases where the question “Are you around?” or something similar, did not amount to providing an opportunity to an individual to commit an offence.
[120] In the present case, Lapensee’s statement to Mr. Sawh – “I was talking to a guy, Ravi, at Champs. He said you were good for some hard” – is very similar to the “Can you hook me up?” question in Imoro. It is also very close to the officer’s statement in Ralph that “a kid said that if I want anything to call this number and this guy would link me up … I need product.”
[121] Counsel for Mr. Sawh pointed out that the officers in Imoro and Ralph did not refer to a particular type of drug, whereas Lapensee specifically mentioned “hard” or crack cocaine. In my view, Lapensee’s reference to “hard” did not elevate his statement from an investigative step to an offer to purchase the drug, or distinguish it in any meaningful way from the statement in Ralph, where the officer stated that he needed “product.” There was no mention by Lapensee of a specific quantity or price of the drug. Lapensee was simply asking Mr. Sawh if he was a crack cocaine dealer. The statement was designed to determine whether or not Mr. Sawh was engaging in selling that illicit substance. The statement did not amount to an opportunity to buy crack cocaine but was simply a legitimate investigative step in the police investigation of the CI’s tip.
[122] As observed by Lapensee during his testimony, Mr. Sawh, in responding to the statement, did not question or appear to be confused by the officer’s reference to “Ravi” or “Champs.” Mr. Sawh did not hang up the phone or ask Lapensee what he was talking about. In fact, he appeared to know exactly what the officer was talking about: he immediately responded, “Okay, okay”, followed by the question, “What you need?”
[123] Mr. Sawh’s response strongly confirmed the CI’s tip with respect to “Ravi” and “Champs”, and thereby also tended to confirm that he was Dickie, although Lapensee did not directly ask him that question. In addition, Mr. Sawh’s question, “What you need?” was consistent with what a drug dealer would say. It showed that he understood the drug terminology “hard”, and that he was willing to engage in a drug-related conversation. Indeed, by asking the officer “What you need?” Mr. Sawh initiated the taking of a specific order for crack cocaine. Mr. Sawh’s response, along with the tip, provided Lapensee with more than a reasonable suspicion to believe that Mr. Sawh was a person engaged in selling crack cocaine.
[124] Counsel for Mr. Sawh referred to a number of cases in which the undercover officer’s words were held to constitute an offer. For example, in Marino-Montero, McMahon J. found that the statement “I need 40” was an offer to buy 40 dollars’ worth of crack cocaine. Similarly, in Williams, Trotter J. held that the statement “I need 80” constituted an offer to buy 80 dollars’ worth of crack cocaine. In R. v. Izzard, 2012 ONSC 2516, Frank J. held that the statement “I need six greens” amounted to “a specific drug deal solicitation or opportunity” to buy six 80 milligram capsules of OxyContin (at para. 22.) In R. v. Arriagada, 2008 ONSC 5791, the undercover officer told the accused that he needed “half a B”, which is drug parlance for half an eight ball, a standard unit of sale of cocaine. Frank J. held that this statement constituted an opportunity to commit an offence.
[125] In Thorington, the undercover officer requested a “ball of hard”, which Chapin J. held was an offer to buy one eighth of an ounce of crack cocaine. In coming to this conclusion, she observed that the officer, like the officer in Marino-Montero, used the drop name and made the offer to buy drugs at the same time. Unlike Imoro, there was no intervening investigative question to determine whether or not the target was currently selling drugs. Chapin J. therefore determined that the offer was made before the police had a reasonable suspicion and, in accordance with Mack, stayed the charges.
[126] In Williams, at para. 27, Trotter J. observed that the distinction between statements such as “I need product”/“Can you hook me up?”/“Are you around?”/“Where are you?”, on the one hand, and “I need 80”/“I need 40”/“I need 6 greens”/“I need half a B”, on the other hand, might appear to be quite subtle. He noted, however, that “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 ‘yes.’”
[127] As previously noted, although Lapensee specifically mentioned crack cocaine – “[Ravi] said you were good for some hard” – he made no reference to quantity or price. The possibility of a deal “still needed to be explored and developed.” As such, Lapensee’s statement did not amount to giving Mr. Sawh an opportunity to traffic in crack cocaine. It was simply an inquiry as to whether he was a dealer in that illicit drug. The line between an investigatory step and providing an opportunity to commit an offence was not crossed. Mr. Sawh’s response, wherein he indicated his readiness to take a specific order for the drug, along with the CI’s tip, provided Lapensee with more than the requisite reasonable suspicion, and justified his further statements in which he offered to buy a “ball hard.”
[128] This was not a case of random virtue testing. On the totality of the evidence, Mr. Sawh has failed to discharge his onus of proof that he was entrapped into committing the offences for which he has been found guilty. The application for a stay of the charges is therefore dismissed.
THE CROWN’S ALTERNATIVE ARGUMENTS
i) Whether all the conversations between Mr. Sawh and Lapensee leading up to the drug deal should be considered in determining if there was reasonable suspicion
[129] Crown counsel submits that in determining whether Mr. Sawh was provided an opportunity to commit a crime in which he was not already engaged, the court should not be limited to examining only a few words of the initial conversation. Rather, the court should take a contextual approach and consider all the conversations and everything that occurred between Mr. Sawh and the undercover officer leading up to the actual drug deal. The Crown argues that by the time Mr. Sawh sold crack cocaine to Lapensee, the officer had ample reasonable suspicion that he was already engaged in the trafficking of drugs.
[130] Counsel for Mr. Sawh submits that the focus of the reasonable suspicion inquiry must be on the conversation between the undercover officer and Mr. Sawh prior to the police making an offer. This accords with the doctrine of entrapment described in Mack, which reflects judicial disapproval of police conduct that constitutes random virtue testing. The fact that the target in a case where the police have engaged in random virtue testing turns out to be an active drug dealer is not relevant with respect to the entrapment hearing. The stay intervenes to prevent consideration of the merits lest a conviction occur in circumstances that would bring the administration of justice into disrepute.
[131] I have found that the police had the requisite reasonable suspicion before Lapensee called Mr. Sawh. I have also found that even if that were not the case, Mr. Sawh’s response to Lapensee’s statement that Ravi at Champs had said that he was “good for some hard” – which in my view was a legitimate investigative step – provided the police with a reasonable suspicion that Mr. Sawh was engaged in trafficking in cocaine. Given these findings, it is not necessary for me to resolve the issue as to whether all of Mr. Sawh’s statements prior to the actual drug deal should be taken into account in determining whether he was provided an opportunity to commit a crime in which he was not already engaged.
ii) Whether the appropriate analysis in “cold call” cases should be conducted pursuant to the second branch of the test in Mack
[132] Crown counsel took the position that the issue of entrapment in “cold call” cases ought to be analyzed under the second branch of the test in Mack. The Crown’s argument essentially mirrors the position advocated by Chris DeSa in his article: “Entrapment: Clearly Misunderstood in the Dial-a-Dope Context”, (2015) 62 Criminal Law Quarterly 200. It was submitted that a cold call operation, such as the one in this case, constitutes a “bona fide inquiry” that does not require reasonable suspicion. Therefore, the issue is not whether the police provided an opportunity to commit an offence but rather, whether they went further to induce its commission. Crown counsel submits that as there is no evidence in this case that the police “went further” to induce Mr. Sawh to sell crack cocaine to Lapensee, the entrapment application must fail.
[133] Counsel for Mr. Sawh submits that the analysis to determine whether entrapment has been established in “cold call” cases should be restricted to the first branch of the Mack test. It is submitted that the reference in Mack to a bona fide inquiry is in the context of a particular location and not a particular person. The position of the defence is set out in the applicant’s factum at pages 17-21.
[134] Given my finding that the application fails in any event under the first branch of the test in Mack as the police had the requisite reasonable suspicion that Mr. Sawh was engaged in trafficking in cocaine, I need not determine this issue. I note, however, that there is some judicial authority that supports the position of the defence. In R. v. Arriagada, 2008 ONSC 5791, Frank J. held that the Crown could not avoid a finding of entrapment by relying on the police having acted in pursuit of a “bona fide inquiry”, as that phrase refers to a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. At para. 29, she stated:
I am satisfied that the Crown cannot avoid the finding of entrapment by relying on the police having acted in pursuit of a bona fide inquiry. While there is no question that the officer’s purpose was genuine to investigate and repress criminal activity, he had no basis for investigating Mr. Arriagada. This is not a case of the police investigating a person who is associated with a location where it is reasonably suspected that criminal activity is taking place and therefore arouses suspicion that he or she is already engaged in the particular criminal activity.
[135] In reaching this conclusion, Frank J. relied on the Supreme Court’s decision in Barnes. [See Barnes, at p. 463 (and already quoted in these reasons at para. 57)].
CONCLUSION
[136] For the reasons given, the application for a stay of the charges on the basis of entrapment is dismissed. Convictions will be entered on all four counts.
GARTON J.