Court File and Parties

Barrie Court File No.: CR-14-185 Date: 2016-05-17 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Kara Darnley, Defendant

Counsel: Jason Nicol, for the Crown Angela McLeod, for the Defendant

Heard: April 13, 2016

Ruling on Application for a Stay

Healey J.

Nature of the Application

[1] On April 13, 2016, Kara Darnley was found guilty by a jury of two counts of breach of trust by an official contrary to s. 122 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] She now moves for a stay of the proceedings in regard to the conviction for one of those counts, on the basis of entrapment.

The Facts

[3] Kara Darnley is an Ontario Provincial Police (OPP) officer employed by the Huronia West Detachment at the time of the conduct that led to the charges. Based upon serious concerns about the propriety of Darnley’s activities while off duty, particularly in connection with her fiancée, Jody Vanier, the OPP decided to launch an investigation into her conduct (“the Darnley investigation”). The concerns were centred around Darnley’s alliances with individuals who were known to be associated with the drug culture in Wasaga Beach, where she lived.

[4] It began with an incident on December 20, 2010, when Darnley, while off duty, was present at a social gathering. Darnley was aware of the fact that other individuals at the social gathering were smoking marijuana. The gathering took place at the residence in which Vanier and his roommate, Mike Drozdoski, resided. Later that evening, a domestic incident occurred that resulted in charges being laid against Mark Jeffrey, who resided in the same home as Vanier, although in a separate, upper storey apartment. As a result of that incident, police attended and witness statements were taken from Darnley, Vanier, Drozdoski, and the complainant Marie Christine Kuyvenhoven, who was the partner of Jeffrey. The police also found 400 grams of marijuana, individually packaged, in Jeffrey’s apartment. Jeffrey was charged with mischief to property and possession for the purpose of trafficking.

[5] This gathering was described by Sergeant Lloyd, who eventually became the primary investigator into Darnley’s conduct, as a “hot tub gathering” with marijuana being passed around. As such, it was easy for the OPP to conclude that Vanier and Drozdoski were in more than a landlord-tenant relationship with Jeffrey. The OPP questioned whether Jeffrey was a supplier to Drozdoski and/or Vanier.

[6] The next event in the chronology was that Darnley rented a room in her home to Robin Woodward. Woodward was a person known to the Huronia West Detachment’s drug unit as the estranged domestic partner of the most notorious cocaine dealer in Wasaga Beach and was herself an admitted cocaine user. In response to this information, on December 1, 2011, Lloyd, who at the time worked as a detective in the drug unit, was assigned as the primary investigator into Darnley’s conduct. Darnley was contacted by another officer, Bates, who told her about Woodward’s drug use; Darnley told him that she had no knowledge of Woodward’s drug use and asked Bates not to tell anybody about her association with Woodward.

[7] For four consecutive days in January 2012, surveillance was carried out on Darnley’s residence, which yielded no evidence that she was associated with any one of the persons of interest to the OPP’s drug unit, or engaged in any illegal activity.

[8] On February 5, 2012, Lloyd was approached by an officer, Di Pietro. Di Pietro told Lloyd that another officer, Walmsley, had told Di Pietro two pieces of information regarding Darnley. Firstly, Walmsley stated that Darnley had told him that she had confronted Vanier about cheating on her and he was, at the time of the confrontation, “high as a kite on cocaine”. Secondly, Walmsley recalled Darnley telling him that she had once driven Vanier and his supplier to an alley behind the Future Shop in Barrie to drop something off. Darnley allegedly told Walmsley that she did not know what had been dropped off. She claimed that she did not ask; she never does.

[9] Lloyd clarified with Di Pietro that Walmsley believed this trip to the alley behind the Future Shop had been a drug drop. Lloyd testified that this conversation between Walmsley and Di Pietro had occurred at a gathering at Walmsley’s home earlier that winter. Darnley, despite being in the same platoon, was not invited to the gathering by Walmsley because of what she had relayed to him. Accordingly, although Lloyd could not testify as to when the alleged “drug drop” had occurred, he believed it to be close in time to the social gathering.

[10] Further surveillance was conducted in late February 2012 for the purpose of observing the lifestyle and associates of Darnley and to determine if Woodward was residing at Darnley’s address. The surveillance also aimed to confirm whether Vanier and Darnley were participating in any criminal activity, including drug trafficking. No evidence was garnered. Surveillance of Vanier was also conducted in February and March 2012, with no significant results.

[11] As part of the Darnley investigation, the OPP decided to place another officer, Constable Heidi Fischer, with Darnley in an undercover capacity. Fischer entered the scene on March 23, 2012. Fischer was instructed to befriend Darnley. Fischer was also instructed to depict herself as a “problem child” officer who had attracted negative publicity because of having been charged with speeding while on duty. Fischer was to claim that this had resulted in professional discipline and her transfer out of the Midland Detachment to the Huronia West Detachment. Fischer was to present herself to Darnley as feeling ill-treated by their governing association, the Ontario Provincial Police Association. This was expected to assist in creating a bond between the two officers, as Darnley had herself been through a recent disciplinary proceeding arising from her exposure to marijuana use on the night of December 20, 2010.

[12] Fischer testified at trial that the story worked; Darnley and she were paired together as partners more often than not and quickly became friends and confidantes in matters both personal and work-related.

[13] Three days later, on March 26, 2012, the trial involving Jeffrey was scheduled to begin. Lloyd testified that the Niche Audit Log from the previous day showed that while she was working Darnley accessed the Report Management System database to pull up the witness statements given in the Jeffrey prosecution by herself, Drozdoski, Vanier, and Kuyvenhoven. Fischer testified that on that same day, Darnley called her to the photocopier/printer at the end of their shift to request her assistance with a paper jam. One of the documents that Fischer saw in the printer appeared to be a statement with Darnley’s name on it.

[14] Fischer and Darnley drove together from the detachment to the courthouse to attend the Jeffrey trial. Fischer testified that Darnley told her that she had printed off the witness statements so that she would know what Vanier and Drozdoski would say. Darnley told Fischer that she, Vanier, and Drozdoski had looked at the statements together. Fischer also saw her pull a paper out of her side pocket, and at the top of the paper she saw the name “Christine”.

[15] Lloyd testified that Detective Tony Marcic was the officer in charge of the Jeffrey trial. Since Lloyd was not in charge of the Jeffrey trial, he was unaware of who had prepared the witnesses for the trial and could not say definitively that the witnesses had been prepared.

[16] The above facts became the basis of two of the three charges laid against Darnley in this proceeding, one for breach of trust and one for obstructing justice. She was convicted of the former and acquitted of the latter. Marcic did not testify and was not interviewed in connection with the Darnley investigation until after her arrest in July 2012.

[17] On March 27, 2012, Fischer reported to Lloyd that she had been to Darnley’s home and that it was immaculate, with no evidence of drug use. About two months later, Fischer reported to Lloyd that Darnley told her that she had stolen police t-shirts. In those months, however, nothing gave to raise suspicions that Darnley was involved in illegal activity, other than her known association with Vanier and his association with individuals who were of interest to the police.

[18] However, in April 2012, another suspected breach of confidential information occurred. At that time, Lloyd was involved with another covert operation in conjunction with the RCMP that involved a wiretap in the Wasaga Beach area. In the course of that investigation, it became necessary for Fischer and Darnley to become aware of the wiretap. Lloyd’s testimony was not clear as to what other information they were given. Fischer and Darnley were ordered not to disclose any information about the RCMP wiretap. Lloyd testified that he then received information within days that Darnley had leaked this information to Vanier and another individual who worked at the local army base. Exactly what information was leaked remains unclear. However, Lloyd testified that Darnley’s actions in this regard played into the decision to take more proactive steps to investigate her conduct, as discussed below.

[19] In May 2012, a confidential informant advised Lloyd that he knew and worked in construction with Jason Gormley, as well as Vanier and Preston White, and that he was present when Vanier bought a gram of cocaine from Gormley. The informant advised that he did not know Darnley and did not know whether Darnley was aware that Vanier was using cocaine. No evidence was provided by that informant that suggested Darnley’s involvement in drug activity.

[20] The Darnley investigation was taken up a notch in June 2012 when Lloyd was provided with recording equipment and two integrity plays were implemented. Lloyd was tasked by his superiors to carry out the first of two “integrity plays” in the Darnley investigation because of four factors: (1) the presence of drugs at the Jeffrey residence in December 2010, (2) Darnley and Vanier’s presence at that location, (3) Darnley’s dealings with the witness statements, and (4) Darnely’s leaking of the wiretap. He testified that the decision to develop and implement the first integrity play was made by command staff in the weeks following the Jeffrey trial date, but could not say exactly when.

[21] In the first integrity play, undertaken on June 10, 2012, the following documents were placed in a yellow folder marked “confidential”: a falsified OPP surveillance request form, along with photos and background checks on documents containing confidential information about Vanier’s associates, Gormley, White, and Drozdoski. Lloyd deliberately left the folder on the Huronia West Detachment photocopier when Darnley and Fischer were working the night shift together. He testified that it was his hope that Darnley would, upon discovering the folder, contact him to discuss her discovery.

[22] That evening, Fischer asked Darnley to attend the photocopier/printer to pick up a document for her, with the expectation that she would see the file. Darnley returned without mentioning anything about the folder. Sometime later that evening, Fischer again asked Darnley to attend the photocopier/printer to pick up documents that she printed. Fischer next received a text message from Darnley asking her to come downstairs to the photocopier/printer. Fischer saw Darnley with the yellow folder. Fischer testified that Darnley was clearly alarmed and showed her the documents inside the folder.

[23] Fischer wore a concealed recording device and their ensuing conversation was recorded, although some parts of it remain unintelligible. Darnley’s initial reaction, apart from distress over what she had found, was focused on grappling with whether she was going to tell her fiancée. She made the remark: “If I tell Jody he might tell them. Not good.”

[24] Darnley then stated that she was going to take a picture; she proceeded to take pictures of the folder and some of its contents using her personal iPhone. These photographs were later seized in the execution of a search warrant regarding Darnley’s iPhone.

[25] Fischer and Darnley then went to Darnley’s home during the same shift. Fischer remained on the couch while Darnley went into the bedroom with Vanier. Fischer heard them conversing between the hours of 1:15 a.m. and 3:00 a.m. Later that morning, after Darnley woke up, she told Fischer that she had spoken with Vanier and had shown him the pictures on her iPhone. Before they parted ways at the end of their shift, Darnley again told Fischer that she had shown Vanier the pictures and read the investigative report to him.

[26] Darnley’s response led to a second integrity scenario being implemented by the investigative team on June 18, 2012. In the second scenario, the yellow file folder used in the first scenario was placed into a banker’s box with a thumb drive. The banker’s box was labeled “Lloyd’s Surveillance Box”. The box was purposely left out in the crime unit on the top of a filing cabinet by Lloyd’s desk. Again, Darnley and Fischer were working the night shift. The two officers returned to the detachment at about 11:00 p.m. that evening. Fischer testified that Darnley began to look into the women’s washroom and the Sergeant’s office to make sure that no one was there, and went into the crime unit to look out of the window at the parking lot. Darnley then began to look for other information and located the box on top of the filing cabinet. These events are captured on videotape. The videotape shows that Darnley opened the box and inspected the documents. The two officers went to the Constables’ area, and returned to the crime unit later that evening, at which time Darnley took photographs of the documents in the box. These actions were also captured on the videotape.

[27] The next day, the two officers were again working together. In response to a call from Vanier, they went to Darnley’s home. The three of them had a conversation about the drug use, or lack thereof, of the three individuals cited in the surveillance request (White, Gormley, and Drozdoski). At the end of the conversation, Darnley stated, “I’m telling you this to protect me and you.”

[28] Darnley was arrested on July 4, 2012 and charged with breach of trust and obstructing justice in relation to the events surrounding the Jeffrey prosecution, and breach of trust in relation to obtaining and releasing material to Vanier that she believed to be confidential police information regarding White, Gormley, and Drozdoski.

[29] Walmsley was not interviewed until after Darnley’s arrest. At his interview on July 6, 2012, Walmsley described his conversation with Darnley regarding the drug drop in the alley behind Future Shop. Walmsley recounted that he told her that she was being naive. Walmsley also told the interviewer that Darnley told him that following a disagreement, Vanier went out for the night and got drunk; the next morning, he was still drunk and may have still been under the influence of “coke”.

The Law

[30] In R. v. Mack, [1988] 2 S.C.R. 903, paras. 130-153, the Supreme Court of Canada set out the elements of the doctrine of entrapment, which I summarize as follows:

1. Entrapment arises either: (i) when the authorities provide an opportunity to persons to commit an offence without reasonable suspicion that those individuals are already engaged in criminal activity or pursuant to a bona fide investigation for the purpose of repression of crime, or (ii) although having 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;
2. The presence of reasonable suspicion or a bona fide inquiry will never justify entrapment techniques;
3. There must be a rational connection and proportionality, both temporally and substantively, between the past conduct of the accused and the provision of an opportunity, since otherwise the police suspicion will not be reasonable;
4. As far as possible, an objective assessment is to be made of the conduct of the police and their agents, with the focus being kept off of the effect of the police conduct on the accused’s state of mind;
5. The pre-disposition or suspected criminal activity of the accused is relevant only in considering whether the authorities were justified in providing the accused an opportunity to commit the offence;
6. In considering whether the police have used means that go further than providing an opportunity, the court will consider a number factors such as the following: (a) The type of crime being investigated and the availability of other investigative techniques; (b) Whether an average person in the position of the accused, with both their strengths and weaknesses, would be induced into the commission of a crime; (c) The persistence and number of attempts made by the police before the offence was committed; (d) The type of inducement used by the police, including deceit, fraud, trickery, or reward; (e) The timing of the police conduct, in particular, whether the police have instigated the offence or become involved in ongoing criminal activity; (f) Whether the police conduct involved an exploitation of a human characteristic such as friendship, compassion, and sympathy; (g) Whether the police appear to have exploited a particular vulnerability of a person, such as mental handicap or substance addiction; (h) 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; (i) The existence of any threats, implied or expressed, made to the accused by the police or their agents; and, (j) Whether the police conduct is directed at undermining other constitutional values.
7. The entrapment issue should only be decided after the Crown has proved beyond a reasonable doubt that the accused is guilty; in a jury case, the judge determines the entrapment issue;
8. The burden of proof of entrapment is on the accused on a balance of probabilities. While he or she need not show that the police conduct shocks the community, the doctrine of entrapment will only be made out in the clearest of cases. The “clearest of cases” are those in which the accused has shown, by a preponderance of evidence, that the administration of justice has been brought into disrepute by the conduct of the state; and,
9. Where the doctrine of entrapment is made out, the appropriate remedy is a stay of proceedings, not an acquittal.

Reasonable Suspicion and Bona Fide Inquiry

[31] As explained in Mack, entrapment arising where the police have no reasonable suspicion would be rare, as common sense suggests that the police would not waste limited resources attempting to attract random individuals into the commission of offences: Mack, at paras. 113-115.

[32] The parameters of the reasonable suspicion standard were summarized by Hill J. in R. v. Williams, 2010 ONSC 1698, 2010 CarswellOnt 1956, at paras. 44–47. In summary, a reasonable suspicion is a less demanding standard than reasonable grounds, having been described in Mack, at para. 117, as a standard that is not “unduly onerous”. The totality of circumstances, viewed as a whole, must be considered in assessing whether a reasonable suspicion exists: R. v. Jacques, [1996] 3 S.C.R. 312, at para. 25. As stated in R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 72, if the facts objectively indicate the possibility of criminal behavior in light of the totality of the circumstances, the objective component of the reasonable suspicion standard has been satisfied. See also R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 31.

[33] None of the authorities suggest that investigators must conclusively verify their suspicions before providing a person with an opportunity to engage in that offence. Yet the level of suspicion must rise above more than a hunch based on intuition or a feeling: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 30, 35, and 40-41, and R. v. Barnes, [1991] 1 S.C.R. 449, at p. 460.

[34] In this case, there is no question that the investigative team involved in the Darnley investigation was motivated by anything other than the genuine purpose of investigating and repressing criminal activity. That activity included both drug trafficking and Darnley’s breach of her obligations as a police officer. On the facts of this case, it is impossible to disentangle those two underlying motivations for the Darnley investigation and the decision to initiate the first integrity play.

[35] Reasonable suspicion was raised about Darnley’s alliance with those involved in the drug culture by virtue of her attendance at the social gathering at the Jeffrey home, her link to Woodward, and her decision to share witness statements with potential witnesses. Her potential disregard for the duties of her office was further highlighted by her provision of information to Vanier about the wiretap. She communicated the existence of the wiretap to Vanier within days of being told of its utmost confidentiality.

[36] The first integrity play targeted the investigation team’s suspicion that Darnley was engaging in activity amounting to breach of trust due to her fiancée’s involvement in drug use or trafficking. I conclude that there was a rational connection between the crime being investigated and the opportunity offered to Darnley by the first integrity play.

[37] Counsel for the defence argued that the following factors point to a lack of objective, verified information sufficient to justify moving forward with the first integrity play: the failure to verify both the alleged “drug drop” near Future Shop and Vanier’s use of cocaine, as well as the vagueness of the content of Darnley’s disclosure to Vanier about the wiretap. I disagree. Even considering the lack of verification and vagueness, it would have been justifiable for the investigative team to provide an opportunity to Darnley to commit an offence related to breaching confidentiality. The Jeffrey incident and her ensuing conduct related to that prosecution, along with her links to Woodward, Vanier, and his work associates and friends, alone provide sufficient justification to provide Darnley with an opportunity to commit an offence.

[38] Even if I am wrong in this, the information coming from the confidential informant in May 2012 became a strong link in the investigatory chain; even without the “drug drop” conversation and wiretap leak, this information was sufficient to raise suspicion to the level that the first integrity play was justified. That informant’s direct experience on the construction site enforced the suspicion, albeit in an unconfirmed way, that Vanier used cocaine and that his friend, Gormley, was the supplier. This information lent credence to the investigative team’s concern that Darnley might be inclined to breach the duties of her office in order to shield both Vanier and herself from any drug-related investigation.

[39] That being the case, the evidence satisfies me that the content of the first integrity play was an entirely appropriate response to the reasonably held suspicions of the police. The scenario that was developed was not one that was meant to lead to the revelation that Darnley was, herself, a drug trafficker, as any evidence of drug-related criminal activity on her part was essentially nonexistent. However, the scenario targeted the possible nexus between drug-related criminal activity of Vanier and his associates, and Darnley’s role in protecting Vanier from OPP investigation.

[40] Darnley’s response to the first integrity play (i.e. taking photographs of the documents in the confidential folder and discussing their contents with Vanier), provides ample reason to believe that she would do so again. The investigative team’s decision to implement the second integrity play, then, cannot be criticized.

[41] Accordingly, I conclude that the OPP reasonably held the necessary standard of suspicion to engage in the integrity plays and, therefore, the first branch of the doctrine of entrapment has not been made out in this case.

Inducement of the Commission of an Offence

[42] The argument of the defence in relation to inducement centres around the interactions of Fischer and Darnley in relation to the two integrity plays. I find that there is no basis upon which to conclude that there was inducement of the type necessary to rise to the level of entrapment. The type of inducement that encompasses entrapment occurs when “the police have gone beyond merely providing the opportunity for the commission of a crime and have entered into the realm of the manufacture of criminal conduct”: Mack, at para. 124.

[43] The thrust of the defendant’s argument is that by introducing Fischer into the scenario, the OPP exploited the loyalties existing between platoon members and the personal friendship that Darnley believed to have developed between the two officers. The latter is shown by the fact that the women spent time together on their days off and shared confidences about their work and personal lives. It was argued that Fischer stepped over the line by making comments that insinuated that she and Darnley were a team, comments such as “I’ve got your back”, the use of the word “we”, and agreeing to act as a lookout while Darnley inspected and photographed the documents on both occasions.

[44] It is also suggested that Fischer, by her comments, prodded Darnley in the direction of sharing the information with Vanier, and that she guided her away from a potential decision to tell Lloyd about her discovery of his investigation into Vanier’s acquaintances.

[45] Addressing first the deployment of Fischer in an undercover capacity, there is nothing about the timing of this police method that causes concern. As discussed above, by March 2012 the OPP had sufficient reason to suspect that Darnley was prepared to compromise her position by sharing information for a purpose that did not benefit the public, a purpose other than investigating and controlling crime.

[46] The strategy used by the OPP is understandable in the circumstances, and is comparable to the use of undercover agents to infiltrate criminal organizations to gain the confidence of the people involved, as discussed in Mack, at para. 126. It is easy to understand why it was important for Fischer to foster an environment in which Darnley would feel free to act without reservation; I can think of no other potential investigative technique that would as effectively provide for the gathering of evidence in this case. Given that Darnley was suspected of releasing information to her fiancée, it was all the more necessary that Fischer enter the private realms of Darnley’s life.

[47] Even though Fischer presented herself at times as a co-conspirator, at no time did she suggest to Darnley that she should look inside the folder or take pictures of it during the first integrity play, nor did she say anything to Darnley to prompt her to look inside the box and take photographs of its contents during the second integrity play. In terms of acting as a “lookout” while Darnley took photographs, I accept that the evidence supports Fischer’s testimony that she was simply responding to Darnley’s cues, verbal and non-verbal, to keep watch while Darnley undertook her intended actions. There was nothing about Fischer’s comments that incited or encouraged Darnley to carry out her searches, or inspect and photograph the documents in question.

[48] I turn now to the allegation that Fischer used her relationship with Darnley to steer Darnley toward disclosing the information that she found to Vanier. I agree that Darnley’s comments following the discovery of the yellow folder indicate that she initially grappled with the decision to tell Vanier. However, Darnley eventually made two definitive statements on the night that she found the folder: “I’m gonna ultimately say something sometime cuz I can’t not say anything knowing all the information and allow him to go there”, and “I have to tell him so he doesn’t get in shit over not getting me in shit”. Even though Fischer told Darnley five times that she would go with her to tell Vanier, Fischer also chose wording that indicated that it would be Darnley’s choice to do so. Ultimately that is what occurred; with no prior prompting from Fischer to make a telephone call to Vanier, Darnley called him to alert him to the fact that the two of them needed “to talk” and that he could no longer “go there”. This phone call was a precursor to Darnley going home that same night, accompanied by Fischer, and showing to Vanier the pictures that she had captured on her iPhone earlier that evening.

[49] At the time of the second integrity play, there were no comments made by Fischer that can be characterized as propelling Darnley toward the decision to discuss her discovery with Vanier, yet she did.

[50] The exchange that is the subject of the allegation that Fischer dissuaded Darnley from speaking with Lloyd took place on June 18, 2012, after Darnley’s sighting of the box and inspection of its contents. Defence counsel argues that, taking into account the context of the exploitation of friendship and Darnley being led to believe that her police partner could be trusted, the comments made by Fischer influenced Darnley not to approach Lloyd. To the contrary, I find that when Darnley first mentioned the idea of not approaching Lloyd and began to hypothesize about the repercussions of doing so, [1] Fischer’s sole response, three times in a row, is “yeah”. During her comments, Darnley seemed to be wonder whether Lloyd had made a connection between the individuals named on the box, Vanier, and herself. Darnley then stated, “if he’s leaving it there in front of…”. I infer this to mean that Darnley was doubtful that Lloyd had made the connection between the named individuals and herself, since he would likely not have left the box in plain view if he had. Fischer responds by making comments to the effect of Lloyd being busy and careless, and continues “…that’s probably what he’s thinking right like they’re not gonna ring a bell, like he’s and maybe he’s not even, that’s not even an issue…like he’s not even thinking that of putting the two and two together...”.

[51] To the extent that this comment may have reinforced in Darnley’s mind that Lloyd had yet to uncover the connection, it may be argued that it influenced Darnley’s decision to remain silent. Looking at the entire context, however, Darnley herself did not see this as the only possible scenario, as she mused that Lloyd might already know that Vanier worked with the individuals being targeted. Further, Darnley did not seem to give her own idea to approach Lloyd serious consideration; she shifted the brief conversation away from the topic after only a few statements, and then went on to take photographs. It is also to be remembered that, by the time this conversation took place, Darnley had already engaged in conduct that amounted to a breach of trust by revealing the information and photographs to Vanier after the first integrity play, without ever mentioning a thought of approaching Lloyd.

[52] Accordingly, I cannot accede to the argument that Fischer’s impugned comments acted as any kind of catalyst to induce Darnley to take the steps that she took at the time of the second integrity play.

[53] Another consideration is whether an average person, with both strengths and weaknesses, in the position of the accused, would be induced into the commission of this crime by the actions taken by the police: Mack, paras. 120 and 133. The utility of this test was described in para. 116 of Mack as follows:

[116] In other words, it may be inevitable that when apprised of the factual context of an entrapment case, members of the community will put themselves in the position of the accused; if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety.

[54] This aspect of entrapment seems to target another concern underlying the doctrine, namely that investigative techniques should not prey on qualities of human nature that result in crimes being committed by those who would otherwise not have engaged in criminal conduct.

[55] The question is whether the “average person” should be ascribed the same “strengths and weaknesses” as the particular accused, in this case a police officer. I think that this must be so, as the test suggests that we are to consider the scenario as viewed through the eyes of someone “in the position” of the accused. The hypothetical average citizen may not, for example, understand all of the repercussions of the release of confidential police information and may not be fully apprised of an OPP officer’s duties to uphold his or her sworn oath of secrecy and oath of office. As a result, he or she may find it understandable that Darnley could be easily lured to reveal confidential information to her fiancée. But another officer, in the same position as Darnley, is not likely, in my view, to come to the conclusion that any OPP officer faced with the two integrity scenarios would have inevitably been induced to commit a breach of trust given his or her knowledge of their obligations.

Disposition

[56] Having regard to all of the factors outlined in Mack, at para. 133, I reach the conclusion that the OPP, having had a reasonable suspicion, did not go beyond providing an opportunity to Darnley.

[57] Accordingly the application for a stay of the proceeding on the basis of entrapment is dismissed.

[58] Having reached this conclusion, I will not consider the further issue raised by the Crown, which is whether the test for imposing a stay of proceedings on the basis of abuse of process, set out in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32, is to be applied once a finding of entrapment has been reached by a reviewing court.

Healey J. Released: May 17, 2016

[1] Transcript of recording session 00054, page 6, line 197 to page 7, line 212.