CITATION: R. v. GOULD, 2016 ONSC 4069
COURT FILE NO.: CR-15-90000032-0000
DATE: 20160628
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Terry Gould
Defendant
Christopher Leafloor, for the Respondent
Brian Kolman, for the Defendant, applicant
HEARD at Toronto: May 9 and 11, 2016
Low J. (Orally)
[1] On May 2, 2013, the defendant trafficked 1.2 grams of powder cocaine to an undercover officer for $110. On May 14, 2013, he trafficked 13.29 grams of powder cocaine for $600. On May 23, 2013, he trafficked 13.44 grams of powder cocaine for $600. On June 14, 2013, he trafficked by offer of 62.61 grams of a substance held out to be powder cocaine in exchange for $2,400. All transactions were with the same undercover officer. On the last date, the defendant was arrested.
[2] The foregoing are the acts alleged in counts 1, 3, 5 and 7 (as amended). The defendant has pleaded guilty to those counts. The Crown has not proceeded with counts 2, 4 and 6 of the indictment.
[3] The defence seeks a stay of the charges to which Mr. Gould has pleaded guilty. The basis for the application is the argument that the undercover officer entrapped Mr. Gould into the first act of trafficking and that, but for the initial act of trafficking, none of the subsequent three acts of trafficking would have occurred.
[4] The investigation leading to this prosecution began with receipt by the Toronto police of information that the defendant was dealing in powder cocaine and that he was associated with a particular telephone number. There is no evidence as to the reliability of the source of information.
[5] The undercover officer briefed and assigned to investigate the tip was Detective Brent Johnston (detective constable at the time of the events). He was briefed by his superior that the police had received information that a Terry Gould was dealing powder cocaine; he was provided with a photograph of Terry Gould, his birthdate, and a telephone number for him. He was to organize an undercover purchase of cocaine.
[6] The starting point for the undercover officer was an uncorroborated tip about an identified target. The tip may have been good, or it may have been in error, or it may have been given out of malicious motives. I agree with the defence position that up to this point, in light of the absence of information as to reliability of the source and absent any independent investigation supporting the allegation, the police had but a mere suspicion as distinct from a reasonable suspicion that the defendant was dealing in cocaine (see R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 at para 75).
[7] On the evening of May 1, 2013, Officer Johnston, using an undercover telephone, placed a call to the telephone number for Terry Gould with which he had been supplied. In order not to alert the receiver of the call that he was an undercover police officer, Officer Johnston spoke in the coded street vernacular used in the drug culture to transact drug business.
[8] I am satisfied that the substance of the conversation that ensued was as follows:
Suspect: Yo
Johnston: Yo, “T”, what’s good?
Suspect: Aw, fuck, I’m fuckin’ pissed now
Johnston: What’s up?
Suspect : My fuckin dog got hit by a football
Johnston: Aw , shit. Yo, I just was lookin’ to see if you could hit me up.
Suspect: For what?
Johnston: Soft; blow.
Suspect: Ya, I’ll call you back. I’m just going to the vet’s
Johnston: Ya, no prob. Call me later. It’s Dean
Suspect: Ok.
[9] Officer Johnston testified as to the plain English meaning of certain words and phrases used in the conversation and I find that the foregoing conversation was coded for the following :
Suspect: Yo
Johnston: Yo, “T”, (no translation needed) What’s good? (are you available?)
Susp: aw fuck, I’m fuckin pissed now (no translation needed)
Johnston: what’s up? (no translation needed)
Susp: my fuckin dog got hit by a football (no translation needed)
Johnston: Aw, shit. (no translation needed) Yo, I just was looking to see if you could hit me up (I am wondering if are you are around to deal drugs to me)
Susp: For what? (what specific drug are you looking for?)
Johnston: Soft-- Blow (powder cocaine)
Susp: Ya, I’ll call you back. I’m just going to the vet’s (no translation needed)
Johnston: Ya, no prob. call me later. It’s Dean. (no translation needed)
Suspect. Ok. (no translation needed)
[10] No agreement to traffic arose out of the conversation. Similarly, no agreement to meet for the purpose of executing a trade arose out of the conversation.
[11] Subsequent to this conversation the defendant placed a call to Officer Johnston later the same evening. The officer missed the call and called him back at 9:38 p.m., two minutes later. The substance of that conversation, with translation into common English as disclosed in Officer Johnston`s evidence, is as follows:
Susp: yo
Johnston: Yo you called
Susp :Ya I’m back now if you need
Johnston: How’s your dog
[exchange about the dog follows, not reproduced here]
Johnston: So you around? (are you available; do you have drugs to sell?)
Susp: Yeah. What you need? (I am available and have drugs to sell. What drug do you want?)
Johnston: Half a blow (half a ball of powder cocaine--1.75 grams approximately..)
Susp: If I don’t call you tonight, I’ll call you tomorrow
[12] This conversation also did not result in an agreement of purchase and sale nor in an agreement to meet to execute a trade.
[13] The officer did not make a purchase from the defendant that night. He did so the following day, May 2, 2013. The transaction was preceded with further telephone contact during which a price negotiation took place:
Johnston: Can you do that for a bill? (a hundred dollars)
Suspect: Naw, I need a buck ten. (No, I need one hundred ten dollars)
[14] The defendant asked the officer where he was and told the officer where to meet him. The officer attended the location as directed, the RBC at Lawrence and Galloway Road and called Gould at 1010. The defendant appeared at 1011 and got into the officer’s undercover car. He gave a quantity of powder cocaine to the officer and the officer gave $110 to the defendant.
[15] After this transaction was concluded, subsequent telephone conversations occurred during which the undercover officer made two purchases of a half ounce of powder cocaine which transactions were concluded on May 14 and on May 23, 2013 with a price of $600 for each half ounce.
[16] In a further conversation, the officer sought two ounces of powder cocaine and a price of $2,400 was agreed to. On June 14, 2013, the defendant and the officer met at an agreed time and place at which point the defendant was arrested. In the glove compartment of the car in which defendant arrived were two baggies totalling 62.61 grams of what appeared to be powder cocaine but which, on analysis, turned out not to be that substance.
[17] The defendant’s position is that the initial telephone call from Officer Johnston from the first words to the last should be viewed as a whole, that it was the tendering to Mr. Gould of an opportunity to commit an offence, and that because the conversation occurred at a point in time when the officer had no more than a mere suspicion that the defendant was dealing drugs, the call was an entrapment of the defendant by police and therefore state conduct sufficiently egregious to warrant a stay of the charges under the principle in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903.
[18] Cases dealing with entrapment suggest that the point at which an opportunity is given to an accused to commit the offence of trafficking is the point at which the undercover officer makes an offer to purchase drugs, or “puts in an order”. The defendant relies in particular on two recent decisions of this court in support of the application: R. v. Williams, 2014 ONSC 2370, [2014] O.J. No. 1840 and R. v. Marino-Montero, [2012] O.J. No. 1287. The issue, as framed in Marino-Montero, was: first, when in time did the officer actually make the solicitation to purchase drugs, and second, when the offer to purchase was made, did the officer at that point in time have a reasonable (as opposed to a mere) suspicion that the accused was engaged in the criminal activity of drug trafficking.
[19] The undercover officer involved in both Williams and Marino-Montero was provided with as little information as the officer in the case at bar. As well, there was no evidence of any independent checking yielding confirmatory information. In Marino-Montero, the undercover officer placed a call to the number provided by the tip and, without more than identifying himself by a given name and alleging that a third person identified only by given name had given him the number, stated, “I need 40”. This was followed by a query by the accused as to the officer’s location.
[20] In Williams, the officer (coincidentally the same officer as in Marino-Montero) used the same opening upon making the call, but prefaced his order for “80” with the query “You around?” to which the accused replied, “who is this?”
[21] In both cases, the court held that the point in time at which the opportunity to commit an offence was tendered to the accused was the point at which the officer said “I need 40” and “I need 80” respectively and, that at that point in time, a reasonable suspicion that the interlocutor was engaged in drug dealing had not yet been developed.
[22] The case at bar can be decided on the narrow basis that the initial conversation that took place between Officer Johnston and the accused differed significantly from those in Marino-Montero and Williams in that Officer Johnston engaged in inquiries of the defendant to which the defendant’s responses yielded a reasonable suspicion that the defendant was engaged in the business of dealing drugs before the officer made an order for drugs.
[23] The officer was assigned the task of investigating the tip. The phone call to the number supplied was the initial step the officer took in that investigation. Each interaction in the conversation is capable of incrementally transforming what starts as a mere suspicion into a reasonable suspicion that the recipient of the call is in the business of dealing drugs. (See R. v. Stubbs, [2012] O.J. No. 1639 at para 10 and R. v. Williams, 2010 ONSC 1698, [2010] O.J. No. 1324 at para 14.)
[24] In the case at bar there is, first, the fact that the defendant engaged with the officer, an unknown person, rather than inquiring who the caller was or whether it may be a misdial -- the reaction reasonably expected of a person not engaged in the drug trade and receiving a call the content of which otherwise makes no sense. This suggests that the defendant is no stranger to the type of call or to the content of the exchange that takes place.
[25] Second, when the officer says, “I was just lookin’ to see if you could hit me up”, the response of “for what” is a good indication that the defendant understands the coded language and is responding in kind. A person not versed in the vernacular of the drug trade is not likely to respond as did the defendant. A person not versed in the drug trade vernacular would likely ask what his interlocutor was talking about. I am satisfied that by the time the defendant responded “for what?” the officer had acquired a reasonable suspicion that the defendant was engaged in illicit drug trade.
[26] The defendant’s response of “ya, I’ll call you back. I’m just going to the vet’s” when advised by the officer that it was “soft-- blow” merely confirmed what was already apparent by his earlier responses to things said by the officer.
[27] I do not agree with the argument that the entire conversation should or can be construed as an entrapping event and the giving of an opportunity to commit an offence virtually from the initial salutation. The revelation of oneself as being in the business of dealing in drugs in response to a coded inquiry to ascertain that fact is not logically an equivalent of entrapment.
[28] The decision in R. v. Le, 2016 BCCA 155, [2016] B.C.J. No. 716; 2016 BCCA 155, at para 92 holds that asking someone if he can “hook a person up” with drugs is not in and of itself an entrapment. I am of the same view concerning the phrase, “looking to see if you could hit me up”.
[29] In my view, nothing in the conversation between the defendant and the undercover officer in the initial conversation amounted to an offer to purchase a specific product at a specific price as the court held was the case in Merino-Montero and in Williams; what did occur was a coded inquiry as to whether the defendant was in the business of dealing drugs which the defendant, both by the manner and by the content of his reply, affirmed.
[30] I find that by the end of the initial conversation between Officer Johnston and the defendant, there was a reasonable suspicion on the part of the officer that the defendant was in the business of dealing drugs and that there was no solicitation to purchase any quantity of drug. It was not until after the defendant telephoned the officer later in the evening that the officer made an “order” by stating the quantity of substance that he wanted to buy, and it was not until the following day that a negotiation of price took place resulting in an agreement of purchase and sale. In my view, and using the criterion of the existence of an offer to purchase a quantity of a type of product – even without stipulation as to price – as the point at which an opportunity is proffered to the defendant to commit an offence, the “opportunity” was not given until well after the officer had acquired a reasonable suspicion that the defendant was a drug dealer.
[31] As the onus is on the applicant to show entrapment on a balance of probabilities, I am of the view that the onus has not been met. The foregoing is sufficient basis for dismissal of the application, but I am in any case not persuaded that a telephone purchase order made for the purpose of investigating a tip concerning a possible cocaine dealer who has been identified by name, telephone number, birthdate and photograph is the type of action contemplated in R. v. Mack as an abuse of process bringing the administrative of justice into disrepute and thus warranting a stay of proceedings.
[32] At paragraph 114 of the Mack decision, the court summarized: “… the police must not, and it is entrapment to do so, offer people opportunities to commit crime unless they have a reasonable suspicion that such people are already engaged in criminal activity or, unless such an offer is made in the course of a bona fide investigation. In addition, the mere existence of a prior record is not usually sufficient to ground a “reasonable suspicion”. These situations will be rare, in my opinion. If the accused is not alleging this form of entrapment the central question in a particular case will be: have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?”
[33] Mack contemplates the legitimacy of providing an opportunity to commit an offence in the course of a bona fide investigation. The mischief sought to be abated by the court’s disapproval of entrapment tactics is the danger that police conduct, where it amounts to random virtue testing, will ensnare innocent and otherwise law abiding individuals into the commission of a criminal offence that, but for the police conduct, would not occur. The bona fides of an investigation is not conditional upon a reasonable suspicion that a particular target has been engaged in criminal activity. In my view, the concept of a bona fide investigation is not complicated: it is bona fide if it is genuine; it is bona fide if it is not animated by caprice or malice.
[34] In the case at bar, there is no element of randomness; this was a targeted investigation originating in a tip from a member of the public. There was no evidence that Officer Johnston’s investigation of the tip was anything other than genuine. The police have a duty to investigate when provided information that a particular individual is engaged in the serious criminal activity of trafficking in powder cocaine. Such a targeted investigation should surely be viewed no less as bona fide than one concerning persons who, by happenstance, are found in a geographical area reported to be a centre of criminal activity as discussed in Mack (and see also R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449 and R. v. Imoro (2010), 2010 ONCA 122, 264 O.A.C. 362, aff’d 2010 SCC 50).
[35] In my view, there is little to distinguish the case at bar from R. v. Virgo (1993), 1993 CanLII 1322 (ON CA), 67 O.A.C. 275. There is no evidence to suggest that Officer Johnston’s investigation of the tip was anything other than bona fide. There is no hint of improper or oblique motive.
[36] Turning then to whether, in the conduct of the investigation, the officer went over the line into conduct that can be characterized as abuse of process, there is no evidence of threats, trickery, deceit, persistent pressure or offer of reward; there is no evidence of an appeal to compassion, pity, sympathy or friendship, as none of these could be engaged in the circumstances.
[37] Applying the principles in Mack, it is apparent what where a bona fide investigation is embarked upon in the absence of a reasonable as opposed to a mere suspicion that the target is engaged in criminal activity, and an opportunity is given to the accused to commit an offence, entrapment is made out only if the police have engaged in tactics that are, in all the circumstances of the particular case, so unfair as to be repugnant to a conviction standing in reliance on those tactics.
[38] Such a state of affairs is not shown here.
[39] The application is therefore dismissed.
___________________________ Low J.
Released: June 28, 2016
CITATION: R. v. GOULD, 2016 ONSC 4069
COURT FILE NO.: CR-15-90000032-0000
DATE: 20160628
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Terry Gould
Defendant
REASONS FOR JUDGMENT
Low J.
Released: June 28, 2016