CITATION: R v Reid, 2016 ONSC 954
COURT FILE NO.: CR-13-90000014-0000
DATE: 20160208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOEL REID
Defendant
Sam Siew and Chris De Sa, for the Crown
Chris Rudnicki, for the Defendant
HEARD: January 25-26, 2016
E.M. Morgan J.
[1] The Defendant pleaded guilty to three counts of trafficking in crack cocaine and one count of possession of the proceeds of crime. He now applies for a stay of proceedings based on the defense of entrapment.
I. Background
[2] On November 7, 2011, an undercover police officer, P.C. Tiffany Castell (now Sgt. Castell), contacted the Defendant on his cell phone. Another officer, D.C. John Burrell, had relayed to her the phone number and told her to request to speak with “Billy” in order to set up a drug deal. Officer Burrell had been given that phone number by a confidential informant, who told him that this was a number used by a drug dealer.
[3] Officer Castell, an experienced Toronto police drug squad officer, called the number at just after 7:00 p.m. After a short conversation, the Defendant agreed to sell the officer $60 worth of crack cocaine. She drove that same evening to an address that he gave her, and called the Defendant at the same phone number to say that she had arrived. The Defendant instructed her to proceed to another address, where he met her and got into her car and instructed her to drive to yet another location.
[4] The two of them drove to the new address, stopped for a moment, and then turned around and went back to where they had previously been. When they finally stopped, the Defendant took out a quantity of what appeared to be crack cocaine, chipped off several small pieces, put them into a plastic wrapping, handed it to Officer Castell, and put the remaining quantity back in his pocket. The officer took the substance, which turned out to be 0.36 grams of crack cocaine, and handed him $60 in bills that had been specifically issued to her and identified as police ‘buy money’.
[5] The following day, Officer Castell again called the same cell phone number. This time, the same man agreed to sell her $100 of crack cocaine. They again met at a pre-arranged address, and exchanged $100 for 1.2 grams.
[6] The day after that, Officer Castell followed a similar routine. She called the cell number, spoke with the same man when he answered the phone, met him at a pre-arranged address and exchanged $100 for 1.4 grams of crack cocaine. The Defendant was followed by other police officers who were part of Officer Castell’s investigation team, and shortly thereafter the Defendant was arrested and found in possession of the police buy money.
[7] At the outset of the hearing, the Defendant, along with his counsel, indicated that he agrees with these facts. With these agreed facts, it is “absolutely clear that the Crown had discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence[s]”: R v Mack, 1988 24 (SCC), [1988] 2 SCR 903, at para 146. It is therefore appropriate that the application for a stay based on the alleged entrapment now proceed.
II. The initial conversation
[8] Officer Castell was the sole witness on the entrapment application. She testified that she did not know the confidential informant who supplied the phone number of the suspected drug dealer, and she did not know much about him. Rather, she indicated that she relied on Officer Burrell who advised her that the informant’s information could be acted upon.
[9] Officer Castell called the number she had been given, and upon hearing a male voice answer the phone she immediately asked, “Hey, you around?” She testified that in her experience, that phrase was a form of street code for asking if the person on the other end of the phone was prepared to sell drugs, or was “open for business”.
[10] The man asked her who was calling, to which Officer Castell responded, “Keisha”. He then asked, “Keisha who? From where?”
[11] In response, Officer Castell told the man a fictitious story that she had prepared about having been given his name by some women she met at a downtown bar. She told him that she was drunk at the time so that she cannot recall the women’s names. The officer kept the background story brief, and did not mention drugs. She simply said that she had been given his number, and assumed that her initial inquiry would signal what she was calling about.
[12] Officer Castell continued in her testimony to relay the balance of the telephone conversation. After telling the man the story about the bar, he said, “Okay”, and then hesitated momentarily as if he were trying to think about the story she had just related. She then said, “Can I get a 60?”, to which he replied, “Yeh, you driving?”
[13] She testified that she knew from her drug squad experience that the reference to “a 60” meant $60 worth of crack cocaine. She said the man on the other end of the phone did not hesitate before giving her his affirmative response. He did not question what she meant, nor did he ask any variation of ’60 what?’, as a non-drug dealer would doubtless ask.
[14] Officer Castell also testified that had the man indicated anything other than an affirmative response, or had he responded in a way that suggested that he did not understand the question, she would have terminated the call. She was clear that it was not part of her investigative plan to push the conversation beyond the initial inquiry if the person on the phone did not respond in a way that indicated he was prepared to sell her drugs.
[15] The man gave Officer Castell directions to an address in the Keele and Lawrence area where they were to meet. After engaging in some roundabout driving back and forth to different locations, which Officer Castell surmised was a “heat check” designed to ensure that she had not been followed by the police or a rival dealer, they parked in front of the initial address. Eventually, Officer Castell observed that after chipping off some small chunks of rock-like substance and handing it to her, the man put the remaining larger piece back in his right pants pocket. He then counted the money she handed to him before crumpling it up in his hand.
[16] Immediately after that, she said to him, “Thanks, eh.” He responded, “No problem. Holler at me if you need more.” They then exchanged names – she told him her name is Keisha and he told her his name is Junior – and he left the car and went into the building.
III. The second and third conversations
[17] The next day, November 8, 2011, Officer Castell called the same phone number at 9:05 p.m. The man she now knew as Junior answered and said, “Hey girl, what are you saying?” The officer replied, “I need a hundred, you around?
[18] The man replied, “I’m out in Mississauga and will be in your area soon.” They arranged to meet in a half hour. Officer Castell reported the conversation to D.C. Burrell and Det. Dan Robinson, who were in charge of the operation and who issued her $100 in identifiable bills.
[19] She then proceeded to the pre-arranged address, called the man on his cell phone, and greeted him with, “Hey”. He told her that he was still in Mississauga waiting for his ride, to which Officer Castell replied, “Make sure you bring me a good hundred, eh, the 60 was a bit light.” He responded, “For sure.”
[20] Officer Castell waited in her car for some time, and then at 10:56 p.m. contacted him again on his cell phone. She testified that she told him, “Yo man, you almost here, I got someplace to go”. He then gave her new directions for meeting him, and she said, “Ok man, hurry up.”
[21] She related that she called him one more time to check on his progress, and that he finally arrived at around 11:20 p.m. She testified that she saw him enter the parking lot and that he proceeded to get into her vehicle. She told him, “Yo, you have me waiting so long man.” He replied apologetically, “I know, I know, I put an X twenty in there for making you wait.”
[22] Officer Castell indicated that he opened his right hand and took out a plastic wrapper with several chunks of crack cocaine. He handed the drugs to her, and she gave him the $100 of police buy money. He then asked her what she’s doing tonight, and she said “Nothing, just chilling out with my brethren in Scarborough.”
[23] He ended the conversation by saying, “Alright, link me then.” Officer Castell understood this to be an invitation to call him again for more drugs.
[24] The very next evening, November 9, 2011, Officer Castell called same number. The same recognizable man’s voice answered and said, “Hey, what’s up.” She replied, “Hey, you around.”
[25] The man told her that he was currently at a B Plus gas station and related to her where it was located. She responded, “Ok cool, I need a next hundred.” They arranged to meet.
[26] Officer Castell was again issued $100 in police buy money. At 9:31 p.m. she contacted the man by phone and said she was at the gas station. He said “Ok, cool, I’m coming.” A few minutes later he came, got into her car, and directed her to another address. She parked where he directed her. He then gave her a plastic wrapper of crack cocaine that he had in his hand, and in exchange she gave him the $100.
[27] Almost instantaneously, Officer Castell’s cover team opened the passenger side door of her vehicle and arrested the man. They seized from him a cell phone and $260 of bills identifiable as the police buy money that Officer Castell had given to him. That same evening Officer Castell compared the phone number of the seized phone with the one she had been calling, and verified that the phone seized from the Defendant was indeed the number she had been calling to arrange the drug purchases.
IV. The defense of entrapment
[28] The Supreme Court of Canada set out the principles underlying the defense of entrapment in R v Mack, 1988 24 (SCC), [1988] 2 SCR 903, at para 108, as follows:
…the police are entitled to provide opportunities for the commission of offences where they have reasonable suspicion to believe that the individuals in question are already engaged in criminal conduct. The absence of a reasonable suspicion may establish a defense of entrapment for two reasons: firstly, it may indicate the police are engaged in random virtue-testing or, worse, are carrying on in that way for dubious motives unrelated to the investigation and repression of crimes and are as such ‘mala fides’.
[29] It is therefore well established that, “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”: Chris De Sa, “Entrapment: Clearly Misunderstood in the Dial-a-Dope Context”, (2005) 62 Criminal Law Quarterly 200. The “reasonable suspicion” standard has become the primary test for “balanc[ing] society’s interest in the detection of crime and punishment of criminals with society’s interest in maintaining the freedom of its individual members”: R v Nosworthy, 2010 ONSC 743. Its focus, therefore, is to identify and curb the indiscriminate exercise of police power: R v Chehil, 2013 SCC 49, [2013] 3 SCR 220.
[30] Since each case turns on its particular facts, the specific factors that give rise to a reasonable suspicion have not been precisely defined. It is clear, however, that “the threshold established will necessarily be low. It is something less than a belief based on reasonable and probable grounds, but more than a mere suspicion”: R v Arriagada, [2008] OJ No 5791, at para 18.
[31] In analyzing the question of reasonable suspicion, I must keep in mind that this standard “engages the reasonable possibility, rather than probability, of crime”: Chehil, at para 27. Accordingly, I must “be cautious not to conflate it with the more demanding reasonable and probable grounds standard”: Ibid.
[32] In R v Barnes, 1991 84 (SCC), [1991] 1 SCR 449, at para 23, the Supreme Court indicated that, “[a]n exception to [the reasonable suspicion] rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring.” Relying on the British Columbia Court of Appeal’s judgment in R v Swan, 2009 BCCA 142, at para 43, defense counsel submits that, “dial-a-dope investigations present different problems in terms of detection and enforcement than the buy and bust investigations described in Barnes.” He argues that where the opening salvo of the investigation is a cold call on a cell phone, and so there is no defined geographical location that has been targeted by the police, the investigation cannot proceed to the stage where the opportunity to commit a crime is presented to the target unless something is first said on the phone that arouses reasonable suspicion.
[33] The approach taken by the defense here is similar to that articulated in R v Townsend, [1997] OJ No 6516, at para 40, where Sharpe J. (as he then was) reasoned that, “…it is appropriate to scrutinize the activity log of the police at each stage of their operations to determine the point at which the police did offer the accused an opportunity to commit a crime and to inquire whether or not at that point the police had a reasonable suspicion as defined by Mack”. Accordingly, defense counsel asks that the court look very carefully at the precise words of the initial conversation between Officer Castell and the Defendant in order to determine whether reasonable suspicion had arisen before the opportunity for drug trafficking was presented by the officer.
[34] According to Officer Castell, the Defendant’s response to her initial question, “Hey, you around?”, which she said translates as ‘are you open for business?’, combined with the fact that she was acting on an informant’s tip that the phone number was that of a drug dealer, created reasonable suspicion. The Defendant’s response was to try to determine who the caller was and where she got his number, which the officer said would not be the natural response of a person who was not prepared to deal in drugs.
[35] According to defense counsel, the Defendant’s asking who was calling and where she got his contact information was the natural response of a person who has received a telephone call from an unknown person, and was not sufficient to raise a reasonable suspicion of criminality. He submits that in following this introductory exchange with the question, “Can I get a 60?”, the officer presented the Defendant with the opportunity to traffic in crack cocaine before anything had been articulated that induced reasonable suspicion. Defense counsel says that in this respect the current case is distinguishable from cases such as R v Silverthorn, 2012 ONSC 6784, where the undercover officer’s initial greeting prompted the accused to ask whether the caller is looking for drugs, rather than the other way around.
[36] Counsel for the Crown contends that the question “Can I get a 60?” did not present an opportunity, but rather was part and parcel of the investigation being conducted by the police. He points to the judgments in R. v. Imoro, 2010 ONCA 122, aff’d 2010 SCC 50, [2010] 3 SCR 62, R v Ralph, 2014 ONCA 3, and R v Meech, 2011 ONSC 1815, aff’d 2013 ONCA 338, where, respectively, the phrases, “Can you hook me up?”, “I need product”, and “I’m looking for a key” were taken to be investigatory steps and not the presentation of an opportunity to traffic in drugs.
[37] The Crown submits that likewise, Officer Castell’s question suggesting she was looking for crack cocaine was a step on the way to establishing reasonable suspicion, and was not the presentation of an opportunity that required reasonable suspicion to be already established. Crown counsel states that asking to “hook me up”, or saying that you “need product”, or inquiring about “looking for a key”, or seeking to “get a 60” all amount to the same thing. If one is a legitimate investigatory step or phrase, all of them are.
[38] I agree with the Crown that the court must articulate the legal test in a way which does not require the police to follow a predictable and formulaic conversation when they make an undercover phone call pursuant to a tip. As the Alberta Court of Appeal has put it, “…it is important that the test laid out in Mack not be applied in a mechanistic fashion”: R v Benedetti, 1997 ABCA 169, [1997] 7 WWR 330, at para 19. That kind of approach will inevitably undermine the effectiveness of the investigation.
[39] As my colleague, B. O’Marra J. pointed out in R v Charles, 2015 ONSC 7642, at para 16, “[i]n light of those drastic consequences [of a stay of proceedings flowing from a finding of entrapment], the court should consider all of the surrounding circumstances to determine whether the police conduct exceeds what is tolerable.” Generally speaking, “steps taken to investigate the reliability of a tip, falling short of providing an opportunity to commit an offence, will not give rise to the defense”: R v Olazo, 2012 BCCA 59, at para19. Accordingly, the British Columbia Court of Appeal has determined that, “[t]he opportunity only arose when the parties got down to the actual deal,” Ibid, at para 22, and not when there was just a question posed by the undercover officer and an affirmative response by the accused.
[40] This is especially the case where, as here, the police are acting on an informant’s tip. This was not a “random virtue test”, as described in Mack. As in R v Robson, 2014 ONSC 92, at para 17, “[w]hile it may be described as a virtue test, it was not at all random. It was very specifically targeted at the [Defendant].”
[41] Counsel for the defense complains that the sole witness for the Crown, Officer Castell, was uninformed about the reliability of the confidential informant whose information was passed on to her by D.C. Burrell. She did not know who the informant was, whether he was a longtime informant or a recent acquaintance of D.C. Burrell, whether he might have had ulterior motives in providing the information, etc.
[42] In the context of this evidentiary vacuum, defense counsel relies heavily on the judgment in R v Williams, 2014 ONSC 2370. A para 18 of Williams, Trotter J. found that, “[t]he lack of information concerning the tip prevents me from properly scrutinizing whether the suspicion the police had…was reasonable or not.” To this, defense counsel adds that, “[w]hile the burden is on [the defense] to establish entrapment, there is an evidentiary burden on the Crown”: R v Izzard, [2012] OJ No 2516, para 16.
[43] 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] OJ No 5758, at para 50, aff’d on other grounds, 2013 ONCA 338. Past experience, however, is not a mandatory requirement for acting on a tip; otherwise, there would be no new informants. Each case must be evaluated on its own terms, and not made to comply with a specific rule-based investigatory standard. As was pointed out in Mack, at para 17, “…the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law.”
[44] As Crown counsel pointed out in argument, the police can – indeed, should – act on an anonymous 911 tip if it is called in, and need not establish any history of dealings with the informant. Again, the point in this area of law is not to give the police mandatory steps to follow, but rather to focus on, and weed out, “law enforcement techniques that involve conduct that the citizenry cannot tolerate”: Mack, at para 18. Such techniques may be summarized as involving random investigations by police or investigations by police pursuant to improper motives: R v Imoro, 2010, ONCA 122, aff’d 2010 SCC 50, [2010] 3 SCR 62.
[45] There is nothing here to suggest anything untoward in the police approach to this case. Officer Castell was a credible witness who presented straightforward testimony. There is no reason to believe that she was engaged in anything but a bona fide undercover investigation. While we do not know much about the source of D.C. Burrell’s information, there is no evidence that the targeting of the Defendant for a so-called ‘dial-a-dope’ call was based on either “random virtue-testing” or “dubious motive”, to use the Supreme Court’s phrases in Mack.
[46] The confidential informant relayed the information that the phone number was that of a drug dealer. When Officer Castell called the number, it was not a stab in the dark; it was a targeted investigation.
[47] Officer Castell greeted the Defendant in a way which forwarded the investigation into whether he was a drug dealer. She then set up a meeting with the Defendant for the purpose of potentially engaging in a drug deal. She met with the Defendant. No coincidence, he in fact turned out to be a drug dealer. Officer Castell gave him the police ‘buy money’, he gave her the illegal drugs, and the other officers on the team arrested the Defendant and collected the evidence of his drug trafficking.
V. Conclusion
[48] This kind of police conduct does not fall into the category of law enforcement that the public cannot tolerate. Indeed, it is the kind of fair and effective law enforcement that the public hopes for and expects.
[49] Accordingly, the application for a stay of proceedings is dismissed.
Morgan J.
Date: February 8, 2016
CITATION: R v Reid, 2016 ONSC 954
COURT FILE NO.: CR-13-90000014-0000
DATE: 20160208
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOEL REID
Defendant
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: February 8, 2016