SUPERIOR COURT OF JUSTICE - ONTARIO

CITATION: R. v. White, 2016 ONSC 961

COURT FILE NO.: CR-14-90000311-0000

DATE: 2016-02-08

Court File and Parties

RE: Regina v. Khary White

BEFORE: E.M. Morgan J.

COUNSEL: Elizabeth Bellerose, for the Crown Ayderus Alawi, for the Defendant

HEARD: January 14, 2016

ENTRAPMENT APPLICATION

[1] After a one-week trial before me as judge alone in June 2015, the Defendant was found guilty of two counts of trafficking cocaine, one count of obstruct justice, and one count of possession of the proceeds of crime. He now pleads entrapment, and applies for a stay of proceedings.

[2] The background facts are set out in my reasons for judgment issued July 9, 2015, reported as R v White, 2015 ONSC 4415. They are incorporated by reference into this judgment, and are only repeated here to the extent necessary for narrative.

[3] As the Supreme Court of Canada has described it, the overall object of the entrapment defense is to ensure that the police are not engaged in “law enforcement techniques that involve conduct that the citizenry cannot tolerate”: R v Mack, [1988] 2 SCR 903, at para 18. That said, “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”: Ibid., at para 108.

[4] Entrapment is a species of abuse of process, the remedy for which is a stay of proceedings which will effectively terminate the prosecution of a person who has already been adjudged as guilty: R v Jewitt, [1985] 2 SCR 128. As this court stated in R v Charles, 2015 ONSC 7642, at para 16, “[i]n light of those drastic consequences, the court should consider all of the surrounding circumstances to determine whether the police conduct exceeds what is tolerable.”

[5] The two ways in which entrapment may be established, originally set out by the Supreme Court in Mack, were reiterated succinctly by Laskin JA in R v Imoro 2010 ONCA 122, aff’d 2010 SCC 50, [2010] 3 SCR 62:

…[F]irst, when state authorities, acting without reasonable suspicion or for an improper purpose, provide a person with an opportunity to commit an offence; and second, even having reasonable suspicion or acting in the course of a good faith inquiry, the police go beyond providing an opportunity to commit a crime and actually induce the commission of an offence.

[6] The present case falls to be decided under the first branch. Given the terms of that branch of the entrapment defense, “…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”: R v Townsend, [1997] OJ No 6516, at para 40.

[7] The Supreme Court has made it clear that “…the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law”, Mack, at para 17. Accordingly, the “reasonable suspicion” threshold is a relatively low one. As the British Columbia Court of Appeal put it in R v Cahill, (1992), 13 CR (4th) 327, at para 32, “…as a matter of abstract theory, a reasonable suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.” Elaborating on that point, the Ontario Court of Appeal has explained that reasonable suspicion involves identifying “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”: R v Simpson (1993), 79 CCC (3d) 482.

[8] These facts can include a tip from a confidential informant that the person at a certain phone number is involved in criminal conduct, R v Bogie, [1996] OJ No 1768 (Gen Div), at para 16; Townshend, at para 50. They also include the specific language and phrases used by the suspect when he is called and engaged in conversation: R v Swan, 2009 BCCA 142, at para 6.

[9] As narrated in my July 9, 2015 judgment, the Defendant spoke with an undercover officer from the Toronto police drug squad, Terrance Lazarus, several times before arranging to meet him for a first drug deal. The Defendant’s phone number had been provided to the police on a tip from a confidential informant, who told them that this was the number used by a drug dealer.

[10] The first time that Officer Lazarus spoke with the Defendant was in the evening of March 31, 2013. No deal was arranged on that date, but after two more phone calls they agreed to meet on June 6, 2013. They settled on a time and place for the meeting, but before they could get together the Defendant advised that he could not attend and that a friend would meet Officer Lazarus in his place. The officer agreed to that arrangement, and met the Defendant’s friend at 9:19 p.m. at a Weston Road and Highway 401 car wash.

[11] At that meeting, Officer Lazarus handed the Defendant’s friend $240 in identifiable bills that he had been issued as ‘buy money’, and the friend handed Officer Lazarus 3.5 grams of crack cocaine. After the exchange, Officer Lazarus’ other team members arrested the Defendant’s friend and charged him with trafficking. That trial proceeded separately from the trial of the Defendant.

[12] Within a few moments of that brief meeting, the Defendant called Officer Lazarus to ask if his friend had showed up at the meeting. Officer Lazarus told him that the friend had not arrived, and feigned frustration at this turn of events. He told the Defendant that from now on he would only deal with him in person, to which the Defendant responded, “Alright, sir.”

[13] At 11:18 that same night, Officer Lazarus called the same phone number and a male voice that he recognized as the same one he had spoken to previously answered the phone. Officer Lazarus asked the man if he was going to “make this thing right”. The man said that he would meet Officer Lazarus at the McDonald’s at Highway 401 and Weston Road. Officer Lazarus was then issued another $240 in buy money and set out for the meeting. After several phone calls en route, he finally met with the Defendant in the parking lot of McDonald’s at 12:08 a.m. on what was by then June 7, 2013.

[14] The Defendant entered the front passenger side of Officer Lazarus’ car and sat down. Officer Lazarus asked him if he had the product, and the Defendant answered “Ya” and took three plastic baggies from his front pocket. After the Defendant placed the baggies on the centre console of Officer Lazarus’ car, the officer handed him the $240. At that point, other members of the police team that had accompanied Officer Lazarus came upon the scene, and after a scuffle in the car managed to arrest the Defendant. At some point during the scuffle, the Defendant had grabbed the drugs in the baggies and stuffed them in his mouth. A police officer wrestled with him and the drugs eventually fell to the ground.

[15] It is obvious that by the time Officer Lazarus actually met with the Defendant he had a reasonable suspicion that the Defendant was a drug trafficker. Indeed, he was virtually certain that the Defendant was a drug trafficker. That meeting was arranged not as a result of a cold call to a phone number supplied by a confidential informant, but rather as a result of the first drug deal when the Defendant’s friend was arrested.

[16] The subsequent phone call resulted in a new meeting being arranged by the Defendant in response to the officer’s asking whether he would “make this thing right”, which was a direct reference to the earlier drug deal which the Defendant thought had been aborted. No one but a person prepared to traffic in drugs would have arranged a meeting with Officer Lazarus under those circumstances.

[17] That, however, does not end the analysis. As McMahon J. pointed out in R v Marino-Montero, [2012] OJ No 1287, the second meeting and drug transaction might be tainted by the communications leading up to the first transaction. If the presentation of an opportunity to sell drugs the first time around was not predicated on an already established reasonable suspicion, then the second buy-sell transaction would have been fruit from a poisonous tree.

[18] In the present case, Officer Lazarus called the phone number he had received from the confidential informant for the first time at 6:28 p.m. on May 31, 2013. It rang to voicemail. He tried back a few moments later and a man, who turns out to be the Defendant, answered. The officer greeted the man in patois, saying, “Wa gwan fam?”, which Officer Lazarus explained means, ‘How are you?’. The man answered, “Good still”, which, again, Officer Lazarus explained is a common patois response to a greeting.

[19] Officer Lazarus then asked the man on the phone “What do you have?”, effectively letting him know that he is looking for drugs. He did not say what kind of drugs or how much he had in mind; rather, according to the officer’s testimony, he simply inquired in general terms.

[20] The man responded that he has “Hard ting”, which Officer Lazarus explained is a patois expression for crack cocaine. Only at that point did the officer specifically ask the man to sell him drugs, requesting a “ball”. Once again, Officer Lazarus explained in his testimony that this is street slang for 3.5 grams of crack cocaine. The man answered immediately, and said that it will cost $240 and that he’ll get back to him.

[21] Officer Lazarus called back 15 minutes later and, after one missed call that went to voicemail, connected with the same man on the phone and arranged a place to meet. That meeting was the one in which the Defendant’s friend took his place and was arrested following a drug transaction in Officer Lazarus’ car.

[22] As indicated, the investigation was set in action by a tip from an informant. This court has previously confirmed that, “The police are entitled to rely on an informant as the basis for taking the first step in a bona fide enquiry”: R v Bogie, [1996] OJ No 1768 (Gen Div), at para 16. The Supreme Court of Canada has reasoned that active law enforcement may be used where victims are reluctant to go to the police, Amato v The Queen, [1982] 2 SCR 418, at 457. Since drug trafficking does not have immediate “victims” in the usual sense, there is more of a need for active policing such as the initiation of a phone call by an undercover officer acting on an informant’s tip.

[23] It is important to observe that there is no suggestion of male fides on the part of Officer Lazarus and the police team working with him on this investigation. As in R v Gosselin, [2010] BCJ No 1511, at para 12, “the police in this case were conducting operations with the genuine goal of pursuing serious crime, namely, trafficking, without ulterior motives.”

[24] It is, of course, important to “properly distinguish between legitimately investigating a tip and giving an opportunity to commit a crime”: Imoro, at para 15. I have no trouble making that distinction here.

[25] This investigation was remarkably similar to that described in Imoro, where the undercover officer asked the target of the investigation, ‘Can you hook me up?’ In the Court of Appeal’s view, “[t]he question was simply a step in the police investigation of the anonymous tip. It did not amount to giving…[the defendant] an opportunity to traffic drugs”: Imoro, at para 16. There is no principled difference between the exchange described in Imoro and that between Officer Lazarus and the Defendant.

[26] When Officer Lazarus asked him what he has, and the Defendant replied, “Hard ting”, it was the Defendant who initiated the opportunity to arrange a drug deal, not the officer. The scenario described by Officer Lazarus conforms to what the Court of Appeal described in R v Ralph, 2014 ONCA 3, at para 32, as a legitimate investigative step:

When the appellant responded as he did, this response together with the anonymous tip was…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.

[27] This case can be summed up in the same way that my colleague Trotter J. summed up the entrapment application in R v Silverthorn, 2012 ONSC 6784, at para 12: “Here, the police were properly following up on a tip that [the accused] was a drug dealer. That is what the police are supposed to do.”

[28] There is no evidence in this case of police conduct that the public at large cannot tolerate. The police, acting on a tip, pursued a legitimate investigation and had reasonable suspicion that the Defendant was prepared to traffic in drugs by the time the deal was arranged.

[29] The Defendant has failed to make out a case for entrapment on a balance of probabilities. The application for a stay of proceedings is therefore dismissed.

Morgan J.

Date: February 8, 2016