Her Majesty the Queen – and – Bailey Merritt
COURT FILE NO.: CR7-2016 DATE: 2017/06/23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Respondent – and – Bailey Merritt Applicant
Counsel: Paul Bailey, for the Crown Aaron Prevost, for the Applicant
HEARD: June 21, 2017
REASONS FOR DECISION
George J. (orally):
Introduction
[1] After a trial, I found Bailey Merritt guilty of trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act, and of possessing proceeds derived from the commission of an indictable offence contrary to s. 354(1) of the Criminal Code of Canada.
[2] The facts are straightforward, and for the most part not in dispute. Mr. Merritt sold an undercover police officer (UC Armstrong) 3.5 grams of cocaine, for $350. This transaction occurred in a McDonald’s parking lot on February 13, 2013.
Stay Application
[3] Mr. Merritt seeks a stay of proceedings, claiming he was entrapped into committing these offences. He bears the onus of establishing entrapment on a balance of probabilities.
Evidence
[4] The trial evidence is to be applied on this application. I heard from two witnesses, UC Armstrong, and Inspector Shawn Johnson.
UC Armstrong
[5] UC Armstrong is a member of the OPP West Region Crime Enforcement Bureau. His work primarily involves drug investigations. He was involved in what was called the Pine Creek Project; an investigation into street level drug dealers in Huron, Lambton and Wellington counties. In October 2012, he was assigned the primary UC officer, with a direction to focus on Huron County and to target certain individuals, including Mr. Merritt.
[6] On October 11, 2012 he attended a briefing, along with Officers Johnston, Clelland, Matheson, and Rau. He received information about Mr. Merritt trafficking in cocaine and cannabis in and around the Goderich area, and learned that he was associated with the local Boston Pizza restaurant. As a result of this information, he attended Boston Pizza. Once there he went into the bar area, and after speaking to some employees, learned that while Mr. Merritt had once worked there, this was no longer the case.
[7] He was given Mr. Merritt’s cell phone number. He attempted to call it, with no answer. He sent a text message which did elicit a response. He testified to the following text message exchange with a person he believed was Mr. Merritt:
UC Armstrong – “Hey Bailey…was just in at BP…Temera (sp) and Rodina (sp) told me you don’t work here anymore…looking to hook up…hit me back”
Mr. Merritt – “Who is this?”
UC Armstrong – “This is Jeff…we met at Summerfest in the beer tent”
Mr. Merritt – “Fuck LOL gonna have to be more specific”
UC Armstrong – “Sorry dude we were both a little fucked up that night…I was the good looking bald guy…you said to stop in at BP for a drink”
Mr. Merritt – “Fuck I’m lost brother LOL”
UC Armstrong – “Ah, you will remember me when you see me…you up for a drink?”
UC Armstrong – “Hey dude…you there…you leaving me hanging”
UC Armstrong – “Not sure if getting my texts…having a couple of drinks”
[8] None of the information UC Armstrong provided to Mr. Merritt was true. It was made up in an attempt to have Mr. Merritt meet him for a drink. Mr. Merritt did not respond to UC Armstrong’s last three text messages, and they never did meet for a drink. Nothing of much value was gained in this exchange.
[9] So far as I know, no further investigation of Mr. Merritt was conducted until approximately four months later.
[10] On February 13, 2013, during a conversation with his handler Detective Sergeant Mark Johnston, it was suggested he try once again to touch base with Mr. Merritt. He agreed, and on that same date, had this text exchange:
UC Armstrong – “Hey you good…in need”
Mr. Merritt – “who’s this?”
UC Armstrong – “Jeff…was told you could help me out”
Mr. Merritt – “Sorry Jeff who did you talk to?”
UC Armstrong – “Hate text, can I give you a buzz?”
Mr. Merritt – “no worries”
[11] UC Armstrong testified that, in the drug subculture, indicating you were in need, meant that you were looking to purchase drugs.
[12] He placed a call to Mr. Merritt, who answered. During this conversation, UC Armstrong advised he was working in the Goderich area and had been buying drugs from a man named Crusty. In response, Mr. Merritt said “oh, you’re looking for green”, clearly referring to marijuana. UC Armstrong said he was not, and that he “was told to call you as you could help me out”. Mr. Merritt indicated he was nervous as he didn’t know who he was. He went on to say he was fine to meet in person and asked, “what are you looking for?”, and “how much are you looking for?” UC Armstrong responded a “half B”, which is the common street name for 1.75 grams of cocaine.
[13] Mr. Merritt indicated “it was expensive” and that he charged "point for point”, which UC Armstrong understood to mean there would be no discount for quantity.
[14] Mr. Merritt explained how the quality of his stuff was “really really good” and “all or mostly chunk”. It was, according to him, the “best stuff ever”. UC Armstrong understood this to mean the cocaine he had to sell had been pressed together, indicating a better quality in that it hadn’t been cut with other substances.
[15] UC Armstrong told him he would be interested in purchasing a “full ball” (3.5 grams). They arranged to meet at McDonalds. Mr. Merritt told him he would be driving a red older model Buick. UC Armstrong arrived at the restaurant at 620pm along with Detective Constable Tony Smith. He drove a pick-up truck. Once there he noticed a light coloured SUV crossover type vehicle. While it wasn’t a red older model Buick, he suspected it was Mr. Merritt. Mr. Merritt pulled his car over to where UC Armstrong was, rolled down his window and asked if he was Jeff.
[16] He attended inside Mr. Merritt’s vehicle, leaving Officer Smith in his. This was their first and only face to face interaction. Mr. Merritt reiterated how nervous he was. UC Armstrong showed him cartons of cigarettes he had brought, proposing a trade (cigarettes for drugs). He told him they were stolen, which they weren’t, for the purpose of easing his mind by revealing his own criminality. Mr. Merritt declined the offer.
[17] After an attempted price negotiation, Mr. Merritt told him to take it or leave it. The transaction ensued. UC Armstrong received cocaine, and passed to Mr. Merritt $350.00. Their interaction ended with Mr. Merritt asking UC Armstrong to text later to let him know how he liked the cocaine.
Inspector Johnson
[18] Inspector Shawn Johnson testified. He spoke of an unsolicited conversation he had with a “local citizen” at the arena, about Mr. Merritt. He described this person as being of sound mind, and sober. This individual detailed their personal financial troubles and how he/she had spiraled into a life of drugs and alcohol. They told Inspector Johnson they had purchased drugs from Mr. Merritt.
[19] Inspector Johnson did not know whether this person had a criminal record for fraud or perjury. He characterized them as honest and trustworthy, but not someone who had previously been a criminal informant. Inspector Johnson was off-duty and not carrying a duty book.
[20] He later wrote an email to Officer Rau, detailing this information. It was received into evidence, with some redactions to protect the person’s identity. This is what Inspector Johnson wrote:
Charlie (Rau), please be advised that on the evening of…, August…, 2012 I had a meeting with a citizen who I know well within the community. At this time…provided me unsolicited information about…having been trying drugs during the past month. …advised me that…, and others…hangs around have been getting their drugs from Bailey Merritt of Goderich. …indicated that aside from marihuana he also provided…cocaine.
We spoke further about…own financial situation, and this individual who I knew had been working…and working at saving money for…, advised that…has spent all…money.
This individual spoke about Bailey Merritt has been hanging around this individual and…group of friends and they all have been doing drugs during the past…months, as well as drinking together in social settings including…in Goderich, on…, 2012.
As…, I personally observed this individual with Bailey and other…standing in a group, all obviously under the influence of either alcohol or drugs.
[21] Inspector Johnson did not participate in the October 12, 2012 briefing. Officer Rau, the recipient of this email, did.
Parties Positions on Entrapment
Mr. Merritt
[22] Mr. Merritt’s position is he was entrapped, and that the proper remedy is a stay of these proceedings. That is, even though I have found him guilty, I should not register a conviction or sentence him. The prosecution should end.
[23] He concedes UC Armstrong had a subjectively held suspicion he was a drug dealer, but that, by any objective standard, his suspicion was not reasonable.
[24] This is the critical question; was there a reasonable suspicion that Mr. Merritt trafficked in cocaine? Mr. Merritt says no. He contends this was random moral testing which induced him into committing the offence.
Crown
[25] The Crown takes a very different view. It argues UC Armstrong had a reasonable suspicion which, if he did, entitled him to offer an opportunity to commit these offences. Its alternative position is, even if I don’t find he had a reasonable suspicion, the February 13th phone call was not an offer to commit an offence, but rather an investigative step. It asks that I carefully consider the content of all February 13th communications, and reach the same conclusion.
[26] The Crown focused on the chain of events that led to the transaction. It distinguishes between tips, and source information, suggesting that which was passed along to Inspector Johnson was the latter. It was direct information from an individual, otherwise known to the officer, specifically about “getting” drugs, including cocaine, from Mr. Merritt. This informant spoke to how they had gotten caught up in a lifestyle of drugs and alcohol, along with Mr. Merritt, which was, in part confirmed by Inspector Johnson’s personal observations in the community. As indicated in my recounting of the trial evidence, Inspector Johnson passed this information along to Officer Rau, who participated in the briefing with UC Armstrong.
[27] Should I disagree, the Crown argues that during the course of the February 13th communications, which it characterizes as an investigative step, a reasonable suspicion was then created. Its position is, it is Mr. Merritt who steers the conversation to cocaine by asking “what are you looking for” and “how much are you looking for”.
Law & Analysis
[28] It is useful to first understand what, at its essence, entrapment is. In a criminal law context, it is a police practice whereby an officer induces a person to commit an offence that that person would not have otherwise committed. In other words, but for the conduct, trickery, persuasion or fraud of the officer, the crime would not have been committed. The aim in prohibiting this type of practice is to ensure innocent people aren’t procured into being criminals.
[29] The doctrine of entrapment is a common-law concept. The jurisprudence surrounding it has developed over time, the seminal pronouncements from the Supreme Court coming in 1991 in R. v. Barnes, [1991] 1 S.C.R. 449, and in 1988 in R. v. Mack, [1988] 2 S.C.R. 903. From these we know there are two different forms of entrapment. First, what is often referred to as ‘random virtue testing’, is when an officer offers someone the opportunity to commit a crime without reasonable suspicion that the targeted person is associated with the criminal activity under investigation. As was pointed out in argument, if the police do have a reasonable suspicion, they are still limited to providing only the opportunity to commit the offence.
[30] The second form is when the police go beyond merely providing the opportunity, but induce the crime. This involves a consideration of many factors, including police persistence, the type of inducement (i.e. deceit or reward), presence of threats, and whether it is the clearest of cases warranting a stay. I am not concerned with this form of entrapment, so will focus on the first.
[31] Counsel filed several authorities, including Mack. In addition to the guiding, and binding, opinions from the Supreme Court, the most relevant and applicable decision is that of the Court of Appeal in Imoro; R. v. Imoro, 2010 ONCA 122, [2010] O.J. No. 586. The defence relies upon others, most notably R. v. Peters, [2002] O.J. No. 496, a Superior Court decision that was not appealed, and which resulted in a stay. The Crown argues Peters is no longer good law, essentially being overtaken by Imoro. The defence contends Peters can still be relied upon, stressing every case must simply turn on its facts.
[32] I make no comment on whether Peters is still good law. It is a decision from this court which is not binding. To the extent there is conflict between Peters and Imoro, Imoro is to be followed. Peters is illustrative and I have considered it. However, the guiding principles and relevant factors are well known, irrespective of Peters, and I will apply them accordingly.
[33] In Imoro, the police responded to an anonymous tip that someone was selling drugs on the 12th floor of an apartment building. There was no further information. The police then attended that building and went to the 12th floor. Once there Imoro approached the officer and said, “come with me”. The officer responded by saying “can you hook me up”, to which Imoro replied “yes”. There was a further exchange including a specific request for crack, and discussion about price, with Imoro ultimately selling to the officer $40 worth of powdered cocaine. That officer returned the following day and purchased more cocaine. This information led to a search warrant and seizure of drugs from the apartment. The trial judge excluded the evidence at trial, alternatively concluding she would have stayed the proceedings as Imoro had been entrapped.
[34] The Court of Appeal, in setting aside the acquittals, commented extensively on the entrapment issue. It specifically focused on the officer’s request to be hooked up and whether that provided Imoro with the opportunity to sell drugs. The court concluded it was merely a step in the investigation, flowing from the receipt of the anonymous tip.
[35] The Crown argues this is fatal to Mr. Merritt’s argument, drawing parallels between each stage of that police investigation with ours, and Imoro’s conduct with Mr. Merritt’s.
[36] Mr. Merritt criticizes the police approach in his case, arguing the initial information received by Inspector Johnson was unreliable, untested, and unconfirmed. And that, even if it were, by not doing anything between October 2012 and February 2013, it became stale dated, rendering it irrelevant and improperly acted on.
[37] I don’t agree. It is true that were the police looking to obtain a warrant, the information from Inspector Johnson would have clearly been deficient. I agree the relationship between Inspector Johnson and the citizen was not that of a typical police/informant. But what is abundantly clear is the information itself is far more reliable than that initially received in Imoro, which was an anonymous tip about drug trafficking. In fact, I believe it was about “someone” selling drugs, with no specific reference to Imoro. That is not the case here. We have fairly detailed information (as opposed to a bald assertion), specific to Mr. Merritt, and received from someone known to the officer. In fact, this officer had observed Mr. Merritt and this person in each other’s company, likely under the influence of drugs.
[38] Did the passage of time make the information incapable of being acted upon? The answer is no. There is, I suppose, a point at which information does become too stale, but that didn’t happen here. Remember the context, which is an ongoing investigation, targeting specific areas in this region, including Goderich. Mr. Merritt is introduced as a possible suspect at the point Inspector Johnson received information from the citizen. There is some outreach to him in October, and ultimately contact in February 2013. By no measure is this an inordinate amount of time. The information had not been rendered useless.
[39] In the event I am wrong, I am of the view the police were still entitled to touch base with Mr. Merritt, as UC Armstrong did on February 13th. In other words, to accept the defence argument in its entirety, up to this point, still leaves the initial text communication and subsequent phone call on the 13th, which I find were investigative steps the police could legitimately take. For example, if the text exchange on February 13th unfolded in the same way it did in October, that would have likely been the end of it, at least for that day. To push it beyond that, in the face of resistance or pleas of ignorance, would likely have been entrapment. The evidence, however, is this. In response to being told he could help UC Armstrong out, Mr. Merritt asked what are you looking for, and how much are you looking for. One needs to place this in its proper context which was, Mr. Merritt, when being told of Crusty, first introduces the prospect of marijuana, then himself steers toward another drug, and a corresponding inquiry about quantity.
[40] Stepping back from that for a moment, I find there is nothing at all improper about the initial text that day, which was “Hey you good…in need”. In fact, this is less clear and direct than the officer’s more stark comments in Imoro, which was definitively determined to be but an investigative step.
Conclusion
[41] UC Armstrong had a reasonable suspicion at the point he first engaged Mr. Merritt, which allowed him to create an opportunity. In the event I am wrong, UC Armstrong’s texts and call to Mr. Merritt on February 13th was not an offer to commit an offence, but a step taken in the course of his investigation. On these facts, nothing turns on the passage of four months between communications. Nor was there a need for the police to take all those steps that would have been necessary to, for example, obtain a warrant. It was information, beyond what you typically see in a tip, that directed the investigation towards Mr. Merritt. An investigation ensued, with certain steps taken to engage Mr. Merritt, culminating in him selling cocaine to the officer.
[42] Recall my opening remarks about entrapment generally, and how the prohibition against it is to shield innocent people from being induced into criminal behavior. Consider as well, at each stage, the responses Mr. Merritt provided to UC Armstrong’s inquiries. These responses are achieving the officer’s investigative goals. Mr. Merritt is clearly conversant in the language common in the drug subculture. He is prepared to engage a stranger, notwithstanding his nervousness. He is prepared to receive a call from a stranger, notwithstanding the fact he doesn’t remember ever meeting this person named “Jeff”. He eventually agrees to meet this stranger, at a public location, for the express purpose of selling drugs.
[43] There is simply no basis to conclude Mr. Merritt was an innocent person caught in a trap. People don’t naturally engage with strangers in the way Mr. Merritt did. UC Armstrong learned, through his investigation, that Mr. Merritt would. Most people don’t have the ability to speak in the language of the drug world. UC Armstrong learned that Mr. Merritt indeed could. That was the whole purpose in writing the texts, and placing the call.
[44] The police had a reasonable suspicion that Mr. Merritt was already engaged in criminal activity as a drug dealer; a result of the information received from Inspector Johnson, which was recounted to Officer Rau and subsequently to others involved in the investigation. That being the case, if in fact he did so, UC Armstrong was entitled to offer the opportunity for Mr. Merritt to commit this crime. Should I be wrong, the information received was tantamount to a tip – surely one with more teeth than the typical confidential tip from, say, Crimestoppers – that then allowed UC Armstrong to take the investigative steps he did, which led to his reasonably held suspicion.
[45] The entrapment defence fails. Mr. Merritt’s application is dismissed. We will proceed to sentencing.
“Justice J. C. George” Justice J.C. George