CITATION: R. v. Henry-Osbourne, 2017 ONSC 6714
COURT FILE NO.: CR-16-90000445-0000
DATE: 20171107
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Lynston Henry-Osbourne
Defendant
Victoria Rivers, for the Crown
James Miglin, for the Defendant
HEARD at Toronto: September 25 to 27, 2017
Low J.
[1] There has been a guilty plea and a finding of guilt on counts 1, 3, 7 and 8 of the indictment.
[2] The defendant seeks a stay of conviction. It is alleged that the defendant was entrapped into the criminal conduct that underlies the guilty findings.
[3] Mr. Henry-Osbourne was charged with trafficking heroin on May 9, 2015, with trafficking heroin on May 11, 2015, with trafficking heroin on July 11, 2015 and with possession of proceeds on July 11, 2015.
[4] There is an agreed statement of fact as follows:
On May 9, 2015, the TDS entered into a drug investigation. A now retired officer Tony Canepa negotiated the purchase of a gram of heroin with an individual referred to as “Prince” for $200. Tony Canepa attended the area as directed and met “Prince”, who was later identified as Mr. Henry-Osborne. Tony Canepa gave Mr. Henry Osbourne $200 in marked police buy money and in return received a quantity of heroin, later determined to weigh 1.08 grams.
On May 11, 2015 Tony Canepa called “Prince” again and entered into another drug related conversation. “Prince” agreed to sell a gram of heroin for $200 directing the officer to meet him in the area of Jane Street and Sheppard Avenue, Toronto. Tony Canepa attended the area as directed and met Mr. Henry- Osbourne. Tony Canepa gave Mr. Henry-Osborne $200 in marked police buy money and in return received a quantity of heroin, later determined to weigh 1.06 grams.
On July 11, 2015 Tony Canepa called “Prince” again and entered into another drug related conversation with “Prince”. “Prince” agreed to sell 6.5 grams of heroin for $1,000 directing the officer to meet him in the area of Jane Street and Sheppard Avenue, Toronto. Tony Canepa attended the area as directed and met Mr. Henry-Osbourne. Tony Canepa gave Mr. Henry-Osborne $1,000 in marked police buy money and in return received a quantity of heroin, later determined to weigh 6.5 grams. Mr. Henry-Osbourne was subsequently arrested. The $1,000 of police buy money and a telephone was found on him during a search incident to arrest. The police confirmed the phone in his possession was assigned to phone number 416-302-4105 that the police had used to contact “Prince” previously.
[5] The onus is on the defendant to establish entrapment.
[6] The defendant relies on decisions from this court in R. v. Marino-Montero, [2012] O.J. No. 1287 and R. v. Williams, 2014 ONSC 2370, [2014] O.J. No. 1840.
[7] In those cases, the court embarked on an inquiry as to whether the police had acquired a reasonable suspicion that the accused was trafficking in illicit substances before making an offer to purchase drugs from him. In both cases, the investigation was initiated by a tip from a confidential informer and in both cases, the court concluded that a reasonable suspicion that the defendant was engaged in trafficking had not ripened at the point when the officer made the offer to purchase drugs which subsequently resulted in an incident of trafficking.
[8] Entrapment was found on the basis that the conduct constituted random virtue testing.
[9] In R. v. Gould, 2016 ONSC 4069, [2016] O.J. No. 3470, also a dial-a-dope investigation initiated by an informer tip, I employed the same methodology, but arrived at a different conclusion on the evidence before me. This was also the case in R. v. Toy, [2013] O.J. No 281.
[10] R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903 is the governing jurisprudence. At para 76, the court stated:
It is essential to identify why we do not accept police strategy that amounts to entrapment. There could be any number of reasons underlying what is perhaps an intuitive reaction against such law enforcement techniques but the following are, in my view, predominant. One reason is that the state does not have unlimited power to intrude into our personal lives or to randomly test the virtue of individuals. Another is the concern that entrapment techniques may result in the commission of crimes by people who would not otherwise have become involved in criminal conduct ….
[11] The essential test, however, as to whether police conduct constitutes entrapment appears at para 115 of Mack :
There is, therefore, entrapment when (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides, as explained earlier or, (b) have 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. As I have already mentioned, the first form of entrapment is not likely to occur. The police of this country are generally resorting to the type of investigatory technique of providing opportunities only in relation to targeted people or locations clearly, and therefore reasonably, suspected of being involved in or associated with criminal activity, or again are already engaged in a bona fide investigation justifying the provision of such opportunities.
[12] There is no suggestion on the evidence that the officer went further than providing an opportunity to traffic. There is no evidence of inducement: there was no holding out of a benefit, no expression of a threat, no appeal to or exploitation of emotion and no conduct by the investigating officer that, in the context and circumstances, would be considered shocking or outrageous.
[13] In my view, the conduct of the investigation does not constitute random virtue testing either.
[14] The investigating officer, Tony Canepa, was briefed by his supervising officer, Detective Braun, that the police had received information that a person trafficking heroin was using the name “Prince”, was using a telephone number of 416-302-4105, was a male black about 5 foot 7, aged about 25 with short black hair and wearing glasses. A “drop” name of “Paul” was also provided to Officer Canepa. The officer was aware that checks on the telephone number had yielded no results.
[15] Officer Canepa was assigned to call the person using the name “Prince” and to make a purchase of heroin with police buy money. Officer Canepa proceeded to do so.
[16] In my view, the investigation was not an instant of random virtue testing because the interaction with the defendant was not random. It was focused on one individual possessing several articulated physical characteristics and three specific patterns of conduct: the use of the style “Prince”, the use of a specific telephone number, and dealing in heroin.
[17] Second, there is no evidence that the action undertaken by the police to investigate the tip was not bona fide. There is no evidence that Officer Canepa, in carrying out the undercover interaction with the person responding to the telephone call to the number supplied was not engaged bona fide in the investigation of the tip.
[18] As was pointed out in Mack at para. 109,
… in certain situations the police may not know the identity of specific individuals, but they do know certain other facts, such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring. In those cases it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion. This latter situation, however, is only justified if the police acted in the course of a bona fie investigation and are not engaged in random virtue testing.
[19] The decision in Mack long predated the ubiquity of mobile telephone use, and in particular, the use of mobile telephones in the illicit drug trade. Investigations of a targeted suspect in a dial- a-dope operation was accordingly not within the contemplation of the court.
[20] I am in agreement with the line of analysis taken by my brother T. Ducharme J. in R. v. Henneh, 2017 ONSC 4835 in concluding that entrapment is not made out on the facts before me.
[21] Here, there was a targeted individual which, in my view, is more rather than less specific than a geographic area which is known to be frequented by drug traffickers for trading purposes. And there was a bona fide investigation of a lead.
[22] The officer investigated by calling the phone number. He probed with coded drug related language to ascertain whether or not the interlocutor was a drug dealer. The language was that which a person in the business of trafficking illicit drugs and responding to the name “Prince” would understand and engage with. The probe was met with a counter-probe as the defendant sought assurance that the caller was not police, but rather a person referred by a known connection in the drug milieu.
[23] When the officer responded to the defendant’s question, “Yah. What are you looking for?” with “a G R of H”, it is a continuation of his probe to ascertain whether the defendant and he are communicating in the same vernacular and an attempt to get confirmation of the tip that the defendant deals in heroin. It seems to me that even if the officer had expressed his desire for “a gr of H” much earlier in the exchange, it would nevertheless retain its character as a probe to see whether the defendant was conversant with the drug vernacular or a stranger to it, and, if he did understand the coded language, to ascertain whether or not he was willing to engage.
[24] In the context of dial-a-dope operations, many undercover investigations will start with a tip only, and for that reason, it will not be possible to say that the police start out with a “reasonable suspicion”. The police nevertheless have a duty to investigate, and in the dial-a-dope context, investigation requires a call to the target number to determine whether the tip can be confirmed.
[25] I agree with the submission on defendant’s behalf that the entirety of the call is the extension of an opportunity to commit an offence-- at least from the time that the undercover officer commences to use coded language that is intended to be understood by drug trafficking individuals to refer to a potential drug transaction. In my view, once the undercover officer sends out the signal by using coded language like the phrase “Can I come see you?” which Officer Canepa used, the target is intended to understand that the caller is a prospective customer. Whether there is an explicit mention of a particular quantity of a particular drug seems to me not the crucial test. The offering of an opportunity to offend lies in the telegraphing of the message that the caller wants to engage in a drug related conversation and potentially a drug transaction.
[26] That message can be sent in a number of preliminary utterances such as “Can I come see you?” or “Can I come check you?”. I accept Officer Canepa’s evidence that these phrases have a meaning in the illicit drug trade that is not apparent on the literal meaning of the words: they pose the question as to whether the recipient of the call is a drug dealer. Once those words or other coded phrases are uttered by the undercover officer indicating that the call is a drug related overture, a person understanding the vernacular knows that an opportunity has been presented which may either be pursued or dropped.
[27] With great respect, it appears to me that Mack indicates that an opportunity to offend may properly be extended to the target of a bona fide investigation if it is in the course of and for the purposes of the investigation whether the information in the possession of the police at the time of the offer rises to the level of a reasonable suspicion or is only at a level of a “mere” suspicion.
[28] To conclude otherwise would be to hamper or to prohibit coded language undercover calls on tips or leads unless other information in police possession had already ripened to a state of reasonable suspicion that the target was trafficking in drugs. In my view, the decision in Mack does not express that intent.
[29] For the foregoing reason, I find that no entrapment has been shown.
[30] The application for a stay is accordingly dismissed.
_________________________ Low J.
Released: November 7, 2017
CITATION: R. v. Henry-Osbourne, 2017 ONSC 6714
COURT FILE NO.: CR-16-90000445-0000
DATE: 20171107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Lynston Henry-Osbourne
Defendant
REASONS FOR RULING
Low J.
Released: November 7, 2017