COURT FILE NO.: CR-18-90000343-0000
DATE: 20201006
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KENEIL HENRY
I. Glasner, for the Crown
M. Bornfreund, for Mr. Henry
HEARD: 22 September 2020
s.a.Q. akhtar j.
Introduction
[1] Keneil Henry was convicted by a jury of the offences of trafficking in cocaine, and possession of proceeds of crime. At the conclusion of his trial, he brought an application to stay the verdict on the basis that he was entrapped by the police into committing the offence.
[2] Although his conviction occurred in late 2019, Mr. Henry’s application, and any potential sentencing that might occur, was adjourned for several months pending the Supreme Court of Canada’s decision in R. v. Ahmad, 2020 SCC 11, 445 D.L.R. (4th) 1.
[3] On 22 September 2020, the parties argued the issue of entrapment. Shortly afterwards, I indicated that the application was dismissed with reasons to follow. These are those reasons.
Factual Background
[4] At his trial, the Crown proved beyond a reasonable doubt that Keneil Henry sold cocaine to an undercover officer and received $120 as part of the drug deal.
[5] Police had received information that a person by the name of “Jeff” was dealing drugs and were given a number through which he could be contacted. On 12 May 2017, Detective Constable Judy Kim called the number to set up a drug buy. Mr. Henry answered and said “hello”. Detective Constable Kim said “Jeff, you around?” and Mr. Henry responded by asking Detective Constable Kim who she was. Mr. Henry and the officer discussed how she had obtained his details before agreeing the sale and purchase of a “half b” of cocaine. Detective Constable Kim arranged to meet Mr. Henry at a specified location and was told to call when she got there.
[6] Detective Constable Kim and a Drug Squad team assigned to the case went to the designated meeting point. When they arrived, Detective Constable Kim called the number again and was told to drive to another location and she did so. When Detective Constable Kim called again, she gave Mr. Henry a description of her car and he told her that he was looking at it.
[7] Shortly thereafter, Mr. Henry and a woman approached Detective Constable Kim’s car. Mr. Henry opened the police car door, leaned in and gave Detective Constable Kim a ballshaped object wrapped in Kleenex. In return, the officer gave him the $120 given to her by Detective Tracey. Mr. Henry told her that now that they had met, they “were good for next time”.
[8] Detective Constable Kim signalled to her colleagues that a “done deal” had taken place. Police moved in to arrest Mr. Henry and saw him drop a quantity of money to the ground. That money was later identified as the “buy money” given by Detective Constable Kim as the purchase price of the drugs.
[9] The substance given to Detective Constable Kim was later sent for analysis and found to be .83 grams of cocaine.
The Supreme Court of Canada Decision in R. v. Ahmad and R. v. Williams
[10] Some months after Mr. Henry’s conviction, the Supreme Court of Canada released its decision in Ahmad, which dealt with entrapment in the context of “dial-a-dope” drug purchases. The facts in Ahmad and its companion appeal (R. v. Williams) bear a remarkable similarity to Mr. Henry’s case.
[11] In each appeal, police received information of phone numbers used to obtain illicit drugs. Officers called the numbers, engaged in a brief conversation with those who answered, agreed to buy drugs, and set up meetings to obtain their purchases. When the drug dealers arrived, they were arrested and charged with drug related offences. Both Ahmad and Williams appealed separately on the basis that they had been entrapped and their appeals were heard together.
[12] Ahmad’s appeal was dismissed but Williams succeeded.
[13] A majority of the Court found that in order to conduct drug purchase operations, the police must form reasonable suspicion that the person answering is engaged in criminal activity prior to making an offer to buy the drugs.
[14] The standard of reasonable suspicion, defined in cases such as R. v. Chehil, 2013 SCC 49, [2013] 3 SCR 220, was approved and summarised in Ahmad, at para. 46, as requiring a “constellation of objectively discernible facts” giving the officer “reasonable cause to suspect” that a certain kind of crime was being committed “by a particular person or in a particular place”.
[15] In a “dial-a-dope” context, the Court made clear that a bare tip without corroboration would not satisfy the reasonable suspicion test. However, reasonable suspicion could arise during the course of a dial-a-dope operation, based on the engagement with a particular target, so long as it was formed before the police presented the opportunity to commit the crime. If the police had insufficient reasonable suspicion prior to the call, the wording of the exchange between the accused and the officer posing as a buyer would have to be evaluated.
[16] In Ahmad’s case the police asked him whether he went by the name described in the tip and he did not deny this. When the officer asked “You can help me out?”, Ahmad responded positively and enquired “what do you need?”. The Court found that this exchange connected the tip to the man who answered the phone. Moreover, Ahmad’s response (“what do you need?”) demonstrated an understanding of drug sub culture and slang used within that culture. This constellation of events gave rise to a reasonable suspicion that Ahmad was involved in selling drugs before the formal request for drugs: Ahmad, at para. 76.
[17] In Williams’ case, however, the responses were different: the police did not wait to see how Williams would respond to an investigative question that would confirm William’s involvement in the drug trade. Instead, after introducing himself, the officer told Williams that “Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80”. In other words, the offer to buy was made before Williams provided information giving rise to reasonable suspicion. As a result, he was entrapped: Ahmad, at para. 80.
[18] In a post-Ahmad case, R. v. Li, 2020 SCC 12, 446 D.L.R. (4th) 355, the Court dealt with a case where the police had the requisite reasonable suspicion on the basis of the investigation they undertook prior to contacting the suspected drug dealer. Even though the police received a tip, they took steps to confirm some of the information from the tip such as the car used and licence plate to the person with an extensive and recent history of suspected drug dealing.
Was Mr. Henry Entrapped?
[19] When Detective Constable Kim called Mr. Henry she was acting on information that had not been significantly substantiated by the police. Police checks on the number provided by the source were inconclusive. Nor was the investigative team aware of the sources’ history with the police. They did not know if the source had been used in the past, whether they had a criminal record, or their motivation for providing the information.
[20] The Crown readily admits that there was an insufficient basis for the police to have formed reasonable suspicion prior to Detective Constable Kim calling Mr. Henry.
[21] In accordance with Ahmad, therefore, the contents of the call require scrutiny. As testified to by Detective Constable Kim, the exchange was as follows:
Q. When you called at 5:26, did anyone answer?
A. Yes.
Q. All right. And what did this person sound like?
A. It was a male voice.
Q. All right. And why do you say it’s a male voice?
A. The voice was deeper than a female’s voice and what I would consider to be a female’s voice.
Q. Okay. And what did this person say?
A. The male voice said, “Hello.”
Q. All right. And how did you respond?
A. I responded by asking, “Jeff, are you around?”
Q. All right. And what did you mean when you asked: “You around?”
A. If he was available?
Q. Available for what?
A. To possibly sell me some drugs.
Q. And how did Jeff respond?
A. Jeff responded by saying “Yeah, who is this?”
Q. And did you identify yourself?
A. I did.
Q. How.
A. I used my undercover name.
Q. What — what do you mean by an undercover name?
A. It’s not my real name.
Q. And what did Jeff say?
A. Jeff proceeded to ask by using my undercover name: “Who?”
Q. All right. And what did you say in response?
A. I responded by saying, “I got your link through Jamie, who knows my girl Stacey.”
Q. All right.
THE COURT: Sorry, you said she — just repeat that?
THE WITNESS: A. Absolutely. “I got your link through Jamie, who knows my girl Stacey.”
MR. GLASNER: Q. And then did you say anything else after that?
A. I did.
Q. And what was that?
A. Jeff responded by saying: “Jamie who?”
Q. Okay.
A. And I responded by saying, “You know, Jamie, 500 Dawes”. Jeff then responded saying: “Okay, okay, what you need?”
Q. And what did you say?
A. And I responded by saying, “Just looking for a half b. Can you do it?”
Q. And what do you mean by a “half b”?
A. A half b is a half ball, which is slang for 1.75 grams.
Q. And what type of drug is ¬— is — are all drugs referred to by — by that slang?
A. No.
Q. And which drugs are?
A. Cocaine and crack cocaine, usually.
[22] Mr. Henry told Detective Constable Kim that he was “good”, quoted a price for the drug and arranged to meet the officer.
[23] Both parties agree that in terms of information received and investigated prior to the call with Mr. Henry, there were insufficient grounds for the police to claim reasonable suspicion.
[24] The question, therefore, is whether reasonable suspicion emerged during the course of the call. The answer requires a review of the words spoken during Detective Constable Kim’s conversation with Mr. Henry. The deciding factor is whether Detective Constable Kim made a specific request to purchase drugs (and provided the opportunity to commit the crime) before she formed a reasonable suspicion that Mr. Henry was involved in the drug trade: Ahmad, at para. 59.
[25] In this respect, the instant case is almost identical to Ahmad where the call unfolded as follows:
Male: Hello
Officer: Hey, It’s Mike, Matt said I can give you a call, this is Romeo?
Male: He did, did he?
Officer: Yeah, said you can help me out?
Male: What do you need?
Officer: 2 soft
Male: Hold on, I’ll get back to you.
Officer: Alright.
[26] In Ahmad, the Court held that as the opportunity to commit the offence arose when the officer asked for “2 soft” (drug slang for two grammes of cocaine), reasonable suspicion would have to arise prior to those words. The Court found that the prior exchange created the required suspicion. The words “can you help me out” was not an offer to traffic drugs but the words “What do you need?” created reasonable suspicion along with the earlier exchange where Ahmad did not deny that he was “Romeo”.
[27] Similarly, in Mr. Henry’s case, when Detective Constable Kim asked if he was “Jeff”, Mr. Henry agreed that he was. At this point, the police had linked the information from the tip to the person with whom she was speaking. When Mr. Henry asked “what do you need?”, these were the same words used by Ahmad and recognised by the Supreme Court of Canada as crystallising the reasonable suspicion needed to make the police offer.
[28] The applicant submits that a critical difference between the two is that Mr. Henry asked who Jamie was, unlike Ahmad who did not express surprise that a stranger had contacted him on someone else’s recommendation.
[29] I do not agree. The entire context of the exchange must be looked at to determine reasonable suspicion. The Court’s comments in Ahmad, at paras. 75-76, regarding the lack of surprise, are made when discussing the fact that Ahmad did not expressly identify himself as “Romeo”, the name used by police. Here, Mr. Henry did agree that he was “Jeff”.
[30] Moreover, when Mr. Henry asked who “Jamie” was, the officer sought to clarify the identity of “Jamie” and gave an address. Mr. Henry accepted that explanation and proceeded to ask Detective Constable Kim “what do you need?”
[31] In my view, the requirements for reasonable suspicion set out in Ahmad are met in this case. I find that Mr. Henry was not entrapped when he arranged to sell drugs to Detective Constable Kim and the application is dismissed.
S.A.Q. Akhtar J.
Released: 6 October 2020
COURT FILE NO.: CR-18-90000343-0000
DATE: 20201006
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KENEIL HENRY
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.