COURT FILE NO.: 26/18
DATE: 20201208
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen, Respondent
AND:
Daniel Fuller, Applicant
BEFORE: Justice M. A. Garson
COUNSEL: Andrew Nisker, for the Respondent
Jordan Gold, for the Applicant
HEARD: September 23, September 24, and November 13, 2020
RULING ON ENTRAPMENT HEARING
Introduction
[1] Daniel Fuller (“the applicant”) pled guilty before me to several drug trafficking offences. He pled to selling marijuana and cocaine to an undercover officer (“the u/c”) on several occasions in 2018.
[2] A search warrant executed at the applicant’s residence yielded a large amount of marijuana and a smaller amount of cocaine.
[3] The applicant concedes that police conduct was appropriate with respect to the purchases and seizures of marijuana from his residence.
[4] The applicant asserts, however, that he was entrapped with respect to the sale of cocaine to the u/c and, accordingly, seeks a stay of Counts 5 and 6, which relate to hand-to-hand cocaine transactions on May 18 and June 11, 2018. It is the applicant’s onus to establish entrapment, on the balance of probabilities.
[5] The applicant concedes that police did not induce the commission of these offences. The sole issue in dispute is whether the police had the necessary “reasonable suspicion” to believe that the applicant was trafficking cocaine at the time.
[6] These reasons explain why I am not satisfied, on the balance of probabilities, that police conduct constituted an abuse of process by entrapment or the police lacked the required “reasonable suspicion” to believe the applicant was selling cocaine before providing him with the opportunity to sell cocaine to an u/c.
Evidence
[7] The parties filed a series of documents including screenshotted text messages between the applicant and the u/c from April 2018, Appendix C to the ITO to search the applicant’s residence, a redacted and updated will say from Detective Constable Serf (“D/C Serf”), and an agreed statement of facts concerning information procured by police through surveillance and known to D/C Serf.
[8] Three witnesses testified: the applicant and two police officers. I now turn to summarize their evidence.
The Applicant
[9] The applicant, 34, is the father of two boys and resided outside of Mitchell, Ontario at the time of these incidents. He recalled receiving a phone call from Detective Constable Smith (“D/C Smith”), the u/c, in early March 2018, inquiring about hiring the applicant to provide him with some personal training.
[10] The applicant testified that he was selling marijuana out of his house and dropping it off to others in March 2018, but he denied selling any other drugs at that time.
[11] The applicant also admitted to using marijuana frequently in March 2018 and using cocaine occasionally – that is, every few months or for special occasions. When purchasing cocaine, the applicant explained that he typically purchased “half a ball,” i.e., 1/16th of an ounce, which would last him the night and, sometimes, longer.
[12] The applicant sold cocaine in his younger years but hasn’t done so since July 2010 when his then wife was pregnant. In 2018, he stated that he was not selling cocaine to friends, although they would occasionally do lines together.
[13] At the first personal training session with the u/c at the Fifth Round gym in Stratford (“the gym”), the applicant recalled the u/c saying “he partied,” which is often code meaning that he used drugs. The applicant could not recall explicitly discussing drugs at this first meeting.
[14] After the second personal training session, approximately one week later, the applicant sold marijuana to the u/c from his home after discussing it with him during the personal training session earlier that day. The applicant recalled telling the u/c that he sells and smokes lots of marijuana.
[15] According to the applicant, the u/c brought up cocaine a few times earlier that day, but the applicant responded that he’s not into hard drugs, left the topic alone, and resumed talking about marijuana.
[16] The applicant denied telling the u/c that he used to sell a lot of cocaine and marijuana before selling him the marijuana. The applicant specifically denied saying that he picked up cocaine for a friend recently or that he still sells cocaine in smaller amounts to friends.
[17] The applicant denied telling the u/c he could refer the u/c to someone for cocaine. He did, however, admit to selling cocaine to the u/c on several occasions, with the first occasion taking place a few sessions after the first marijuana sale.
[18] When asked why he sold cocaine to the u/c, the applicant responded that he started thinking about the money and “it all boils down to that.” He stated that the extra money “didn’t hurt” and described the cocaine as a free stepping stone to “extra cash and stuff” for him. The reference to extra “stuff” for the applicant meant that he would cut out some cocaine for himself from the product he was about to sell to the u/c and then replace it with filler to balance the weight.
[19] Although he felt harassed by the u/c on one occasion to sell him cocaine, whereby he described the u/c as “a pest,” the applicant did not otherwise feel intimidated by the u/c at any time before he sold him cocaine.
[20] When asked about the 12 grams of cocaine police found at his house after a search, the applicant explained that he had cut this out from the three ounces he picked up to sell to the u/c.
[21] In cross-examination, the applicant accepted that his recollection of the details of these events was not great with respect to dates, conversations, texts, or e-mails. He agreed that he likely deleted all relevant texts and emails he sent and received. He denied being addicted to cocaine or that cocaine was controlling his life in any way in 2018. He testified that most of his income at that time came from his fitness business and his sale of marijuana.
[22] He agreed that both he and the u/c used code language when discussing drugs. They used the phrase “t-shirts” when referring to marijuana and “white t-shirts” when referring to cocaine.
[23] He accepted that when he referred, in an April 5, 2018 text he sent to the u/c, to not getting hold of “a friend” to train, he was referring to not getting hold of his cocaine supplier to provide him with the cocaine he had earlier agreed to sell to the u/c.
[24] He recalled the u/c telling him about a Toronto dealer that sold cocaine to the u/c for about $2000/ounce. He agreed he would’ve asked the u/c about the price for cocaine and that he would’ve been familiar with approximate pricing for cocaine at that time based on his cocaine selling in 2010.
[25] He described sharing cocaine with friends at parties, indicating that each person who has some cocaine throws it into a pile, that everyone then snorts it, and that, if you have some and a friend doesn’t, then you “obviously share.”
[26] The applicant recalled having a conversation with the u/c about the quality of cocaine and likely using the words “shiny” and “fish-scaling” to describe the quality of the cocaine. He was familiar with these terms from when he used to sell cocaine. He was also familiar with how some people “stomp” on cocaine, meaning they cut some out for themselves before selling it to others.
[27] He recalled discussing the quantities of cocaine he used to sell with the u/c and referring to 9 ounces as “9 packs.” He recalled that he used to pick up a considerable amount of cocaine when he used to sell cocaine in the past, as it was cheaper to buy in bulk.
[28] He specifically denied telling the u/c that he still picks up cocaine for friends and, in fact, denied saying he did so as recently as the week before. It’s possible he told the u/c he said that he would put him on to his cocaine supplier but he couldn’t recall. He did not put the u/c in touch with any other cocaine supplier or dealer.
[29] The applicant described the u/c as always understanding if he was unable to deliver drugs. He agreed that they communicated through an app he developed. He accepted that he likely told the u/c that his supplier gets his drugs from the bikers.
[30] He could not recall any times when the u/c appeared upset or frustrated with him except once when he “pestered” him when the applicant wouldn’t return his calls or texts.
[31] He agreed that the u/c placed no pressure on him prior to the first time he sold him cocaine other than repeatedly asking him for it.
[32] The applicant acknowledged that, in March 2018, lots of people would come and go from his house for short visits because he was selling lots of marijuana. He agreed that the u/c had no knowledge of where his drugs came from or the name of his supplier.
Detective Constable Smith (“D/C Smith” or “the u/c”)
[33] D/C Smith is a 14-year officer with Durham Regional Police Service. He has roughly 5-and-a-half years of experience with drug enforcement and has conducted over 500 drug investigations, with approximately 100 to 200 of these investigations involving cocaine.
[34] He has taken on the role of u/c hundreds of times before this investigation. He has made approximately 50 to 75 drug purchases as a u/c prior to this investigation, 30 to 40 of which involved the purchase of cocaine, often from persons unknown to him at the time.
[35] He has relied on confidential informant (“CI”) tips extensively in the past, has testified as a drug expert at trials in the past, and is familiar with drug jargon.
[36] D/C Smith made notes of his dealings with the applicant either at the Stratford Police Service (“SPS”) station or within an hour of his return to his home detachment. His notes are a summary of events, unless he specifically recalled what was said verbatim, in which case he placed the words he recalled in quotes as he was certain that these were the words said by the applicant.
[37] At the time that he was initially debriefed by SPS, he formed the belief, based on earlier investigative steps taken by SPS, that the applicant was trafficking in cocaine.
[38] On March 6, 2018, he attended at the gym to make observations of the applicant who was also at the gym with his girlfriend. He observed the applicant talking with other males, including a 35-year old male, who the applicant spoke with in the parking lot. The u/c later learned that this 35-year-old male was familiar to SPS as a suspected local cocaine trafficker.
[39] After a few more attendances at the gym, the u/c phoned the applicant at the number posted on his Facebook page for personal training sessions and met with him at the gym, in the early afternoon of March 15, 2018, for his first personal training session. He paid him $150 at that time for three sessions.
[40] D/C Smith’s stated goals for his investigation were to build rapport with the applicant and, if the opportunity arose, examine and explore the drug sub-culture. During this initial training session, he referred to his own marijuana usage in passing as they trained and also spoke about “partying,” which he explained could mean cocaine usage in the drug sub-culture. The applicant told the u/c that he used cocaine in the past but not anymore.
[41] The second training session took place on March 20, 2018. The object of that session for the u/c was to build rapport and, if the opportunity presented, to buy drugs. The u/c told the applicant during this training session that he was not “sleeping very often and having to work” at night. He explained that the use of these words was intended to suggest to the applicant that the u/c’s job was not on the up-and-up and to open the door for the applicant to explore this topic some more.
[42] The third training session took place on March 22, 2018. The u/c brought buy money with him in the event he was able to purchase drugs that day. The u/c again spoke of working all night. The applicant began telling the u/c that he was selling a lot of marijuana and that many years earlier, when he was 19 or 20, had sold a lot of cocaine. The applicant told the u/c he used to get his cocaine from “triads,” meaning organized crime groups.
[43] The applicant advised the u/c that he had marijuana at his house and could get up to 16 or more pounds of marijuana from his grower, who had numerous strains available at $150/ounce.
[44] The u/c told the applicant that he currently gets his cocaine from a Toronto supplier for $2000-$2300/ounce. The applicant responded that he picked up half an ounce for a friend last week and that, although he didn’t always do that anymore, he still could. The u/c understood from these statements that the applicant was dealing cocaine at the time. The u/c recalled and was very confident that this was the nature of the conversation, though he could not remember the exact words used.
[45] The u/c and the applicant also discussed consistency and pricing for drugs. The applicant spoke of the presence of a “stamp” on his cocaine, which refers to it coming directly from cartels (who put their stamp on it), and of “scaling” or “shimmer” from the cocaine, which the u/c understood to be another reference to the high quality of the cocaine.
[46] The u/c and applicant also discussed how purchasers of cocaine are often upset with and often complain about the quality of cocaine as a result of dilution.
[47] At the end of the training session, the applicant told the u/c he could likely put him in touch with his cocaine supplier, but there was no discussion about specifically contacting anyone else to get cocaine.
[48] The u/c agreed to purchase one ounce of marijuana from the applicant for $150 at his residence later that day. After purchasing the drug later that day, the u/c de-briefed the other officers, advising them about his conversations with the applicant and turning over the purchased drug.
[49] At this point in time, the u/c believed he had reasonable suspicion that the applicant was trafficking in cocaine but not reasonable grounds to obtain a search warrant for the applicant’s residence.
[50] The next training session took place on April 3, 2018 and the u/c brought $2500 of buy money with him. His continued objective was to ignite conversation about further drug trafficking. When paying for the session, the u/c made sure the applicant could see the large amount of cash the u/c brought with him as he wanted the applicant to continue to believe that the u/c was an active drug trafficker.
[51] The applicant spoke of purchasing large quantities of marijuana for about $1600-$1800/pound and about how his female supplier comes to his home with 1-2 pounds/week.
[52] After a discussion during the training session about lines of body movement, the applicant then spoke of lines of cocaine. The u/c told the applicant that he currently purchases his cocaine from a Toronto supplier for $2000-$2300/ounce. The applicant indicated that he purchases cocaine straight from the bikers and referred to this cocaine as “fish scale” and as strong-smelling. The applicant stated that he doesn’t hold large quantities of cocaine at his house for fear of addiction. The discussion then turned to different modes of concealing drugs – for example, in stash houses – to avoid police detection.
[53] On April 5, 2018, the u/c received a text message from the applicant stating that the applicant was not able to contact his supplier. The message used coded language with “white t-shirt” referring to cocaine.
[54] The applicant sent a further series of text messages to the u/c on April 7, 2018. These messages “came out of the blue” and had the applicant wanting to know exactly who he was dealing with and wanting to safeguard himself.
[55] The applicant asked the u/c to provide some personal details such as whose name his cell phone was registered under. The applicant then texted “Sorry yo. I don’t do this type of stuff anymore so I need to know real people.” After the u/c provided much of the information sought by the applicant and after the u/c offered reassurance, the applicant then texted, on April 9, 2018, “I don’t do this kind of stuff anymore so I was just getting it for you. Have a family and stuff so I don’t want any thing happening lol.”
[56] The u/c did not believe the applicant at this time and felt that these messages were a weak attempt by him to conceal the fact that he still occasionally trafficked in cocaine.
[57] At the next training session on April 10, 2018, the u/c testified that the conversation immediately turned to drugs. The applicant told the u/c he could now only get 1/4 of an ounce for $475 and that he had this ounce in his vehicle. The u/c gave the applicant $480.
[58] The u/c and the applicant spoke about making the arrangement to purchase these drugs “a regular thing” if the sample was good. The applicant advised that he didn’t need much advance notice to get these drugs. The u/c and applicant again discussed different strands and quantities of marijuana. They also spoke about having further drug discussions over a workout app the applicant developed, about discussing drug trades with reference to workouts, and not discussing quantities over the phone.
[59] After this workout, the u/c went to the applicant’s vehicle and was given a clear bag and what appeared to be 1/4 of an ounce of cocaine, which was turned over to SPS later that day during the de-brief.
[60] The u/c described how he had often bought multiple drugs from the same dealer and often started out buying one drug and then started buying another at a later time. The u/c described the marijuana trafficking of the applicant as a neutral factor in his assessment of whether the applicant was trafficking in cocaine, in part due to the leniency in sentencing for marijuana trafficking at the time.
[61] In cross-examination, the u/c testified that it was not his determination of whether “reasonable suspicion” existed and that that determination ultimately went to the investigators.
[62] He acknowledged being briefed by SPS on February 27, 2018 about the investigation to date, including information from CIs, databases, and surveillance. He agreed that he would consider both inculpatory and exculpatory information he received throughout the undercover operation.
[63] He agreed that, in two specific instances during his March 22, 2018 conversation with the applicant, he pulled the conversation back towards cocaine after the applicant spoke about marijuana trafficking but denied specifically pushing the entire conversation in that direction. He was confident that he was not the sole person initiating the conversations about cocaine.
[64] He accepted that the applicant was more open and less careful in discussing his marijuana trafficking than other traffickers. He described how he debriefed D/C Serf about the March 22, 2018 conversation and did not recall telling D/C Serf that the applicant was going to get him cocaine.
[65] The u/c believed that he made his notes on the conversation from this day at his home detachment later that same day, possibly within 6 hours after having the conversation with the applicant, and that these notes were a summary of the conversation and were not verbatim. He remained confident that the applicant was referring to cocaine when he told him he picked up half an ounce for a friend last week. He accepted that although the applicant may have used words other than “a buddy” or “last week,” he was fairly certain that the applicant used words to that effect and was very confident that the applicant was speaking about cocaine.
[66] When asked about why he didn’t believe the applicant when he told him by text message on April 7, 2018 that he didn’t traffic in cocaine anymore, the u/c explained that he thought the applicant was saying this as a “legal cover” and agreed that it deserved some limited weight in his assessment of whether the applicant was actively trafficking in cocaine. The u/c explained that, from other u/c operations he had done, he had learned that he can’t take everything told to him as fact.
[67] When asked about the text exchange on April 9, 2018, where the applicant again texted that he “doesn’t do this stuff anymore” and is just doing it for the u/c, the u/c understood that to mean that the applicant now only traffics for a few individuals. He believed the applicant’s motivation for sending the text was to make him think the applicant doesn’t traffic in cocaine. He believed that this was the applicant once again trying to safeguard himself legally. He pointed out that the text that he “doesn’t do this stuff anymore” started with the applicant telling the u/c he was “just covering my ass haha.”
[68] The u/c testified that the applicant sold him cocaine shortly after this text. He recalled that the applicant indicated that the price for the cocaine would be $1900/ounce, although he agreed that this wasn’t in his notes. The u/c did not believe that the applicant had the cocaine at this time and testified that, in his experience, most ounce-level drug dealers don’t hold onto the ounce.
Detective Constable Serf (“D/C Serf”)
[69] D/C Serf has been a member of the SPS since 2011 and with the Street Crimes Unit since 2015. He has experience with previous drug investigations, undercover investigations, and being an affiant for warrants.
[70] His role in this investigation was as handler of the u/c, surveillance officer, and exhibit officer. He readily admitted that his note-taking from various debriefings with the u/c were sparse and not very detailed. He said that he had never worked with a u/c before but that he knew that this u/c was very experienced.
[71] The goal of the investigation was to corroborate the CI information and conduct a further investigation into the applicant’s involvement in trafficking in CDSA substances.
[72] D/C Serf immediately acknowledged an omission from his earlier testimony at the preliminary hearing, where he testified that there were two CIs referred to in the ITO. He later realized, when he spoke with the Crown, that the presence of a third CI (CI3) was not included or referenced in the ITO and that he was the handler of CI3. He had no explanation for why CI3 was not referenced in the ITO.
[73] He received information from C13 in the fall of 2017 (or approximately 6 months before the April 2018 transactions) that the applicant was acquainted with another target and was getting cocaine from him. CI3 had provided reliable information in the past, had been given consideration for this information, and had been cautioned about telling the truth.
[74] CI3 had given police information at least 6 times in the past and, although such information proved to be accurate and reliable as a result of police corroboration, none of it led to any arrests or drug seizures. CI3 had a criminal record, but there were no convictions for crimes of deceit.
[75] Based on judicial authorizations for transmission data recording (“TDR”) and vehicle tracking granted on December 8, 2017 and January 29, 2018, SPS were able to view calls on the applicant’s phone and track where his vehicle had travelled. Initial surveillance revealed that a number of persons made short visits to the applicant’s home and that the applicant made short visits to the residences of persons involved in the drug sub-culture.
[76] D/C Serf could not recall any specific observations he personally made regarding cocaine transactions but knew of other officers who observed a known cocaine user attending at the applicant’s residence for short visits. This was consistent with information provided by CI3 as to the identity of the cocaine user who purchased cocaine from the applicant.
[77] D/C Serf was also aware that, on February 13, 2018, the applicant was observed leaving items in a mailbox, that a vehicle came to his residence to retrieve those items later that same evening, and that this vehicle was registered to a person known to police as involved in the cocaine trade.
[78] Police could not identify the person who operated the vehicle on February 13, 2018. However, three days later, on February 16, 2018, police observed that same vehicle being driven by the same person known as involved in the drug trade. On that day, police also observed that same person retrieve a small white package from his vehicle and hand it to another male who had a prior conviction for cocaine possession. Police believe this last observation was a drug transaction.
[79] D/C Serf also became aware of the applicant making a short visit, on February 8, 2018, at the Mitchell workplace of a male know to police to have had prior convictions for cocaine possession and trafficking. A second meeting between the applicant and that same male also occurred on February 17, 2018, where the applicant’s vehicle attended at the residence of that same male in Varna, some 50 minutes away, for a period of 22 minutes. D/C Serf believed both of these visits were for making drug transactions.
[80] D/C Serf could not explain why police decided to go the u/c route as opposed to obtaining and executing a search warrant at the applicant’s residence. D/C Serf indicated that this was not his decision.
[81] D/C Serf recalled debriefing the u/c on the specifics of the investigation and identifying the goal of the investigation as being to look for possible cocaine purchases. D/C Serf believed the investigation began in late February, with the first de-brief occurring in mid-March.
[82] D/C Serf again referred to his failure to note many of the details of his conversations with the u/c and to the fact that the quality of his notes was not very good. He had a note of a conversation of March 22, 2018 confirming the purchase, by the u/c, of one ounce of marijuana from the applicant at the applicant’s residence.
[83] D/C Serf recalled discussing with the u/c that the applicant could access lots of marijuana but that the applicant’s access to cocaine was different. Although not in his notes, D/C Serf testified that the u/c told him that the applicant could still get cocaine if the u/c wanted some. D/C Serf testified that the u/c also told him that the applicant had gotten some “scaly” and “stinky” stuff for friends and could get the same stuff for the u/c.
[84] D/C Serf believed from his discussions with the u/c that the applicant moved a fair bit of cocaine when he was younger but was not moving as much cocaine now. This information confirmed the investigators’ earlier suspicions about the applicant and allowed the police’s plan – to purchase cocaine and to try to better understand the network in the area – to move forward.
[85] In cross-examination, D/C Serf agreed that his reasonable suspicion that the applicant was trafficking cocaine was based on:
i. surveillance;
ii. CI information;
iii. conversations between the u/c and the applicant, including conversations where the applicant said that he could get cocaine for the u/c and that the applicant was not as involved in cocaine as he was in the past;
and
iv. a January 2016 arrest of a male who was suspected of purchasing drugs from the applicant, involved in activity with the applicant at a downtown bar consistent with drug trafficking, and arrested shortly thereafter while in possession of marijuana; there was a suspicion by police at the time that items flushed down the toilet shortly before the arrest may have been cocaine but nothing was recovered to support such suspicion.
[86] D/C Serf was told that the applicant would get cocaine for a friend but could not recall being told by the u/c that the applicant had recently gotten half an ounce of cocaine for a friend. He agreed that this admission would not have factored into his assessment of whether he reasonably suspected that the applicant was currently trafficking in cocaine.
[87] D/C Serf insisted that his memory was vivid with respect to the u/c telling him that the applicant “not being as into it as he was before” referred clearly to cocaine and not marijuana.
[88] D/C Serf was not sure when the first cocaine deal took place but recalled being told that the applicant could provide a sample of the cocaine for the u/c.
[89] D/C Serf did not recall being told that the applicant could refer the u/c to someone else for cocaine but was not told that the applicant was “pushing off” the u/c to another cocaine supplier.
[90] When directed to a series of April 2018 text messages where the applicant texts the u/c, in a text conversation regarding cocaine, that he doesn’t “do this type of stuff anymore,” D/C Serf testified that he could not recall seeing that specific message earlier.
[91] D/C Serf accepted that, although his observations through surveillance of the applicant were consistent with drug transactions, he could not say which drug was being trafficked and that it may have been marijuana.
[92] He accepted that his reliance on CI information was limited to CI1 and CI3. He explained that CI1 and CI3 provided significant information that he could not divulge.
[93] He repeated his earlier claims that he misspoke at the preliminary hearing regarding the existence of a third CI and explained that he was not properly or fully prepared to testify at that time.
[94] D/C Serf accepted that his surveillance notes left out the fact that he was later able to positively identify the male driver of the vehicle who, on February 13, 2018, retrieved items from the applicant’s mailbox and that this information was consistent with a named male associate of the applicant, as identified by CI3. D/C Serf testified that he was 100% confident in the identity of this male.
Positions of the Parties
[95] The applicant relies on the following arguments in support of his submission that he was entrapped by police:
i. D/C Serf’s beliefs are the only ones relevant to determining whether police had the necessary “reasonable suspicion” but D/C’s beliefs were based on inaccurate and misleading information, such as information the applicant told the u/c that he could “get him cocaine”;
ii. D/C Serf’s lacked timely notes, misunderstood the law, and misidentified or was inaccurate with respect to dates, all of which, taken together, make his evidence unreliable and untrustworthy;
iii. The police failed to take into account compelling exculpatory evidence, such as the applicant’s April 9, 2018 text messages to the u/c after they had agreed on a cocaine transaction but before the transaction took place, where the applicant tells the u/c that he doesn’t “do this type of stuff anymore”;
iv. The applicant denied that he told the u/c during a March 22, 2018 workout session that he recently trafficked in cocaine for a friend;
v. The objective grounds for the police to have “reasonable suspicion” were also lacking, given the unreliable nature of the CI information, including the unexplained and suspicious manner in which CI3 appeared, and the equivocal nature of the police surveillance;
and
vi. This is one of those “clearest of cases” that warrants a stay of the two cocaine trafficking counts, given the massive disconnect between D/C Serf’s alleged grounds and the actual things said and done.
[96] The Crown counters with the following submissions:
i. D/C Smith is capable of forming the necessary beliefs for “reasonable suspicion” and likely had those beliefs after his initial de-brief on February 27, 2018 and certainly had those beliefs after his workout session with the applicant on March 22, 2018;
ii. The CI information, coupled with and corroborated by the extensive police surveillance and database checks, met the low threshold for “reasonable suspicion,” even in the absence of the u/c investigation;
iii. The CI information is credible, compelling, and corroborated on many material aspects and, when viewed as part of the totality of the circumstances in the overall investigation, supports the reasonable inference that the applicant was trafficking in cocaine at the time of the investigation;
iv. The text messages of April 7 and 9, 2018 from the applicant to the u/c were not exculpatory because they were untrue, unreliable, and, in any event, took place after the offence was committed and should therefore not be considered;
and
v. This is far from the rarest or clearest of cases to warrant a stay of these cocaine trafficking counts, as the police behaviour is within acceptable limits and the applicant is not an innocent or otherwise law-abiding citizen.
The Law on Entrapment
[97] The law on entrapment is well settled. The doctrine of entrapment is not a defence per se but permits a conviction to be stayed where a court finds that police conduct was offensive and exploitative and that court action is required to avoid an abuse of process: see R. v. Ahmad, 2020 SCC 11, 63 C.R. (7th) 1 [Ahmad], at para. 17.
[98] The doctrine also recognizes that crimes such as drug trafficking are both difficult to investigate and cause significant public harm and that police must therefore be given necessary leeway to effectively and fully investigate these offences: Ahmad at para. 19.
[99] Entrapment can occur in two ways:
i. Police provide the person with an opportunity to commit the offence without having “reasonable suspicion” that the person is already engaged in that criminal activity or without a bona fide inquiry
or
ii. Police move beyond providing that opportunity and induce the person to commit the offence: see R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903 [Mack].
[100] On these facts, the parties agree that there is no evidence of the second branch of entrapment, i.e., that the police induced the applicant to commit the cocaine trafficking offences, and that I need only focus on the first branch of entrapment, i.e., whether police provided an opportunity for a person to commit an offence without reasonable suspicion that the person is already engaged in the particular illegal activity or without a bona fide inquiry: Mack and R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449.
[101] The reasonable suspicion standard is not a high or onerous standard and does not reach the level of reasonable grounds, balance of probabilities, or even a prima facie case. It requires only the possibility rather than the probability of criminal activity and must withstand objective scrutiny: Ahmad at para. 46.
[102] The focus is on reasonable suspicion at the time the opportunity is provided to commit the offence: Ahmad at para. 71.
[103] In other words, to meet the reasonable suspicion standard, police must have knowledge of sufficient and verifiable information to reasonably suspect the applicant was trafficking in cocaine prior to April 3, 2018.
[104] Although other explanations and exculpatory evidence are relevant considerations, police are not obligated to conduct further investigation to rule out such explanations: Ahmad at para. 47.
[105] A bald tip, standing alone, with no police efforts to further investigate will not suffice. These police efforts need not be extensive and must simply confirm some of the information received. When relying on tips from confidential informants, courts must examine such information to ensure that it is compelling, credible, and corroborated in some way: see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.
[106] The reasonable suspicion standard is met if the inference possibly exists. The focus is on the totality of information known to the police at the time of the investigation.
[107] The onus rests with the applicant on a balance of probabilities to demonstrate that police conduct constitutes an abuse of process by entrapment and a stay should only be granted in the clearest of cases: Mack at p. 975.
[108] The primary issue is whether police conduct amounted to a legitimate step in a criminal investigation or whether police conduct amounted to providing or presenting the applicant with an opportunity to commit offences where the police lacked reasonable suspicion that the applicant was already engaged in committing such offences.
[109] It is possible for police to form reasonable suspicion in the course of conversations with the target but prior to presenting the target with the opportunity to commit the offence: Ahmad at paras. 54-55.
[110] What is imperative is that courts do not permit police to attract otherwise law-abiding citizens to commit criminal offences: see R. v. Imoro, 2010 ONCA 122, 72 C.R. (6th) 292, at para. 11.
Findings of Credibility
The Applicant
[111] I begin with the applicant. I carefully watched and listened to the applicant’s evidence. He readily admitted that, at the time of these offences, he was a heavy marijuana user and dealer and an “occasional” cocaine user. By “occasional,” he explained that he meant he used cocaine every few months and on special occasions.
[112] Although he denies telling the u/c on March 22, 2018 that he picked up half an ounce of cocaine for a friend the week prior, he admits to later selling cocaine to the u/c several times because “the extra cash didn’t hurt” and to cutting out some of the cocaine he sold to the u/c and replacing it with filler to balance the weight.
[113] He agreed that his memory wasn’t very good on details regarding dates and conversations, admitted to likely deleting all of his texts and messages to the u/c, and admitted to likely asking the u/c to do the same.
[114] He agreed to knowing the current price for different quantities of cocaine without having to make any inquiries to others, to describing the cocaine as “shiny” and “fish-scaling” based on his experiences selling cocaine in 2010, to picking up a considerable amount of cocaine at a time, and to being aware that it was cheaper to buy cocaine in bulk.
[115] He acknowledged a good rapport with the u/c. In fact, the applicant agreed that most of what the u/c testified to regarding dates, meetings, comments, and marijuana sales was accurate.
[116] However, I have great difficulty accepting all of the applicant’s evidence, particularly when that evidence conflicts with the evidence of the u/c about specific conversations between them. By his own admission, he was having difficulty recalling specifics about conversations, was cutting out some of what he was selling to the u/c for himself, was using terms and phrases consistent with cocaine dealing to describe the quality of the cocaine, and was referencing getting the cocaine from bikers to ensure high quality.
[117] The applicant seemed to have a very clear recall of what he didn’t say but a rather poor recall of what he did. In short, I found much of his testimony on the critical issues of what he told the u/c on March 22 and April 3, 2018 to be lacking credibility and not worthy of belief.
[118] I will have more to say about his evidence later in these reasons.
D/C Smith
[119] I next turn to D/C Smith. He testified in a credible and straightforward manner. He relied on detailed notes made at the time of his conversations with the applicant or shortly thereafter. He was a most impressive witness.
[120] He was a very experienced u/c officer and quickly developed a strong rapport and relationship with the applicant. He was careful to only place words in quotation marks when he was confident that he could recall the exact words used. In other circumstances, he did his best to recall the substance of what was said and to record it in summary. He was, at times, very confident that his summary notes accurately captured the essence of the conversations.
[121] When specifically challenged in cross-examination, he readily accepted times that he may have pushed the conversation in a certain direction but remained very confident that his notes and independent recollection were both accurate and reliable records of conversations.
[122] When outlining the extensive cocaine conversations of March 22, 2018, he readily acknowledged that, although he held a reasonable suspicion that the applicant was currently trafficking cocaine, he did not believe he had the reasonable grounds necessary to obtain a search warrant for the applicant’s residence for the offence of cocaine trafficking at the time (although he did have sufficient grounds to obtain a warrant for marijuana trafficking).
[123] In other words, he recognized the different thresholds required at various stages of an investigation and was mindful of these throughout his role.
[124] I accept his evidence. I prefer it and depend upon it when it conflicts with the evidence of the applicant and D/C Serf. More specifically, I find as a fact that D/C Smith’s evidence about the nature and content of the conversations between D/C Smith and the applicant on both March 22 and April 3, 2018 accurately reflects what the applicant said at those times. I will have much more to say about his evidence later in these reasons.
D/C Serf
[125] I next move to D/C Serf. I am mindful that this was his first time acting as a handler for a u/c. I also accept that he was not properly prepared for the preliminary hearing and was very forthcoming in admitting his numerous shortcomings in the course of this investigation.
[126] In summary, I briefly refer to some of those shortcomings:
i. His scant notes of his many de-briefs with the u/c and the team, as handler of the u/c, were concerning;
ii. His inability to explain how CI3 was omitted from the ITO for the warrant to search the applicant’s residence and how he omitted to reference the existence of CI3 in his evidence at the preliminary hearing was also somewhat concerning;
and
iii. His confusion around dates and times and the specific words said by the u/c at the de-briefings was again somewhat concerning, yet clearly a by-product of the scant notes.
[127] These shortcomings are cause for some concern and careful reflection. However, a finding of confusion, lax note-taking practices, misunderstanding of some dates and the content of conversations, and miscommunication at a preliminary hearing is not to be equated with a finding of dishonesty or some other devious motive. He was one member of a team of investigators and most of the information relied on by way of CIs, database checks, surveillance, and u/c conversations with the applicant are all capable of objectively validating and confirming his evidence. Simply put, I find some of his evidence to be both credible and trustworthy and some of his evidence to be neither.
[128] More specifically, when his evidence conflicts with D/C Smith’s, I prefer and accept the evidence of D/C Smith.
[129] Again, although the result of lax communication, I draw no adverse inference from the omission of CI3 in either the warrant or preliminary hearing testimony and certainly reject any unsupported suggestion that this information was fabricated to retroactively strengthen the case. This was inadvertent sloppiness and lax communication.
[130] Accordingly, I accept some of D/C Serf’s evidence, particularly when I am satisfied that it is corroborated by other trustworthy third-party evidence.
[131] More specifically, although not in his scant notes regarding the March 22, 2018 de-brief with the u/c, D/C Serf testified that the u/c told him that the applicant could still get cocaine if the u/c wanted some. D/C Serf testified that the u/c also told him that the applicant had gotten some “scaly” and “stinky” stuff for friends and could get the same stuff for the u/c.
[132] I accept this evidence. Although not verbatim with what D/C Smith testified he heard, D/C Serf’s evidence is nonetheless generally consistent with what D/C Smith recalled. I do not agree with the applicant that D/C Serf’s beliefs were entirely grounded in fiction. Although his recall of exact words used was inaccurate, he nonetheless fairly captured the substance of much of the conversation, and, more importantly, the salient point that the applicant remained somewhat active as a cocaine trafficker. His mis-apprehension of words spoken is not fatal to the validity of his honest belief given the extensive additional information known by him at the time.
[133] I will have more to say about D/C Serf’s role and his beliefs later in these reasons.
Discussion
[134] I start my analysis with a review of the material aspects of D/C Smith’s evidence. His evidence is compelling and credible on the following material issues and, as such, I accept it as fact.
i. Based on the information provided to him on February 27, 2018, including CI information, police database checks, police surveillance and observations, he formed a belief at that time that he reasonably suspected the applicant was currently trafficking in cocaine;
ii. During his March 22, 2018 meeting with the applicant, the applicant disclosed to him that he sold a lot of cocaine about 10 years ago (when he would sell 9 ounces or a “9 pack”) and that he used to get this cocaine from organized crime groups. The applicant went on to state that, within the past week, he picked up half an ounce of cocaine for a friend, that he didn’t do this anymore, but that he still could. The conversation at the time also included a discussion by the applicant about the quality of cocaine, including a “stamp” on the cocaine from cartels and describing the “scaling” on the cocaine as “fish scaling” or “shiny,” which the u/c understood to be a reference to the high quality of the cocaine. Based on this conversation and his subsequent purchase of an ounce of marijuana from the applicant at his home later that day, D/C Smith reasonably suspected at that time that the applicant was actively involved in trafficking cocaine;
and
iii. During his April 3, 2018 meeting with the applicant, the applicant repeated many of his earlier comments regarding the quality of cocaine from his biker suppliers, referring to the cocaine as “fish scale” and “strong smelling,” and started discussing ways to stash cocaine. The discussion concluded with the applicant agreeing to sell the u/c an ounce of cocaine for $1900 without speaking to anyone else about the price.
[135] The initial meetings between the u/c and the applicant commencing March 6 to April 3, 2018 are properly described as police taking legitimate investigative steps in advance of the cocaine traffic-by-offer offence taking place on April 3, 2018.
[136] For clarity, I find as a fact that the applicant agreed to provide a sample ounce of cocaine to the u/c at an agreed upon price and weight on April 3, 2018. The subsequent text messages after that date are of little consequence. The main focus of the u/c investigation is accordingly the time period from March 22 to April 3, 2018.
[137] Having accepted as fact that the above conversations took place as testified to by D/C Smith, that D/C Smith held a belief that he reasonably suspected that the applicant was trafficking in cocaine as early as February 27, 2018, and had a certain belief to this effect on March 22, 2018 and again on or by April 3, 2018, in advance of the offer to purchase, I turn next to address each of the main arguments raised by the applicant.
[138] The primary focus now shifts to an objective assessment of police conduct and a determination of whether D/C Smith’s and D/C Serf’s beliefs withstand objective scrutiny.
1. D/C Serf must be the sole focus for police having reasonable suspicion
[139] I disagree. No caselaw was referred to for this proposition and to believe it goes against both common sense and logic. On a daily basis, police officers share information with each other, which permits each officer to form the necessary grounds for belief. Whether in making an arrest or swearing an ITO, police officers rely on information shared between them routinely to form the basis for their beliefs.
[140] They operate as a team and not as a group of separate individuals. They are entitled to act on the basis of information received or shared by other officers.
[141] The law does not require that a specific and designated officer within a team of officers assigned to an investigation be the one to form these beliefs. Simply put, D/C Smith was entitled to form such beliefs and that fact that D/C Serf was the lead officer or that it was “his call” to make decisions during the investigation is of no consequence in terms of whether police had reasonable suspicion for the purposes of entrapment: see R. v. Li, 2019 BCCA 344, 381 C.C.C. (3d) 363 [Li], at para. 19, aff’d 2020 SCC 12, 65 C.R. (7th) 87.
[142] It would be wholly impractical and unreasonable to limit these types of investigations to the beliefs of a single officer. This type of suggested restriction is arbitrary, unwarranted, and unduly restrictive, given modern police practices. It is the collective conduct of the police investigative team that is before me and I must examine the totality of that conduct.
[143] I pause to add that police are also free to determine, within lawful bounds, how they conduct their investigation. They are not obligated to execute search warrants even if grounds exist to do so and are free to choose the mode of investigation appropriate in the circumstances.
[144] Accordingly, I will first consider the beliefs of D/C Smith in determining whether police had the necessary “reasonable suspicion.” In assessing the objective reasonableness of D/C Smith’s beliefs, I am mindful of the following:
i. He was provided with extensive preliminary background information by SPS on February 27, 2018, including details about CI information, police surveillance, police database checks, and information arising from TDR and tracking warrants tracking the applicants phone calls and vehicle trips;
ii. Throughout the undercover operation, he took detailed notes and distinguished verbatim comments from summaries which were supplemented by his independent recollection of certain conversations;
iii. He observed the applicant meet with a known cocaine user on March 6, 2018;
iv. The applicant readily told him he uses and sells large amounts of marijuana and sold the u/c marijuana at the applicant’s house on March 22, 2018;
v. The applicant also told the u/c on March 22, 2018 that he picked up half an ounce for a friend the previous week, that he didn’t always do that anymore, but that he still could. The u/c was confident that this discussion was in reference to cocaine. The u/c and the applicant had a further discussion at that time about pricing and quality of cocaine, including discussion about the scaling and the shimmer of the cocaine;
vi. On April 3, 2018, after further discussions regarding cocaine quality and concealment of drugs, the applicant agreed to sell the applicant an ounce of cocaine for $1900 and to provide a sample ounce on April 5, 2018.
[145] As earlier stated, the fact that the applicant texted the u/c on April 5, 2018 and in the days following to let him know he could not contact his supplier is of no consequence, given that the opportunity to commit the offence and the offence itself occurred two days prior.
[146] I further rely on D/C Smith’s extensive experience with stash houses, drug jargon, drug traffickers, and drug traffickers often dealing in more than one drug. I accept the reasonable inferences D/C Smith drew based on his extensive experience.
[147] The conduct of the u/c was appropriate police conduct in the course of a lawful undercover drug investigation and the u/c was certainly entitled to share with the applicant that he was unhappy with his current cocaine supplier and was paying more than market price for his cocaine. The applicant’s immediate and mostly unsolicited response to these complaints made clear that he already had a cocaine supplier and was ready to immediately offer both product and price.
2. Police failure to consider exculpatory evidence
[148] This argument turns on the determination of whether the applicant’s text messages between April 5 and 9, 2018 were, in fact, exculpatory and on whether I should consider any evidence beyond April 3, 2018 after the offence of traffic-by-offer was concluded. I adopt my earlier comments regarding the limited relevance of activity after April 3, 2018. However, for purposes of completeness, I will address this evidence.
[149] Returning to the evidence of D/C Smith, I accept his evidence that he did not believe the applicant when he sent these texts to the effect that he does not sell cocaine anymore. Why would he? A few days earlier, the applicant agreed to sell him an ounce of cocaine. He relied on his experience from other u/c investigations that he cannot accept everything that is said to him as factual; he was entitled to place very little weight on the applicant’s text message denials once he was satisfied that they were not true.
[150] D/C Smith relied on the fact that, after providing a few brief responses to the applicant’s texts indicating that “he doesn’t do this kind of stuff anymore,” the texts immediately stopped and the deals went through. It is also noteworthy that the opening words to the April 9, 2018 text denying he does this (i.e., cocaine trafficking) are “just covering my ass haha.”
[151] Police are entitled to determine how they choose to investigate crime and are not bound to follow up on information that they reasonably believe is untrustworthy.
[152] In any event, I agree with the Crown that these texts are irrelevant since they occur after the offence date of April 3, 2018. Given the broad definition of trafficking in s. 2(1)(c) of the CDSA to include “making an offer,” a request to purchase a drug during conversation is sufficient to constitute an opportunity to commit the offence: see Ahmad at para. 66.
[153] Stated differently, on the evidence before me, police must form reasonable suspicion before offering the applicant the opportunity to traffic in cocaine. The reasonable suspicion in this case may be reached before or during the undercover investigation.
[154] Notwithstanding my view that the texts are not relevant in determining whether reasonable suspicion was met, I nonetheless find, even after having taken these text messages into account, that I accept the evidence of D/C Smith. In the circumstances, D/C Smith was entitled to disbelieve these texts, to place little weight on them, and to treat them as effectively non-exculpatory.
3. D/C Serf’s shortcomings
[155] There can be little doubt that D/C Serf’s actions or inactions are cause for pause and careful reflection. However, the issue before me is whether they are sufficient to negate the “reasonable suspicion” required of the police in these circumstances. I conclude that they are not.
[156] Simply put, although somewhat concerning, they do not stand in the way of otherwise overwhelming, significant, and objectively verifiable information that amply support the low threshold necessary for reasonable suspicion in the circumstances.
[157] I accept D/C Serf’s evidence that he had a reasonable suspicion that the applicant was trafficking in cocaine. This belief was primarily based on the following:
i. First-hand information from both CI1 and CI3, both of whom are proven and reliable, during the fall of 2017 and winter 2018; these CIs informed the police that that the applicant sells cocaine in town, that he is selling a lot of it, and that he drives a Volvo SUV; these CIs also provided the police with the names of a supplier to the applicant and a male purchaser of the applicant;
and
ii. Police surveillance between January 2, 2016 and April 3, 2018 and information received from TDR and tracing warrants, which corroborated much of the information provided by CI3, including the applicant’s vehicle, the applicant’s attendance at the residence of a known male with a criminal record for cocaine trafficking, as well as the known and named males’ attendance at the applicant’s residence, often for short visits.
[158] I place very little weight on the January 2016 arrest in which police suspected cocaine was flushed down the toilet. It would be mere speculation to reasonably infer that the thing flushed down the toilet that day was in fact cocaine.
[159] Having placed little to no weight on the specific comments made by the applicant to the u/c, I am satisfied that the objective threshold required for D/C Serf to reasonably suspect that the applicant was trafficking in cocaine has been met.
[160] His shortcomings, although misguided and unfortunate, are not elevated to the point of negating his belief and the overwhelming and objectively verifiable information underpinning this belief.
[161] Even accepting his misunderstanding of what was said, the substance of his discussion with the u/c on March 22, 2018 strengthened the sufficient level of reasonable suspicion that he already had.
4. Reliability of CI information
[162] This argument deals with the reliability of the CI information and whether it was sufficiently corroborated through police investigation and surveillance.
[163] Both CIs were tested. CI1 had provided information that led to both arrests and drug seizures and CI3 provided information that was extensively corroborated by police through surveillance and database checks. The information shared by the CIs included:
i. The name and nickname of the applicant and the car he drives;
ii. The name of the applicant’s supplier and named users who buy from the applicant;
iii. The types of drugs the applicant deals in, including cocaine;
and
iv. First-hand observations of the applicant selling cocaine in the fall of 2017, which included the price and quantity he was selling.
[164] These tips are compelling as they contain detailed, specific, substantial, and recent information. The information is primarily first-hand and confirms that the drug activity is ongoing.
[165] These tips are credible as they come from tested informants who have both proven reliable in the past. CI1 has provided information at least 6 times in the past 2 years, which has led to the arrest of at least 2 persons and the seizure of controlled substances. CI1’s information has never proven to be false.
[166] It is not surprising that CI1, like many other CIs, is immersed in the drug and criminal subculture and is an admitted user. Standing alone, this is but one factor to consider and is certainly not dispositive of credibility or reliability where other strong indicia of reliability are present.
[167] CI3 provided additional information, redacted on the basis of CI privilege, regarding the quantity and price of the cocaine the applicant was selling and a name of a person who was purchasing cocaine from the applicant.
[168] The corroboration in this case can fairly be described as overwhelming. Police observed significant activity on many of the 24 separate days they set up surveillance between November 2017 and March 25, 2018; observed the applicant attending, on two occasions, at the residence CI1 indicated was the applicant’s supplier; and observed a named cocaine supplier attending the applicant’s residence.
[169] The only reasonable conclusion arising from the reliable and confirmed CI information is that the applicant was trafficking in cocaine at the time the u/c was introduced into the investigation.
5. The applicant’s evidence should be believed
[170] I have already addressed the applicant’s credibility. As earlier stated, I accept and prefer the evidence of D/C Smith and disbelieve the applicant’s evidence as to what was said between the parties on March 22, and April 3, 2018. I place little weight on the self-serving text messages sent by the applicant after April 3, 2018. Actions speak louder than words.
6. Clearest of cases warranting a stay
[171] This is far from the clearest of cases in which a stay would be warranted for Counts 5 and 6. Reasonable suspicion existed at the time the police surveillance corroborated the credible CI information. It got stronger when the u/c investigation further confirmed the credible CI information. This is not a close call.
[172] This is not a rare case where state conduct is so egregious that that conduct would undermine public confidence in the criminal justice system. Nothing the police did was shocking or unwarranted. Nothing the police did undermined society’s expectations of fair play or amounted to an abuse of process. Not even close.
Conclusion
[173] Police acted on reliable and credible CI information, confirmed by database checks, extensive surveillance – including what appeared to them to be no less than 12 short-visit drug transactions – and TDR and tracking device information, much of which was then reconfirmed by the words and actions of the applicant. Police far exceeded the low threshold required for reasonable suspicion before providing the applicant with an opportunity to sell cocaine.
[174] Police did not change the applicant from a marijuana dealer to a cocaine dealer. The applicant was already a cocaine dealer who, not surprisingly, sold cocaine to a u/c, as cocaine dealers sometimes do.
[175] This was not a case of the applicant “pushing off” police when asked about cocaine. Rather than reject them and move on, his brief utterances that he did not traffic or sell cocaine anymore are followed up with extensive discussions about quality, quantity, and suppliers of cocaine. His momentary and half-hearted efforts after April 3 to suggest that he did not traffic cocaine anymore ring hollow in light of his conduct.
[176] The evidence here far surpasses untested Crimestopper tips like those in Li, where there were limited police checks and no investigation. This is not a situation of repeated persistence by police or of police exploiting a vulnerable person and/or an addiction. Objectively assessed, police conducted a thorough, proper, and lawful drug investigation in accordance with their legal duties to act.
[177] The offer to buy drugs was made well after the necessary suspicion was formed. Both D/C Smith and D/C Serf, at multiple stages, formed the necessary reasonable suspicion, which was based on objectively discernable facts. This is not a case of police entrapping a law-abiding and innocent citizen. This is an active cocaine trafficker plying his trade unknowingly to a u/c.
[178] For the above reasons, the application is dismissed.
“Justice M.A. Garson”
Justice M.A. Garson
Date: December 8, 2020