COURT FILE NO.: 17-0113

DATE: 2021/04/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

DEEPAN BUDLAKOTI Applicant

Matthew Humphreys, for the Crown

Dominic Lamb and Jonathan Nadler, for the Applicant, Deepan Budlakoti

HEARD: November 23-27, 30, 2020, December 1-4, 7-11, 14-17, 21, 2020, January 7-8, 2021

REASONS FOR DECISION ON ENTRAPMENT AND s. 7 charter APPLICATION

LABROSSE j.

Overview

[1] In 2017, the Ontario Provincial Police (“OPP”) initiated Project Landslide (the “Project”) as an investigation into the trafficking of drugs and firearms in Eastern Ontario. The Project had several targets, one of which was the Applicant Deepan Budlakoti.

[2] Mr. Budlakoti became a target in the Project as a result of alleged contacts he made while incarcerated at the Val-Tétreau Detention Facility in Gatineau, Québec in 2016. While at Val-Tétreau, Mr. Budlakoti met an inmate, N.R., who was located within the same range. That inmate would later become a police agent for the OPP and will be referred to herein as the Police Agent.

[3] Once released, the Police Agent indicated a desire to distance himself from his criminal past, and he became more active as a confidential informant for the OPP in or about the fall of 2016. While acting as an informant, he recounted discussions he had with Mr. Budlakoti while at Val-Tétreau. Mr. Budlakoti was alleged to have significant knowledge about firearms trafficking and to have told the Police Agent that he could provide him with firearms once they were released.

[4] From the Police Agent’s information, Mr. Budlakoti was identified as a target in the Project.

[5] While the OPP proceeded with the planning phase for Project Landslide, the Police Agent was assessed to become a police agent and he was eventually approved. He signed a Service Provider Agreement (“SPA”) on May 8, 2017 and as of that date acted in the capacity of a police agent.

[6] The Police Agent contacted Mr. Budlakoti and arranged for the purchase of five firearms. The first two firearms purchases were on June 30, 2017 and July 4, 2017. Following these two purchases, the OPP received authorizations under s. 184.2 of the Criminal Code, being one-party consents, which allowed the OPP to record the next three firearm transfers along with numerous discussions between the Police Agent and Mr. Budlakoti. The other firearms transactions took place on July 26, 2017, August 21, 2017 and October 5, 2017.

[7] Mr. Budlakoti stood trial on a 19-count indictment related to the trafficking of firearms. At the conclusion of the Crown’s case, Mr. Budlakoti advised that he was not opposing findings of guilt on 18 counts with one count being withdrawn by the Crown.

[8] There was an agreement by Crown and Defence that four of the counts would be stayed as a result of the application of the principle in [Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729], and that this would be dealt with if the matter proceeded to sentencing.

[9] On December 15, 2020, the Court provided brief oral reasons confirming findings of guilt on the 18 remaining counts on the indictment.

[10] The matter then proceeded with two Defence applications in which the Applicant sought a stay of proceedings based on both entrapment and a broader allegation of abuse of process pursuant to s. 7 of the Canadian Charter of Rights and Freedoms.

[11] The entrapment application alleges that the OPP, and in particular the Police Agent, exploited the Applicant and his vulnerable position as a stateless person in Canada and induced him into selling firearms.

[12] The s. 7 Charter application alleges that the OPP allowed the Police Agent, a demonstrably volatile individual with a prolific and remarkably violent criminal history, who was suffering from significant mental health instability at the time, to purchase and carry firearms in busy commercial parking lots and residential neighbourhoods with inadequate monitoring. Further, the Defence alleges that the OPP deployed surveillance officers who knew nothing about the Police Agent and were not sufficiently proximate to the scene of the firearms transactions to assure the public safety if anything had gone wrong. The Project at large amounted to conduct that would shock the conscience of the community and violate the community’s sense of fair play and decency. Alternatively, it is submitted that the operation went beyond the considerable latitude given to police in executing such operations.

[13] The primary relief claimed is a stay of proceedings. In the alternative, the Applicant seeks a reduction in his sentence.

Factual Background

Project Landslide

[14] The Project held its first meeting on January 16, 2017. It was proposed to be an agent-led investigation into drug and firearms trafficking in the East Region of Ontario. Multiple targets were discussed, including Mr. Budlakoti.

[15] As part of this Project, the OPP sought the services of a police informant, N.R., to act as a police agent. The Police Agent had an extensive history of drug dealing, collecting debts and other criminal activity associated with drugs and firearms trafficking offences. He claimed to possess the ability to target individuals identified as being responsible for the distribution of drugs and firearms.

[16] In January 2017, the OPP began the process to assess the Police Agent, who was then an informant. A preliminary interview was conducted between the Police Agent and members of the Witness Protection Unit of the OPP. Various reports were prepared about the Police Agent’s potential as a police agent. On January 27, 2017, the Police Agent was interviewed by Dr. Peter Collins who is a forensic psychiatrist. A report dated February 13, 2017 was prepared by Dr. Collins which essentially concludes that concerns about the Police Agent can be mitigated.

[17] During his interview with Dr. Collins, the Police Agent advised him that he would be assisting the OPP in drug and gun investigations. In his report, Dr. Collins highlighted that the Police Agent had a long-standing history of clinical depression and anxiety. At the time of the report, he was being prescribed clonazepam for antianxiety, venlafaxine (Effexor) an antidepressant and mirtazapine (Remeron) an antidepressant that is also sedating.

[18] The Police Agent informed Dr. Collins of certain parts of his criminal record and that he had associations with two organized motorcycle gangs; that he trafficked in cocaine, methamphetamine and cannabis; that he was an enforcer to criminally motivated organizations; that in the past he had used ecstasy and speed on the weekends; and that he was presently on parole.

[19] During the interview, the Police Agent advised that his depression was reasonably well controlled, but that he had a relapse after the death of a family member and that there is a family history of depression. Dr. Collins noted that the Police Agent was being treated for depression and anxiety. It was noted that he was presently doing well. He denied being depressed when interviewed. He denied any suicidal or homicidal ideation.

[20] Dr. Collins highlighted that the Police Agent’s mood disorder would have to be monitored and that he was available if it became an issue. Dr. Collins was concerned with his long-term use of clonazepam and stated that he should be referred for a medication consultation after the Project was complete.

[21] While the OPP was working through the assessment of the Police Agent as a police agent, they had put in place a team of handlers to work with him. This team was comprised of Detective Constable Dan Dube, Detective Constable Robert McCleary and Detective Constable Michael Crete – all of whom were experienced police officers. Det. McCleary took an agent handler course in 2016. Det. Dube had also been a handler for a police agent on five other occasions.

[22] The roles and responsibilities of an agent handler include: taking investigative notes; to be a conduit between the police agent and the command team of an investigation; provide direction to the police agent at the appropriate time; to brief the police agent on the objective of a particular scenario; to debrief the police agent following a deployment or a contact and clarify any issues that may have arisen and documenting it accordingly; ensuring that both the briefings and debriefings are done on video before and after a deployment; document any contact with the police agent; document contact between the police agent and the people of interest; and conduct sworn KGB interviews with the police agent on a weekly basis to obtain statements to document the investigation.

[23] Furthermore, Det. Crete testified that as the third handler, his job was to liaise with the police agent on a daily basis; answer any questions that he may have; deal with expenses like lunch; to contribute to operational planning; ensure that the police agent followed the SPA; be involved in the debriefings; search the police agent’s vehicle before and after a deployment; secure any evidence obtained by the police agent; install the SIM card for the in-vehicle camera; and monitor the “officer protection kit” while the police agent was deployed out into the field for the scenarios.

[24] As part of the process of qualifying the Police Agent, he underwent a first Vetrovec interview on February 16, 2017 to provide the historical background with respect to his life and specific details of his criminal history. This interview is also used to determine if the police agent is being truthful with respect to his criminal history. The OPP then attempted to corroborate the information provided by the Police Agent and it was generally felt that he had been honest.

[25] Of note is that the name Deepan Budlakoti came from the Police Agent and did not originate from the OPP. The Police Agent knew Mr. Budlakoti from his time at the Val-Tétreau jail, and he said that they had discussed the purchase of firearms. The Police Agent said that Mr. Budlakoti claimed to have access to brand new handguns, AK-47s, AR-15s, Glocks, the Punisher (a type of handgun) and silencers, and that he sold these firearms to street gangs in the Hull and Ottawa regions. The Police Agent testified that Mr. Budlakoti referenced the price for Glocks as being $3,500 to $4,500 depending on if they were new or used. Mr. Budlakoti was said to have provided the Police Agent with a phone number and email address to contact him.

[26] Det. McCleary testified that the process to move from project proposal, to staffing and to funding all happens within the higher ranks of the OPP. Generally, the process takes weeks and months to advance to approval. During this time, the Police Agent was providing information to Det. Dube and Det. McCleary.

[27] Towards the end of March 2017, Det. McCleary testified that he began drafting Situation Mission Execution Administration Communication (“SMEAC”) templates in relation to Mr. Budlakoti. A SMEAC is an operational plan for a possible detail, whether it be a deployment, a contact, a surveillance detail, etc.

[28] On March 27, 2017, the Project had been approved following a joint-management team meeting and the “probe” phase would begin in April 2017. The “probe” phase would last 6-8 weeks and would involve re-establishing contact with persons of interest, evidence-gathering and possible deployments. Det. McCleary testified that the Project would continue to progress if the Police Agent was successful in signing the SPA in order to move from a confidential informant to a police agent.

[29] During the following weeks, Det. McCleary and others were involved in drafting operational plans and in finding a safe location for the team and a covert vehicle for the Police Agent. They also prepared for the use of an officer protection kit, which is often used by undercover operators for safety purposes as opposed to evidentiary purposes, in order to provide audio to a cover team or surveillance team to keep an operator safe. They also held a follow-up Vetrovec interview to address other issues from the Police Agent’s history that came up in conversations – incidents that he had forgotten and now remembered.

[30] In cross-examination, the Police Agent admitted to not being entirely truthful with his handlers about some of the details of his prior involvement in criminality.

[31] As part of the assessment of the Police Agent, he was required to provide the OPP with consent to access to his social media accounts. He would have also provided his consent to an authorization under s. 184.2 of the Criminal Code to have his private communications intercepted.

[32] In May 2017, the Police Agent entered into the SPA with the OPP and officially passed from being a confidential informant to a police agent. The SPA covers the Police Agent’s obligations, police obligations, details of payments to the Police Agent during the operational phase and the prosecution phase and the Police Agent’s possible participation in the Witness Protection Program.

[33] From May 29, 2017, through to June 30, 2017, the Police Agent testified that he sent text messages to the Applicant leading up to the first purchase of a firearm on June 30, 2017. The Applicant did not respond in substance until June 28, 2017 when he gave a date, time and address for a meeting after they spoke on the phone that same day.

[34] On June 30, 2017, the Police Agent set up a meeting with the Applicant under the direction of his handlers and purchased an AK-47 from the Applicant. Then, on July 4, 2017, the Agent purchased an AR-15 from the Applicant. These purchases formed part of the Information to Obtain a one-party consent authorization pursuant to s. 184.2 of the Criminal Code. That authorization was granted by Dorval J. on July 7, 2017 and the Project continued from there.

Deepan Budlakoti

[35] In order to assess the Applicant’s claim of entrapment, one must first understand Mr. Budlakoti’s background and what the Defence refers to as his unique vulnerabilities.

[36] Mr. Budlakoti is 31 years old and was born in Ottawa, Ontario to parents of Indian nationality. He has lived his entire life in Canada and has always considered himself to be a Canadian national.

[37] In 1985, his parents obtained employment as domestic servants at the High Commission of India in Ottawa. They were issued Indian diplomatic passports. In June 1989, they ceased their employment with the High Commission of India, and on October 17, 1989, the Applicant was born. His parents eventually became Canadian citizens in the late 1990s. They did not apply for citizenship for the Applicant as it was understood that he was a Canadian citizen by birth. The Applicant was provided Canadian identification to support this, including a Canadian passport when he was a teenager.

[38] Mr. Budlakoti testified that he suffered from the physical abuse of his father as a child. He ran away from home when he was nine years old and was eventually placed in the care of the Children’s Aid Society of Ottawa as a Crown ward.

[39] As a youth living in foster homes and group homes, Mr. Budlakoti developed behavioural issues and ran into problems with the criminal justice system. He also was the victim of abuse during the course of his time in foster care. At the age of 17, Mr. Budlakoti voluntarily terminated his Crown wardship. He lived on his own and graduated high school. He obtained a certificate as a heavy equipment operator.

[40] In 2009-2010, as an adult, he was convicted of breaking and entering, and for trafficking two firearms. On the latter conviction, he was sentenced to jail for over three years. He also claims to have been the victim of an assault by a corrections officer. He has lived in very poor conditions and was exposed to much violence in prison.

[41] Mr. Budlakoti first learned of the claim that he was not a Canadian citizen in 2010 while incarcerated at the Ottawa-Carleton Detention Centre. After having pled to his break and enter charges, the Canada Border Services Agency (“CBSA”) advised him of their inquiry into his citizenship. After reviewing his birth certificate and passport, the CBSA ultimately advised him that he was not eligible to remain in Canada, that he was not a Canadian citizen but a permanent resident, and that his Canadian passport had been issued in error. Given that his conviction qualified as serious criminality, he would be rendered “inadmissible” to Canada pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and a removal order to India would issue.

[42] After years of unsuccessful litigation to have his citizenship restored, the removal order has remained in force despite the Indian government refusing to recognize him as an Indian national. Therefore, his removal order continues to be enforceable on an indefinite basis, and Mr. Budlakoti remains in legal limbo as he has no nationality and no prospect of retaining one. The fact that both countries have refused to recognize his nationality is thus tantamount to rendering him stateless.

[43] While living in the community under these circumstances, the Applicant claims that he experienced significant hardship. Upon his release from jail in 2013, he was subject to strict and indefinite immigration bail conditions. On one occasion, five armed CBSA officers arrived at his home without warning to check on his compliance. Four years later, he continued to have to report bi-weekly to the CBSA to report any change in address, and to be subject to indefinite detention for any breach. The Applicant has no social insurance number and claims to have difficulty obtaining lawful work. He claims that he is forced to deal with food and housing insecurity, a loss of meaningful interpersonal relationships and no healthcare coverage or access to other government services.

[44] This immigration dilemma has had a negative effect on his emotional and mental health. He claims to suffer from anxiety and depression and sleep loss, and he has been diagnosed as having Post Traumatic Stress symptoms as a result of his early childhood abuse, his time in custody and the fact that he is a stateless person. He remains anxious about the quandary he finds himself in, and the uncertainty of his long-term future in this country.

[45] These latter observations were further made in two psychiatric reports and one letter from his treating physician that were filed with the Court. On December 19, 2014, Dr. James Deutsch prepared a psychiatric report of the Applicant as it pertained to his restrictive immigration release conditions and how they have impacted him. Dr. Donald Payne also prepared two reports dated February 10, 2015 and February 25, 2017 addressing these same issues. Lastly, Dr. Atif Murtaza, his treating physician, provided a letter dated February 28, 2017 concerning PTSD symptoms.

[46] Dr. Deutsch testified that individuals who are suffering from post-traumatic stress disorder (“PTSD”) are sometimes unable to mobilize to avoid the situations that have plagued or triggered them. He described it as a “flight and flight and freeze”, where many of these individuals are stuck in the freeze phase and are continuously experiencing trauma. He added, when asked by the Crown about PTSD victims’ free will, that many individuals feel helpless and think things are determined for them.

[47] Dr. Laura van Waas provided opinion evidence to this Court during the course of the entrapment hearing on statelessness and the unique vulnerabilities that stateless persons face. Dr. van Waas was qualified as an expert on international law as it pertains to statelessness and nationality. She is an assistant professor at the Department of European and International Law at Tilburg Law School in the Netherlands and is the founder and co-director of the Institute on Statelessness and Inclusion. Her expertise was not challenged.

[48] Her report characterizes a stateless person as someone who is not considered as a national by any state under the operation of its law. She states that where a person lacks any nationality, he or she does not enjoy the attached rights or duties, resulting in a lack of protection. A stateless person is seen and treated as a foreigner everywhere, as a national nowhere. A person can be stateless, either through never having nationality to begin with, or where that person lost their nationality that was once held.

[49] Dr. van Waas further wrote that stateless persons are easy targets for victimization and exploitative practices such as forced labour or extortion. From an emotional and psychological perspective, statelessness threatens one’s sense of belonging, self-esteem, control and meaningful existence.

[50] In her testimony, she added that stateless persons who are victims of crime can be more fearful of approaching authorities and choose to use less-formal mechanisms. In other contexts, these persons who are caught in limbo, and are branded as “illegal”, may be forced to turn to subsistence crime to get by day by day.

[51] Dr. van Waas added that in some cases stateless persons face even more difficult hurdles than illegal migrants as they cannot change their situation and may be trapped in this situation indefinitely.

[52] Dr. van Waas concluded that the Applicant’s circumstances met the definition of statelessness, and that his profile would expose him to the same vulnerabilities as she had outlined in her report and testimony.

[53] In cross-examination, Dr. van Waas agreed that there was a spectrum for statelessness and depending on the challenges in having certain benefits, the impact of statelessness on a person can vary. However, her general findings on the impact of statelessness were not significantly challenged.

[54] The Applicant testified that his first interaction with the Police Agent was about a month and a half into their time in jail together. The Applicant had been making noise while exercising in the washroom area of the jail. The Police Agent was annoyed and agitated by the noise, approaching Mr. Budlakoti and demanding that he be quiet. Other inmates had to intervene. Mr. Budlakoti testified that this was a memorable incident for him as the Police Agent was very intimidating.

[55] According to the Applicant, the Police Agent ran the unit at the Val-Tétreau jail. He controlled the range for showers, meals, space in the fridge and what drugs were coming into the unit. The Police Agent got into fights with other inmates. The Police Agent confirmed this in cross-examination. Towards the end of their time together, the Police Agent, Mr. Budlakoti and Andre Kenemy began to play cards. They would discuss steroids, speed and their respective charges, and they had brief conversations about different firearms.

[56] The Applicant denied that he ever discussed being able to sell guns, or that he could sell guns to the Police Agent. Moreover, he never provided the Police Agent with his contact information for the purposes of communicating after they were out. He did, however, provide his contact information to others, including Mr. Kenemy.

[57] The Applicant testified that he had no intention of having further contact with the Police Agent. According to the Applicant, the Police Agent was a bully inside who would push people to do things. He did not want to be involved with the Police Agent.

[58] The Applicant testified that Mr. Kenemy first communicated with him by text in February 2017 on behalf of the Police Agent, and that this continued through until May. Mr. Kenemy persistently texted, called and used the Wickr mobile application, advising that the Police Agent wanted to meet up to discuss selling firearms, and that if he did not, it would cause them both problems. The Applicant testified that Mr. Kenemy contacted him at least once a week in the beginning and that by May, it was at least three times a week.

[59] The Applicant also testified that the Police Agent began to reach out to the Applicant in May, using the TextMe mobile application, phone calls and Wickr, approximately 15-17 times. The Applicant explained that the TextMe application allowed someone to change their phone number on the application, while Wickr was an application that allowed its messages to be encrypted, and thus more secure.

[60] The Applicant was not interested in communicating with the Police Agent, nor was he in the business of weapons trafficking. Nevertheless, he felt immense pressure from the Police Agent and Mr. Kenemy. Mr. Kenemy knew where he lived. If he did not comply, he feared his door would be kicked in, and he could be injured or killed by the Police Agent, who was a menacing and much larger figure than him.

[61] This stress was further exacerbated by his ongoing issues relating to his immigration situation, his medical difficulties and his inadequate health coverage.

[62] The Applicant testified that after many attempts to contact him through various platforms and devices, the Applicant finally responded, and made efforts to secure and sell a firearm to the Police Agent on June 30, 2017 with the intention to never deal with the Police Agent again.

The Police Agent

[63] The analysis of the relevant issues surrounding entrapment and abuse of process is affected by the background and personal characteristics of the Police Agent.

[64] The Police Agent, N.R., has spent a considerable amount of his adult life split between custody or out on the streets as an enforcer and drug dealer for various criminal organizations. He possesses an intimidating presence, as evidenced through his criminal history. He is known to many in the criminal underworld in the Ottawa/Gatineau region as “Twin” or “Jumeau” for his reputation, alongside his now-deceased twin brother, for enforcing their gang-controlled territories.

[65] The Police Agent began his criminal career in 2003 with assaults, before being sentenced in 2004 to five years’ imprisonment for being part of a four-day kidnapping and beating of a competing drug dealer. In 2010, he was sentenced to two years for various firearms possession offences. In 2012, he shot another gang member, point blank, in the back, but only served three months for aggravated assault and forced another person to take responsibility for the shooting.

[66] In April 2014, after his brother passed away, the Police Agent claims he had decided to leave the criminal lifestyle behind. However, he was arrested again in December of that year for various firearms possession offences.

[67] While serving his two-year sentence for these offences, he met the Applicant at Gatineau’s Val-Tétreau jail. Prior to this, the Applicant and the Police Agent did not know each other.

[68] The Police Agent testified that he discussed various types of firearms with Mr. Budlakoti who told the Police Agent that he could obtain various new firearms. The Police Agent testified that they also discussed pricing for various firearms and that the information given by the Applicant demonstrated that he was knowledgeable about firearms trafficking.

[69] In the weeks following the Police Agent’s release from the Val-Tétreau jail, he approached the OPP as an informant and provided information including his belief that the Applicant was involved in the trafficking of firearms. By February 2017, the Police Agent was being considered as a Police Agent. Part of his motivation was financial, and this was reflected in the SPA which sets out that the Police Agent stood to earn approximately $700,000 from his participation as a police agent.

[70] On March 6 and 7, 2017, the Police Agent attended the residence of Mr. Kenemy, an acquaintance (friend) of the Applicant who is known to Gatineau police as a long-time drug dealer. The Police Agent provided Mr. Kenemy with his cell phone number to provide to the Applicant.

[71] Between March 7, 2017 to June 28, 2017, the Police Agent testified that he reached out to Mr. Kenemy on a number of occasions to contact the Applicant. The Police Agent then sent text messages to the Applicant between May 29, 2017 and June 30, 2017. There is evidence that the two men spoke by phone on June 28, 2017.

[72] On the issue of the number of contacts, the Police Agent’s evidence differs from the evidence of Mr. Budlakoti. The Police Agent agreed that in March 2017, he attended at Mr. Kenemy’s residence and provided Mr. Kenemy with his cell phone number to provide to Mr. Budlakoti and that he asked for Mr. Budlakoti’s cell number. The Police Agent agreed that he asked Mr. Kenemy to tell the Applicant that he wanted to speak to him.

[73] The Police Agent testified that he returned to Mr. Kenemy’s residence the following day to arrange for a face-to-face meeting with the Applicant.

[74] The Police Agent agreed that it was not until he returned to Mr. Kenemy’s residence on April 10, 2017 that he received a telephone number for Mr. Budlakoti. The Police Agent was unclear if he had tried to call the Applicant’s phone before that date. At some point, Mr. Kenemy reached the Applicant and was told that the Applicant felt that the Police Agent was “too hot” because the Police Agent was tied up with bikers.

[75] He testified that his involvement in contacting Mr. Budlakoti directly did not start until late May 2017 although there was a suggestion that he may have tried earlier and did not get an answer. It was on May 29, 2017 that the Police Agent texted Mr. Budlakoti at 613-265-1364. The Police Agent testified that this was the first time he sent a text message directly to the Applicant. The number texted responded with a question mark.

[76] On June 15, 2017, the Police Agent reached out again to the Applicant by text to attempt to meet with him for lunch in Ottawa. There was no response.

[77] On June 28, 2017, the Police Agent texted the Applicant twice, once from his police agent phone and once from his personal phone. He sought to meet and go eat together. On this date, the Applicant first responded at 4:14 p.m. with “Who?” on the Police Agent’s personal phone. After speaking on the phone later that day, the Applicant then responded on the other phone with the address “1751 Merivale Rd, Nepean ON K2G 3K2” and then the date of Friday, June 30 at 7 p.m.

[78] The evidence about the Police Agent is not complete without considering his conduct during this trial. In direct examination, the Police Agent was maintained in a controlled environment of questions which allowed him to reference his notes at times and essentially follow the Crown’s examination-in-chief without being challenged on his evidence.

[79] The Police Agent’s calm demeanour changed drastically in cross-examination. When challenged on issues, he became agitated and often belligerent with Defence counsel. He objected to the proper cross-examination on his criminal record and often objected to questions by taking the position that he was not the one on trial. He stormed out of the courtroom without seeking the permission of the Court and had to be brought back and persuaded to continue after taking several breaks.

[80] The Police Agent’s conduct during cross-examination was unacceptable at times. The Court was required to intervene and request that he calm down and focus on the question. If there was no objection to a question, this meant that he was required to answer it.

[81] The cross-examination of the Police Agent demonstrates the extent to which he is intolerant of any person who challenges him. He exhibited signs of emotional disturbance and anger management issues. His conduct causes the Court to have serious questions about the reliability of his evidence where such evidence cannot be otherwise corroborated.

[82] There are few areas where the conflicting evidence is not supported by other corroborating evidence. As will be further explained in these reasons, the following conflicting areas all settle in favour of the Police Agent’s evidence:

a. The Applicant’s offer to sell firearms at the Val-Tétreau jail;

b. The number of times that the Police Agent tried to contact the Applicant before May 29, 2017;

c. If the Police Agent communicated directly with the Applicant by Wickr or another platform prior to June 28, 2017;

d. If the Police Agent continued to communicate with the Applicant on various devices during the Project, unknown to his handlers.

OPP Cover Team

[83] As part of Project Landslide, the OPP had a cover team who followed the Police Agent from and back to the safe location during deployments. The cover team also monitored meetings with the Applicant and particularly the meetings that involved the purchase and sale of firearms. It is important to understand that due to the covert nature of surveillance, it is not static. Officers who are part of cover teams are often driving by to make an observation or they are parked at a distance with limited exposure to the Police Agent’s activities.

[84] This is illustrated by the first transaction to purchase a firearm on June 30, 2017. While the Police Agent and the Applicant drove to the Dymon Storage location, certain officers had brief observations of the Police Agent’s movements, but they are not continuous observations. This can be seen by the fact that when they enter the Dymon Storage location, the cover team is not present. The observations inside the Dymon Storage facility are made through Dymon’s internal camera system.

[85] The cover team would vary from day to day but generally, they were officers with previous surveillance experience. In particular, Det. Sgt. Joe Amicone is a 30-year veteran with the OPP, and he was the Officer in Charge on a number of occasions when the Police Agent was deployed to meet with the Applicant.

[86] Det. Sgt. Amicone testified that the Officer in Charge of the cover team has many responsibilities during a deployment such as to ensure respect for the Criminal Code, the Highway Traffic Act, R.S.O. 1990, c. H.8, and to abide by the guidelines of the deployment. The Officer in Charge is the person who makes the decisions on the road if decisions need to be made.

[87] Various members of the cover team testified during this trial and they generally agreed that the primary role was to ensure the safety of the police agent, the target and members of the public. They each confirmed that during a deployment, they would have had their use of force options available to them including their firearms. They testified to their role to watch for counter-surveillance and to make observations of what the Police Agent does before, during and after the meeting with the target. There would be an operation plan which is reviewed by each member of the team and which includes contingency or emergency plans and police techniques in place to step in if there was a situation that needed to be handled to ensure someone’s safety, to protect the investigation or to provide for the extraction of the Police Agent.

[88] The involvement of the cover team includes the surveillance of the actions of a target and also those of the Police Agent. Members of the cover team are prepared to intervene to prevent the Police Agent from causing bodily harm or to prevent an offence from being committed.

[89] An issue was made of the knowledge of the members of the cover team. Most were not aware of the Police Agent’s past and his propensity for violence. However, as indicated by Det. Cst. Bridgeman, the threat matrix for a firearms transaction is at a very high level in all circumstances and this would not vary significantly as a result of the history of violence or mental health of the Police Agent. The presence of firearms makes the situational awareness one of the highest levels for preparedness and awareness. Members of the cover team were prepared to use lethal force to prevent bodily harm or death if necessary.

Handlers

[90] Also relevant to the s. 7 Application is the work done by the Police Agent’s handlers. Both Det. McCleary and Det. Crete testified as to their relationships with the Police Agent. They both highlighted that he was respectful of the handlers and followed direction. Both handlers testified that there was no indication that during the deployments, the Police Agent posed a threat to the Applicant or to members of the public.

[91] On every deployment, the Police Agent was searched for weapons or any other items of interest. His handlers confirmed that the Police Agent had taken his prescription medication. His handlers also confirmed that he had not consumed any alcohol or non-prescription drugs. The Police Agent was reminded that if at any time during the course of the operation, the Police Agent became concerned for his safety, he was authorized to terminate the operation by ending his conversation with the Applicant and notifying his handlers. The Police Agent’s vehicle was thoroughly searched by his handlers prior to and after each deployment.

[92] There was also evidence that the handlers would use their judgment on how and when to deploy the Police Agent. They would assess how he was doing and react accordingly. They were conscious that the Police Agent was a very large man who did not always take care of himself. At times, they would agree that he could return home early and complete his notes the following day. There were times where they would have him turn off his phone or not respond to Mr. Budlakoti if they felt that he was tired or looking like he needed to get away.

[93] The Police Agent’s handlers had the ability to track the Police Agent’s car. During purchases #3, #4 and #5, they had the ability to actually watch live what was occurring inside the vehicle. The handlers had the ability to communicate via radio with the “road boss” for the cover team who would then distribute any relevant information to members of his team.

[94] While the cover team may not have been alive to the frailties in the Police Agent’s emotional and physical condition, this cannot be said of the police handlers. Both Det. McCleary and Det. Crete testified to being alive to the Police Agent’s condition. The following safeguards were in place:

a. The handlers would evaluate the Police Agent during briefings and debriefings. Det. McCleary did not recall witnessing any briefing in which it was not clear in his mind that the Police Agent knew what he was going to do. Det. McCleary stated that he would not have deployed the Police Agent if he had concerns about him;

b. Det. McCleary also testified that there were times when, based on the Police Agent’s mood and physical health, they would make investigative decisions with respect to his deployment.

First Purchase – June 30, 2017

[95] The first two purchases were made prior to the OPP having received the authorization pursuant to s. 184.2 of the Criminal Code. As such, these purchases were not video recorded. The first purchase was for an AK-47 for $2,000, as well as a large amount of ammunition for $500.

[96] Relevant to the s. 7 Charter Application, the process surrounding this deployment was as follows:

a. Det. McCleary arrived at the safe house in advance of the Police Agent. Upon the Police Agent’s arrival, Det. McCleary searched the Police Agent’s vehicle.

b. Det. McCleary then drafted a SMEAC or operation plan for this deployment. The initial objective was simply to negotiate for the future purchase of firearms.

c. The handlers confirmed that the Police Agent had not been drinking alcohol, that he had taken his prescription medication and that had not taken any non-prescribed drugs.

d. The handlers also provided the Police Agent with $4000 to pay for a firearm and $200 for incidentals.

e. The deployment was preceded by a briefing and then followed by a debriefing.

f. The cover team was assigned to escort the Police Agent to the meeting, to cover the meeting and to follow the Police Agent back to the safe location after the meeting. The evidence of the handlers was that they would not have deployed the Police Agent if they had a concern for public safety.

g. The cover team was comprised of five veteran OPP officers.

h. The cover team was in communication with the handlers either via radio or a chat group. They were looking for counter surveillance or anything unusual that may result in changing or aborting the operation.

i. The Police Agent’s vehicle was equipped with a GPS tracking device and Det. McCleary monitored the GPS location of the Police Agent’s vehicle during this deployment.

j. During the deployment, the Police Agent was in communication with the handlers. He called them to advise that that the time and location of the meeting had changed. Officers from the cover team were able to adjust their surveillance and have officers attend the new locations such as at the Hardstones Bar during the first meeting. This allowed them to be present in the restaurant during the meeting. The same was done when the Police Agent advised the handlers that they were heading to the Dymon Storage facility to purchase a firearm.

k. Following the purchase of the firearm, the Police Agent called his handlers a third time to advise them that he had purchased a firearm and his handlers directed him to return to the safe location with the cover team following.

l. Upon arrival at the safe location, the Police Agent left the vehicle to be searched by one of the handlers and entered the safe location for a recorded debriefing.

m. Following the debriefing, the Police Agent prepared his handwritten notes of the deployment.

[97] The Court was advised that this general process was followed for each deployment and particularly each firearm purchase.

[98] The June 30, 2017 transaction was the only purchase that transpired inside a building. This was dictated by the Applicant who advised the Police Agent of this fact while at the restaurant during their initial visit. The cover team had to change their approach to surveillance and there was no cover available to the Police Agent while inside the Dymon Storage facility. While most of the transaction itself was recorded on the Dymon Storage surveillance cameras, there was no available police cover during the time that the Police Agent was with the Applicant inside the storage facility.

Second Purchase – July 4, 2017

[99] The second purchase took place in the parking lot of the Farm Boy on Bank Street in Ottawa. It involved the purchase of an AR-15 with six rounds of ammunition for $3900.

[100] As with the first purchase, the OPP followed a similar process involving the Police Agent’s vehicle being searched, briefing and debriefing, cover team assistance and communications between the Police Agent and the handlers and between the handlers and the cover team. Reference is made to a partial video of the transaction taken by the cover team located in proximity from a covert vehicle in the Farm Boy parking lot. The Police Agent testified to picking up a case from the bushes behind the Applicant’s car and putting it in the Applicant’s trunk. The video then shows the Police Agent transferring the case from the Applicant’s car to the Police Agent’s car.

[101] Also relevant to this transaction is that the cover team lost track of the Police Agent following the transaction when the Police Agent had the firearm in the trunk of his vehicle. Prior to leaving the Farm Boy parking lot, the Police Agent left his vehicle unattended and walked over to Giant Tiger to purchase candy and soft drinks. The purchased firearm remained in the trunk of the Police Agent’s vehicle.

[102] The evidence of Det. St-Amand reflects this situation whereby they realized that the Police Agent’s vehicle had not left the parking lot and the members of the cover team were required to return and locate the vehicle and the Police Agent as he exited Giant Tiger and eventually left the parking lot on route to the safe location.

[103] On this date, the Police Agent returned to the safe location and indicated that he was not feeling well. He appeared to have a gastro or stomach issue. The handlers allowed the Police Agent to leave early and indicated that he could finish his handwritten notes at a later date.

Third Purchase – July 26, 2017

[104] At the time of the third purchase, the one-party consent authorization had been obtained and the Police Agent’s vehicle was equipped with a camera and a microphone which allowed the handlers to monitor the discussions and the firearms transaction inside the vehicle.

[105] On July 26, 2017, the Applicant texted the Police Agent for a meeting at the Home Depot parking lot at Baseline Road and Woodroffe Avenue. The location was selected by the Applicant. The third purchase was for an Uzi and 30 rounds of 9mm ammunition. The Police Agent paid $4700 for the firearm and ammunition.

[106] For this purchase, the video of the briefing was played in Court and Det. McCleary testified that the video of the briefing was, in general, representative of all the briefings with respect to the Applicant. During the deployment, the handlers monitored the Police Agent’s vehicle tracker as well as the covert camera inside the Police Agent’s vehicle. The cover team was also present monitoring the purchase of the Uzi.

[107] After the purchase, the Police Agent checked in with his handlers to advise that an exhibit was on board. The handlers could also listen to the officer protection kit to determine if a purchase had been made.

[108] The Police Agent was debriefed at 00:06 hours. As the Police Agent was quite tired, it was decided that he could complete his notes at a later date.

Fourth Purchase – August 21, 2017

[109] On August 21, 2017, the Applicant called the Police Agent to indicate that he had a firearm for the Police Agent. The Applicant then texted for the Police Agent to meet him in a residential subdivision in Greely, Ontario. The location was again selected by the Applicant.

[110] On that day, the cover team for the Police Agent consisted of five veteran OPP officers. In addition, there was an OPP Physical Surveillance Unit comprised of six OPP officers who were in the area surveilling the Applicant.

[111] The Police Agent purchased a Glock-style handgun from the Applicant. No money changed hands because the Police Agent had previously fronted the Applicant $4700 in cash.

[112] The area of the fourth purchase was described as having few houses around but not as built up as downtown Ottawa. Det. Swrjeski testified that he was 50 meters away and that he did not need to use binoculars to make observations.

[113] The Police Agent advised his handlers that he had evidence in the car with him and that he was returning back to the safe house. At 15:00, once back at the safe house, Det. Crete noted that the Police Agent looked tired.

[114] During the month of September 2017, the scheduled end of the Project was approaching. However, there were discussions amongst the investigative team about possibly extending the project another six to eight weeks. The Police Agent did not like this idea and voiced his displeasure. He indicated that he no longer wanted to be involved. At this time, Det. Crete testified that the Police Agent was starting to get tired and they could see it.

Fifth Purchase – October 5, 2017

[115] The fifth purchase was anticipated to be for several firearms. Det. Crete had gone out to purchase a Bauer hockey bag and it was placed in the Police Agent’s car in anticipation of this purchase.

[116] The location was near the Costco on Merivale Road in Ottawa. The Applicant stated that he liked meeting in busy parking areas. The Applicant also met other men in the parking lot of a Popeye’s restaurant prior to the fifth purchase.

[117] In addition to the six OPP officers providing cover, the OPP provincial surveillance unit was also present. There were delays before this transaction was concluded and the Police Agent kept the handlers apprised of what was happening.

[118] At the end of the deployment, the handlers noticed that the Police Agent was very tired. It was decided that he would be debriefed the following day. He was followed home by Det. Crete.

Winding up Project Landslide

[119] On the weekend of October 6, 2017, the decision was made by the handlers to block the Applicant’s phone number over the weekend and to revisit that decision later. The reason was that the Applicant had not delivered on a number promised transactions and the pricing was getting confusing. They also had sufficient transactions with the Applicant.

[120] On October 6, 2017, there were a number of calls and text messages sent by the Applicant to the Police Agent that were not returned. The Applicant was introducing the notion of the Police Agent providing him with steroids.

[121] For the next several days, the Applicant continued in his attempts to reach the Police Agent. On October 10, 2017, the Police Agent was taken to a medical clinic as a result of an infection on his face. He was prescribed antibiotics and a cream. The handlers noted that he seemed physically and emotionally exhausted.

[122] On October 12, 2017, there were a number of text messages exchanged between the Applicant and the Police Agent. The Police Agent was directed to respond to the Applicant and state his displeasure with the quality of the firearms that the Applicant was now producing. The Police Agent made it clear that he wanted small guns and not hunting rifles.

[123] At this point, following a very clear sign of frustration by the Police Agent, the Applicant responded with “When I have others I will text you.”

[124] Ultimately, the involvement of the Police Agent was not extended and there was an exit interview with the Police Agent to get an overall feel at the end of the project to see if the Police Agent had any safety concerns. Det. McCleary did not recall the Police Agent raising any concerns.

Applicable Law

Entrapment

[125] Entrapment is not a defence to a criminal charge. It is an aspect of the abuse of process doctrine. It is an allegation that the state has engaged in abusive conduct, and that to proceed with the charges without a stay would offend the court’s sense of justice.

[126] The leading case on entrapment has been the Supreme Court of Canada’s decision in R. v. Mack.[^1] As Lamer J. (as he then was) held, entrapment occurs in either of the following two circumstances:

(a) the authorities provide an opportunity to a person to commit an offence without a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide investigation; or,

(b) although having a reasonable suspicion or acting in the course of a bona fide investigation, they go beyond providing an opportunity and induce the commission of an offence.[^2]

[127] As in abuse of process applications, a stay of proceedings is only appropriate in the clearest of cases, and the Applicant bears the onus to establish that he or she was entrapped, on a balance of probabilities.[^3]

[128] More recently, the Supreme Court of Canada reaffirmed the law on entrapment as set out in Mack in its decision in R. v. Ahmad,[^4] where it stated:

Over 30 years ago, this Court’s decision in Mack settled the law of entrapment in Canada. It set out two alternative branches, either of which is sufficient to ground an accused’s claim of entrapment and justify a stay of proceedings:

There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides . . . or, (b) having 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. [p. 959]

At the most general level, the doctrine exists because “[i]t is a deeply ingrained value in our democratic system that the ends do not justify the means” (Mack, at p. 938). Some of those means are unacceptable in a free society with strong notions of fairness, decency, and privacy. Although police must be afforded latitude, entrapment is a species of abuse of process because police involvement in the commission of a crime can bring the administration of justice into disrepute.

Mack determined that the purpose and rationale of the entrapment doctrine lies in a court’s inherent jurisdiction to prevent an abuse of its own processes. Entrapment is not a substantive defence leading to an acquittal, because in most cases the essential elements of the offence will be satisfied, even where entrapment occurred. Rather, the appropriate remedy is a stay of proceedings because “while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction” and a conviction would therefore bring the administration of justice into disrepute (Mack, at p. 944 (emphasis deleted), citing R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, at p. 148). Such a remedy also affirms the primacy of personal freedom: the state simply has no business unjustifiably intruding into individuals’ private lives, randomly testing their virtue, and manufacturing crime (Mack, at p. 941).

[129] In the present case, the Applicant has conceded that the first element of Mack, being reasonable suspicion, is met. Therefore the focus in this case is on whether the police conduct would have induced the average person in the position of the accused, with both strengths and weaknesses, to commit the crime: see Mack, at p. 959.

[130] In R. v. Darnley,[^5] the Court of Appeal for Ontario quoted from Mack and referenced how to determine whether the police have gone beyond providing an opportunity and induced the commission of an offence:

[T]o determine whether the police conduct gives rise to this concern, it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused … I believe such a test is useful not only as an analytical mechanism…. [It] may be inevitable that, when apprised of the factual context of an entrapment case, members of the community will put themselves in the position of the accused; if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety.

[131] However, the Court of Appeal held that there was no requirement of inevitability: Darnley, at paras. 63-64.

[132] In addition, where the person induced to commit a crime has a particular vulnerability that was exploited by state agents, the inquiry becomes more subjective, looking at whether “the [police] conduct was likely to induce criminal conduct in those people who share the characteristic which appears to have been exploited by the police”: Mack, at p. 960.

[133] In essence, the analysis rests on if the police went beyond providing an opportunity to commit the crime in question. To determine whether the police have employed means which go further than providing an opportunity, the Supreme Court wrote, at p. 966 of Mack, that it is useful to consider any or all of the following list of non-exhaustive factors:

• the type of crime being investigated and the availability of other techniques for the police detection of its commission;

• whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

• the persistence and number of attempts made by the police before the accused agreed to committing the offence;

• the type of inducement used by the police including: deceit, fraud, trickery or reward;

• the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;

• whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;

• whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

• the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

• the existence of any threats, implied or express, made to the accused by the police or their agents;

• whether the police conduct is directed at undermining other constitutional values.

[134] In Darnley, the Court of Appeal dealt with an appeal involving a peace officer who was convicted of breach of trust in connection with two incidents. She argued at trial that she was entrapped by her police partner, who was investigating her in an undercover capacity. Justice Paciocco held that to give context to the inquiry, the hypothetical average person must be contemplated to be a police officer engaged in the relevant policing activity. While the Court of Appeal found the trial judge erred in ascribing elevated standards of moral restraint or fortitude to a police officer, the Court reiterated the important factors that Mack directed courts to consider, namely: a vulnerable person’s susceptibility to the emotions of compassion, sympathy, and friendship, or to mental illness or substance addictions.

Entrapment - Analysis

[135] As previously stated, the Applicant bears the onus of proving entrapment on a balance of probabilities. The analysis most commonly requires the application of an objective standard referred to as the hypothetical average person. However, in Mack, Lamer J. left the door open to other forms of entrapment even when it cannot be said that the average person would likely have been induced to commit the crime: see Mack, at pp. 961-962.

[136] The Applicant argues that the Police Agent threatened him into committing these transactions. Further, the Applicant contends that neither the Police Agent nor the OPP had observed the Applicant to be trafficking in firearms and that he was particularly vulnerable as a stateless person. Ultimately, the Applicant relies on the Police Agent’s propensity for violence, his mood swings and his mental health instability as the elements which pushed the Applicant to participate in these transactions. Thus, the average person, with strengths and weaknesses, taking into consideration the vulnerabilities of the Applicant, would likely have acquiesced to the Police Agent’s pressure and demands in order to avoid injury or death.

[137] When considering the entrapment issue, the Court must still balance the concepts of fairness and justice which underlie the integrity the justice system and the need to have effective law enforcement measures to protect the members of society from criminal activity.[^6]

[138] As previously stated, the Defence admits that the reasonable suspicion criteria set out in Mack has been met in this case. I agree. In the context of this large-scale investigation, the information provided by the Police Agent about the Applicant together with the Applicant’s previous firearms convictions provided the OPP with a reasonable suspicion that the Applicant was already engaged in criminal activity.

[139] Turning to the second step, the Court must determine if the OPP went beyond providing an opportunity and induced the Applicant into committing the offences. A review of the Mack factors is required to determine if this is one of the clearest of cases in which entrapment should be recognized on the basis of inducement.

Type of crime

[140] The investigation of firearms trafficking involves secret transactions that are rarely executed in plain sight. Firearms are transferred in bags or otherwise concealed. As in this case, the transfers usually take place in secluded areas such as within a vehicle or in a secluded place that is not in plain view and not conducive to the gathering of evidence by the police. This requires the use of undercover officers or police agents who have access to such covert transactions. The nature of the crime requires that police will use covert methods including the use of police agents who are deemed trustworthy by traffickers as a result of their criminal past and reputation.

[141] At a high level, there is nothing in the manner that this project was structured – through the use of a police agent to access a firearms transaction – that would qualify as being outside the bounds of what would be considered reasonable police conduct in the context of undercover firearms trafficking operations. These types of project are well-known to the Courts. However, the detail lies in the individuals involved and specifically the individual particularities of the Police Agent and those of the Applicant. It is those two factors that lie at the heart of the entrapment issue.

The Average Person

[142] This factor is strongly relied upon by the Applicant who highlights his disadvantaged past and his status as a stateless person to explain, as he argues, his being induced into participating in these firearms transactions.

[143] When considering the average person in the position of the Applicant, I am unable to imagine that the average person would have engaged with the Police Agent and, more particularly, have continued to engage with the Police Agent without even once attempting to bring the ongoing contacts to an end. The Applicant had numerous opportunities where he could have attempted to distance himself from the Police Agent but he instead made the Police Agent pursue him. While it took the Applicant some time to respond when the Police Agent reached out to him initially, the Applicant provided the first firearm on the first occasion that they met and without any apparent hesitation.

[144] I have considered the average person who has had a disadvantaged youth and who has potential immigration issues that limit his ability to integrate into society and cause him ongoing stress in his day-to-day life. However, I am unable to conclude that the manner in which the Police Agent approached the Applicant, without any overt threats or persistent behaviour, would have induced the average person to participate in these firearms transactions.

[145] As was the case in Mack, it is difficult for the Court to conceive that the average person would not initially have declined the Police Agent’s request to purchase a firearm. There is no evidence that the Applicant ever said that he was unable to provide a firearm or that he even tried to leave the Police Agent with the impression that he could not provide that which the Police Agent sought. The Applicant’s reluctance to communicate is not indicative of an inability or unwillingness to perform the requested task. To the contrary, the evidence is that the Applicant was reluctant because he was afraid of being caught dealing with the Police Agent whom he thought was “too hot” given his ties to bikers.

[146] I am also unable to conclude that the Police Agent’s reputation alone as a violent person involved with bikers is sufficient to induce the average person who is not prepared to participate in the trafficking of firearms. The communications and the intercepted conversations reveal that the Police Agent approached the Applicant without pressure and without intimidation. At no time was there any evidence of the Applicant feeling pressured or threatened by the Police Agent’s demeanour. This was only raised by the Applicant in his testimony and is not otherwise part of the record.

[147] The Applicant also relies on the fact that he knew what the Police Agent wanted and that as such, he arranged to obtain a firearm in advance of the first meeting with the Police Agent. This, again, is not how the average person would have acted. The average person with no desire to participate in firearms trafficking would be expected to delay and avoid any ongoing contacts with the Police Agent after being contacted for the first time. There would, at least, be an attempt to avoid the participation in such a serious crime. There is simply no support in the evidence that the manner in which the Police Agent approached the Applicant would have induced the average person to act as the Applicant did, having gone out to purchase a firearm in advance of even the first meeting. In addition, the subsequent transactions and communications demonstrate a willingness to participate in the transactions without any attempts to either limit his involvement or get out after having initially appeased the Police Agent after the first purchase.

[148] During his evidence, the Applicant constantly said that his actions and discussions with the Police Agent were meant to appease and distance himself from the Police Agent. Also, he testified that none of the attempts to encourage the Police Agent to participate in further criminality were legitimate and that the Applicant was only boasting. While I accept that much of what the Applicant said was boasting based on the lack of any other surveillance evidence, the Applicant’s evidence about his desire to distance himself from the Police Agent is rejected. The Applicant’s pattern of behaviour was to make all sorts of promises to further his relationship with the Police Agent.

[149] I have no hesitation in concluding that the average person, with both strengths and weaknesses, in the disadvantaged position of the Applicant, would not have been induced into the commission of these crimes through the conduct of the Police Agent.

Persistence of the Police Agent

[150] I start by completely rejecting the Applicant’s evidence about the number of times that the Police Agent reached out to him and the purported manner in which this was done. There is simply no support in the evidence that the Police Agent would have attempted to contact the Applicant in the manner and with the frequency described by the Applicant. Also, the suggestion that the Police Agent was communicating with the Applicant through different devices and applications, such as Wickr and multiple phones, is simply not believable or supported by the evidence.

[151] I conclude that the evidence supports that the Police Agent reached out to the Applicant as follows:

a. He went to Mr. Kenemy’s residence on four occasions in March and April 2017 to have Mr. Kenemy reach out to the Applicant;

b. Prior to setting up the first meeting, the Police Agent texted the Applicant on May 29, 2017, June 15, 2017 and June 28, 2017. They spoke on the phone on June 28, 2017.

[152] This is the extent of the Police Agent’s evidence about the number of times that he reached out to Mr. Kenemy and the number of times that he sent text messages to the Applicant on either his police agent phone or his personal phone. I prefer the Police Agent’s evidence on this issue. These communications are very far from suggesting that the Police Agent was overly persistent. To the contrary, the Police Agent is simply asking to meet up and go for lunch.

[153] I reject Mr. Budlakoti’s evidence that the Police Agent started reaching out to him in February 2017 and that this continued for the months of February, March, April and May of 2017. Furthermore, Mr. Budlakoti stated that he received threats from the Police Agent through Mr. Kenemy. I reject this evidence as there is no support for it in any of the communications from the Police Agent. Those communications sought out a meeting but always remained friendly and were certainly not threatening.

[154] I also reject Mr. Budlakoti’s evidence that starting in February, Mr. Kenemy contacted him once a week about the Police Agent and that it became three times a week in May 2017. The evidence simply does not support that the Police Agent had Mr. Kenemy reach out over 20 times from February to May 2017. The same applies to Mr. Budlakoti’s contention that the Police Agent reached out to him by TextMe, phone calls and Wickr approximately 15-17 times in May and June 2017.

[155] Also, the nature of the text messages leads me to reject the Applicant’s suggestion that he had a telephone conversation with the Police Agent in May of 2017 in which they discussed the purchase of a firearm.

[156] I come to this conclusion given the ongoing involvement of the Police handlers and how they were directing the Police Agent’s communications with Mr. Kenemy and the Applicant. The Police Agent’s testimony was somewhat ambiguous about the number of times he reached out to the Applicant and the number of devices that he had at a given time, but it is far from supporting the continuous and numerous communications alleged by the Applicant.

[157] In addition, the record of communications between the Police Agent and the Applicant and the nature of those communications confirms that before June 28, 2017, there had been no direct communications between the Police Agent and the Applicant. The only exception would be the “?” response of the Applicant on May 29, 2017. Also, on June 28, 2017, the Applicant responded on what appears to be the Police Agent’s personal phone by saying “Who?” These are simply not responses that a person would give if he had been contacted numerous times in the past five months either directly or through a third party.

[158] The issue of persistence can also be relevant in considering the subsequent firearms transactions. Did the Police Agent pursue the Applicant to try to get him to participate in subsequent transactions? The evidence is overwhelming that he did not. To the contrary, the communications between the Police Agent and the Applicant demonstrate the extent to which it was in large part the Applicant who was persistent in keeping the Police Agent involved in the subsequent transactions. The evidence shows how the Applicant would brag about his ability to supply more firearms to the Police Agent. The Court finds that, in considering the subsequent transactions, there is no evidence of persistence by the Police Agent with the exception of some frustration on his part over the Applicant not delivering on his promises. I reject the Applicant’s evidence that he was only trying to appease the Police Agent. At no time did he even attempt to distance himself from the Police Agent and bring an end to their transactions. To the contrary, the Applicant wanted to increase his participation in criminality with the Police Agent.

[159] Finally, I have considered some of the conflicting evidence about the number of telephones and communication applications that were being used by the Police Agent. I reject the Applicant’s contention that they were communicating by Wickr and that he had at least five different numbers through which he would contact the Police Agent, including three telephone numbers. This conclusion is supported by the Applicant’s own words on September 6, 2017 where he is almost complaining that he only has one number through which he can reach the Police Agent.

[160] Further, I am not persuaded that because different phones were discussed during the evidence, such as a Panasonic phone, an iPhone, a Blackberry and an iPad, there were possibly a number of “off-line” discussions and communications between the Police Agent and the Applicant. This also applies to the evidence that the Police Agent may have had more phones in the past or that he had access to other devices. There are no apparent gaps in the recorded communications that would suggest alternate methods of communication that would be material to the issue of entrapment.

[161] When considered objectively, the level of persistence used by the Police Agent was not excessive by any objective standard. The evidence of persistence is limited to setting up communications and a meeting over a four-month period. There is no evidence that the Police Agent was overly persistent in trying to get the Applicant to meet with him.

[162] There was also an issue made by the Crown about evidence that was not put to the Police Agent with respect to the reason why the Police Agent was reaching out to the Applicant and about the alleged conversation between the two men in May 2017 when the Police Agent is alleged to have said he wanted to buy guns. As I have rejected Mr. Budlakoti’s evidence about the communications prior to June 30, 2017, there is no ruling required.

The type of inducement

[163] When considering the type of inducement, the evidence only supports the financial transactions as they occurred. During the intercepted communications, the Police Agent is often heard telling the Applicant that it is expected that the Applicant will profit from the transactions. There was no evidence of any other benefit to the Applicant such as gaining favours from gang members or the eventual purchaser of the firearms. There was no deceit, fraud or trickery used to suggest that the Applicant would otherwise benefit from these transactions. There were also no promises of any form of advantage for the Applicant in consideration of his immigration issues.

[164] This can also be seen in the Police Agent’s lack of interest when offered drugs or other contraband. It was the Applicant who would propose these different transactions, but the Police Agent was consistent in bringing their exchanges back to the firearms transactions.

[165] Another example of the Police Agent distancing himself from other possible inducements were the discussions about Stephane Gravel against whom the Applicant sought revenge for being ripped off from a marijuana production business. When the subject was raised by the Applicant, the Police Agent would not engage him or give him any hope for assistance in his quest for revenge. To the contrary, the Police Agent would discourage the Applicant from seeking revenge and bring him back to the firearms transactions.

[166] The Police Agent did not try to induce the Applicant with the hope of other benefits if he participated in the firearms transactions and as such there were no inappropriate incentives offered by the OPP.

The timing of the police conduct

[167] The issue of the Applicant’s ongoing involvement in firearms trafficking is unclear. The Police Agent claimed that the Applicant provided him with information about gun trafficking that demonstrated his knowledge of firearms and pricing while at the Val-Tétreau jail.

[168] Also, the evidence is that Mr. Kenemy did not question the Police Agent’s desire to get in contact with the Applicant. The information exchanged between Mr. Kenemy and the Police agent did not revolve around questioning why the Police Agent was trying to communicate with the Applicant.

[169] This evidence is contrasted with the testimony of the Applicant that no such discussions took place at the Val-Tétreau jail. Also, there is the fact that, despite all the OPP’s surveillance of the Applicant, there was no suggestion that he was actively involved in other firearms trafficking offences.

[170] The Court has also considered the fact that the surveillance evidence of the Applicant did not suggest that he was otherwise involved in criminality. I disagree with the Crown that because he had multiple cell phones, he was involved in other criminal transactions. I am of the view that the information given to the Police Agent about his other criminal involvement is unreliable and certainly not corroborated by other surveillance evidence. I accept that many of the statements made by the Applicant represented boasting although I reject that the Applicant would have only secured the firearms to appease the Police Agent due to fear.

[171] In the end, I am persuaded by the evidence that the Police Agent would have likely identified the Applicant as able to obtain firearms for a reason and that this was based on the information that he received from the Applicant at Val-Tétreau. This is supported by the fact that on their first meeting, the Applicant was able to immediately access an AK-47 for sale and then access the remaining firearms. These facts make it more likely that the Applicant was involved in ongoing criminal activity however certainly not to the level that the Applicant wanted the Police Agent to believe.

Exploitation of human characteristics

[172] The issue of the exploitation of emotions was not significantly explored by the Applicant. However, the Applicant’s testimony did focus on the issue of fear and how he was constantly trying to appease the Police Agent.

[173] The problem with this suggestion is that there is no link between the Applicant’s testimony and his interactions with the Police Agent. I come to this conclusion for the following reasons:

a. In the beginning, the Applicant is ignoring the Police Agent and not returning his text messages. Further, he tells Mr. Kenemy that he does not want to meet the Police Agent because he is too “hot”, and this is clearly a reference to a concern about getting caught and not an unwillingness to participate. Although this information is hearsay from Mr. Kenemy, it is consistent with the position of the Applicant who did not want to communicate with the Police Agent at the time of Mr. Kenemy’s involvement. There was no dispute by the parties that Mr. Kenemy would have said that the Police Agent was too hot because of his connection to bikers;

b. Next, there is nothing in the Applicant’s communications that would suggest any fear of the Police Agent. The Applicant will joke with the Police Agent, make fun of him and criticize him at times. He dictates the frequency of their contacts, the location of their meetings and the type of firearms being sold.

c. He fails to deliver on the promised firearms and is not apologetic for his failures;

d. Contrary to his evidence, the Applicant encourages ongoing contacts with the Police Agent, is willing to become indebted to him and tries to get him to pay for drugs for which he cannot deliver.

[174] Simply put, the Applicant had no fear of the Police Agent and the Applicant’s suggestion that the Police Agent’s conduct at Val-Tétreau pushed him to commit the offences to appease the Police Agent finds no support in the manner in which the Applicant dealt with the Police Agent in all their communications.

Exploitation

[175] There is no dispute that the Applicant’s statelessness places him in a particular position of vulnerability vis-à-vis the state. The evidence of Dr. Van Waas was not significantly challenged and the consequences of being stateless can have a profound effect on an individual. I have no doubt that it had an effect on the Applicant at many different levels.

[176] However, in cross-examination, the evidence of statelessness revealed that the Applicant still maintained several benefits that might not place him at the most severe end of the statelessness spectrum. He had a driver’s licence, employment (albeit in his brother’s name), bank accounts, bank cards, pre-paid credit cards, access to a vehicle and a secure residence in his brother’s house.

[177] The Applicant testified that he did not go to police as he felt backed into a corner. He knew he would be treated differently by authorities based on his experience with a criminal record and as a stateless person. It was safer option for him to acquiesce to the Police Agent’s demands and hope it would end in short order.

[178] The challenge also lies with creating a link between the Applicant’s status as a stateless person and his criminal actions during the Project. It is acknowledged that the Applicant’s immigration status caused for him to be detained following his release from prison at the end of 2012 and then limited his mobility and his ability to integrate with society. The profound effects of being stateless were somewhat mitigated by the Applicant’s ability to function within society. However, these features of the Applicant’s life do not significantly diminish the impact of being stateless and how this status can impact an individual’s behaviour and at times push the person towards a life of crime. This evidence is accepted by the Court.

[179] However, what is missing in the present circumstance is the action by the OPP or the Police Agent to exploit the Applicant’s vulnerabilities as a stateless person. There is no evidence of any action by the OPP which sought to take advantage of the Applicant’s immigration status. To the contrary, the evidence demonstrates that it was a non-factor. There is nothing that was done to exploit the Applicant’s status other than the use of the knowledge of his obligation to report to the CBSA as a mechanism for locating the Applicant prior to the commencement of the Project.

[180] Otherwise, there was nothing in the Project that would suggest that the OPP exploited any of the Applicant’s particular vulnerabilities. Although he is stateless, the investigation strictly dealt with the Applicant as a potential source for trafficking in firearms and his involvement was not the result of any exploitation by the OPP. The Applicant’s participation was his own doing. He may have been particularly susceptible to turn to a life of crime as a result of these circumstances, and this may be a factor to consider as part of a sentencing, but it was not something that was exploited or that would be identified as a trial fairness issue.

Proportionality

[181] This criterion requires that the Court consider if the police involvement is disproportionate to the crime committed by the Applicant insofar as it causes more harm that it seeks to catch: see Mack, at p. 963.

[182] On the issue of proportionality, the Applicant cites R. v. Nuttall, 2018 BCCA 479, 368 C.C.C. (3d) 1, at para. 252, in support of the disproportionate efforts and attempts to direct an accused to commit a crime and how parallels can be found in the present case.

[183] I disagree. In Nuttall, the police were giving repeated instructions on how to craft a plan and made efforts to set aside any obstacles. This cannot be compared to a few instances where the Police Agent was attempting to communicate with the Applicant through Mr. Kenemy or by way of the initial text messages. There is no evidence to suggest that the police conduct transformed someone who was unwilling to commit a crime into someone who was readily willing to commit not only firearms transactions but also many other proposed crimes.

[184] In the present circumstances, the efforts made by the police amounted to a few text messages for a meeting. Once that first meeting took place, the Applicant was the driving force behind the firearms transactions by making all sorts of promises for future transactions. All that the police had to do was direct the Police Agent to reach out to the Applicant who determined when he was ready to proceed with a transaction. There is clearly no issue of disproportionality in the actions of the police.

Threats

[185] In all the intercepted communications, there is no evidence of any threats. When considering the text messages presented at trial, the Police Agent appears friendly, does not pressure the Applicant and accepts the delays in providing the promised firearms.

[186] While the Applicant relies on the Police Agent’s threatening behaviour while at the Val-Tétreau jail, there is no evidentiary link in that behaviour to any subsequent event. While in jail and subsequent to the alleged threatening behaviour, the Applicant and the Police Agent were friendly to each other. Their communications did not include any underlying threats or ultimatums. The Applicant was never hesitant to joke with the Police Agent and even to suggest at times that the Police Agent was “losing it”. This is not behaviour by someone living under a veil of either explicit or implicit threats.

[187] Further, the Applicant claimed that there were several other communications between him and the Police Agent that were not part of the evidence. There is no suggestion of any threats in those other alleged communications with the exception of statements attributed to Mr. Kenemy. The OPP took steps to ensure that no other inappropriate contacts were taking place when they obtained the Police Agent’s personal phone with his consent and downloaded the content to review it. This was also done with the work phone on six occasions. As such, there is no forensic evidence of communications that would support the Applicant’s version that threats were made off-line.

[188] While the Applicant did raise the issue of threats through Mr. Kenemy during the initial communications, the evidence is that the Applicant would have waited from March until June of 2017 to finally respond to the Police Agent. Clearly, he was not threatened to respond quickly.

[189] In addition, the Applicant indicated that after the first transaction on June 30, 2017, he was hoping that he would never have to deal with the Police Agent again. I reject this evidence as the text messages show that on July 4, 2017, the Applicant is proposing the location of the next transaction. Also, on that date, it is the Applicant who is making calls to the Police Agent throughout the day. There was no attempt to bring an end to their dealings. Clearly, the Applicant was prepared to move on to the next transaction.

[190] The only time that there was any notion of frustration by the Police Agent came on August 30, 2017 and in the final days of the Project when the Police Agent complained that the Applicant was not delivering on his promises and was not providing quality firearms. The Applicant’s responses were telling. On August 30, 2017, he responded to the Police Agent that he would refund the money that was advanced, and they would go their separate ways. On October 6, 2017, the Applicant simply indicated that he would contact the Police Agent when he has other firearms to offer. These exchanges do not reveal any indicia of threats or potential harm to third parties. The Applicant was unaffected by the frustration.

[191] Finally, there is the ongoing attempts by the Applicant to communicate with the Police Agent after October 6, 2017. The Applicant is frequently calling and reaching out to the Police Agent to arrange for ongoing criminality. These actions are inconsistent with someone who wanted to have nothing to do with the Police Agent.

Other constitutional values

[192] The Applicant has not alleged that the police conduct was directed at undermining other constitutional values, such as legitimate exercises of freedom of thought, belief, opinion or association.

[193] An example of undermining constitutional values is also seen in Nuttall where the police isolated the accused from getting outside religious guidance and propelled the accused toward a more radical conception of jihad: Nuttall, at para. 251.

[194] The Applicant has not alleged any such action by the police and the evidentiary record does not suggest any such police action.

Conclusion

[195] My assessment of the Mack factors is evident. While the Applicant has demonstrated that he did have some vulnerabilities vis-à-vis the state in terms of his statelessness, the police took no steps to take advantage of this vulnerability. With the exception of being known generally by the officers involved and by the Police Agent, his being stateless was not made an issue and it was not used to induce the Applicant to participate in the offences. There is also no issue of the usual type of vulnerabilities such as susceptibility to the emotions of compassion, sympathy and friendship. Also, there were no vulnerabilities caused by issues such as mental illness or substance addictions.

[196] I conclude that all of the Mack factors favour a conclusion that there was no entrapment. It is clear that the average person, with strengths and weaknesses, taking into account the vulnerabilities of the Applicant, would certainly not have acquiesced to the Police Agent’s advances. At a minimum, the average person would have made at least an attempt to decline to assist the Police Agent. The Applicant has failed to meet his onus to demonstrate that this is one of the clearest cases where the administration of justice would be brought into disrepute if the Applicant’s convictions stand. Also, I am unable to find any other basis upon which entrapment can be made out.

[197] Consequently, Mr. Budlakoti’s application for a stay of proceedings based on entrapment is dismissed.

Section 7 – Abuse of Process

[198] The general test when assessing a claim for abuse of process was set out by the Supreme Court of Canada in R. v. Jewitt:[^7]

I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, supra, and affirm that “there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings”. I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only in the “clearest of cases”.

[199] As stated by the Supreme Court of Canada in R. v. Campbell,[^8] where entrapment is not made out, an accused can only succeed on the more general ground of abuse of process if he can demonstrate a serious violation of the community’s sense of fair play and decency. It must also be disproportionate to the societal interest in the effective prosecution of criminal cases.

[200] The Supreme Court of Canada also considered the doctrine of abuse of process in R. v. O’Connor[^9] where it confirmed that at the Charter breach stage, the Applicant must establish the breach of s. 7 of the Charter on a balance of probabilities. However, a stay of proceedings does not automatically follow. The Court must then engage in an analysis under s. 24(1) of the Charter to determine if it is one of the clearest of cases where a stay should issue.

[201] In R. v. Babos,[^10] the Supreme Court further defined the required analysis where it identified two categories of cases: (1) those in which the state conduct compromises the fairness of an accused’s trial (the “main category”); and (2) those in which the state conduct undermines the integrity of the judicial process (the “residual category”). The Applicant argues that the residual category is engaged in these proceedings.

[202] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

i. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

ii. There must be no alternative remedy capable of redressing the prejudice; and

iii. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”. [Citations omitted.][^11]

Analysis – Section 7

[203] The Applicant’s main argument in respect of s. 7 of the Charter is that when the circumstances are considered as a whole, the undercover operation involved police conduct that would shock the community. The Applicant relies principally on the following factors:

a. That the Police Agent presented an unmitigated risk for violence; and

b. That the OPP allowed the transactions to take place in commercial parking lots and residential areas with inadequate surveillance and monitoring, leaving the public exposed to an unacceptable risk.

The Police Agent

[204] The Applicant’s position must be considered against the general statements of the Supreme Court of Canada in R. v. Campbell where the Court stated that one must balance the need to combat criminal offences with the concerns about law enforcement techniques that involve conduct that citizens would not tolerate: at para. 43. The Court also highlighted the well-known passage that “[i]f the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police”: at para. 15.

[205] It is in this context that the Court must evaluate the use of the Police Agent in this Project. There is no doubt that given the Police Agent’s history of violence and crime, he was the last person that the Applicant would have suspected to be acting as a police agent. It is likely that for this reason the Applicant was concerned about dealing with the Police Agent and thought that he was “too hot”, as the Applicant was concerned that he was possibly under the surveillance of the police.

[206] The question remains whether the Police Agent’s history, mental health issues and propensity for violence were simply too significant to allow him to assume the role of a Police Agent. This must be considered in light of the information provided to the Police Agent by the Applicant while they were both incarcerated at the Val-Tétreau jail. I accept the Police Agent’s evidence that the Applicant would have presented himself as a person knowledgeable about firearms and having access to brand new handguns, AK-47s, AR-15s, Glocks, the Punisher-style firearms and silencers. I come to this conclusion for three reasons.

[207] Firstly, the information obtained by the Police Agent about the Applicant formed the basis for the Applicant’s becoming one of the main targets of Project Landslide. If the Applicant’s evidence on this point were accepted, there would be little reason to identify the Applicant as a target to police given that the Police Agent was trying to qualify and be signed on for the Project and would have been motivated to present legitimate targets. Secondly, the type of conversation and promises made by the Applicant at the Val-Tétreau jail is consistent with how the Applicant communicated with the Police Agent: always talking, bragging and promising to deliver various illicit objects. Thirdly, this is exactly what the Applicant did. He delivered on the transfer of an AK-47, an AR-15 and an imitation Glock. While these were not brand new handguns, he did deliver in large part on the items that the Police Agent said he offered while at the Val-Tétreau jail. This information obtained while at the Val-Tétreau jail set the stage for the Police Agent’s involvement with the Applicant.

[208] Consequently, the use of the Police Agent must be considered in light of the information provided to him by the Applicant and how he was, in the beginning, a logical candidate to become a police agent. The Police Agent was the link to the Applicant and the Project’s objectives of targeting firearms trafficking in Eastern Ontario.

[209] As for the use of a person like the Police Agent, I have considered the following:

a. The Police Agent’s criminal past is not unlike other police agents used in similar projects: see e.g., R. v. Lising, 2010 BCCA 390, 337 C.C.C. (3d) 91;

b. As set out in my previous rulings in the case, I am of the view that the OPP’s screening process to qualify the police agent forms part of the statutory functions of the police forces across Canada. The Police Agent was firstly used as an informant. The reliability of his information and his performance as an informant led to his being considered as a police agent. He was then assessed by a qualified psychiatrist and deemed suitable. This led to the signing of the SPA after undergoing a Vetrovec interview process. All of this required the ongoing assessment of the OPP as to the suitability of the Police Agent, and I am satisfied on the totality of the evidence that this process was followed.

c. However, in cross-examination, the Police Agent admitted that he failed to give his handlers all the details of his past involvement in criminality. Having considered the cross-examination of the Police Agent, I agree with the conclusion of the OPP that the Police Agent was in large part honest during the Vetrovec interview process.

d. He was also disrespectful during the cross-examination despite being advised by the Court that he was being asked proper questions. At times, he was belligerent to Defence counsel, borderline threatening and had to be cautioned by the Court. He stormed out the courtroom at times and when faced with inconsistency, he responded, “I lied, yes. I am a liar.”

e. The Police Agent’s testimony in court was indicative of the realities of his life and his involvement in this Project. While in examination-in-chief, he was calm and recounted his evidence by answering the questions directed to him by the Crown. This mirrored his conduct during the Project whereby he followed the direction of his handlers, followed the rules of the Project and the terms of the SPA and performed his duties as a Police Agent without apparent incident. However, when challenged in cross-examination, he became belligerent, defensive and aggressive towards Defence counsel. This was similar to the evidence of his behaviour when confronted in his day-to-day life. He would be quick to resort to violence and would justify his use of violence in one instance because “the police put their hands on me.” As he admitted in his testimony, the Police Agent still has difficulties avoiding lashing out against people physically and he requires help from a psychiatrist and his doctor. While he disagreed that he was still a violent person, the evidence presented at trial demonstrated that he still is.

f. From a monitoring perspective, I am challenged to see what the OPP could have done better. The OPP identified handlers who worked with the Police Agent on a day-to-day basis. They treated the Police Agent with respect and gained his trust. The handlers got to know him personally. This allowed them to monitor his apparent physical and mental health and identify when he was not doing well. On this point, I accept the evidence of the police handlers that they assessed how he was doing on an ongoing basis and would not have deployed the Police Agent if he seemed unwell. Clearly, they are not physicians, but they were still in a position to assess how he was doing generally. I also accept that the OPP and particularly the handlers were alive to the Police Agent’s frailties. This is supported by the actions of the OPP at the end of the investigation. While the supervisors of the Project wanted to extend it, the Police Agent objected, and his deteriorating health was a factor in bringing the Project to an end.

g. From a surveillance perspective, the manner in which the Police Agent was surveilled was less than perfect, but I am certainly not of the view that the process set up for surveillance would be anything close to being shocking to the community. The evidence of how the Police Agent was prepared for deployment with the use of a dry run, that his vehicle was searched before and after deployment, the process to brief and debrief him, the use of surveillance teams to follow him to and from a deployment, the use of surveillance during the transactions and the enhanced surveillance through the s. 184.2 authorization are all factors that allow me to conclude that the manner in which the Police Agent was surveilled would not shock the community.

h. I pause at this point to stress that the surveillance was far from perfect. On July 4, 2017, the Police Agent purchased an AR-15 from the Applicant and placed it in his trunk. He then left his vehicle unattended and went to Giant Tiger without consulting with his handlers; the surveillance team lost contact with him at a crucial time when he was in possession of the firearm. This is clearly an error in the execution of surveillance which opened the door to an unnecessary risk. It does not, however, make the entire surveillance plan deficient. It is also important to note that this transpired prior to the s. 184.2 authorization following which the surveillance became much more effective.

i. However, there is one shortcoming in the manner in which surveillance was structured. The surveillance team was not properly briefed on the Police Agent, his violent past, the fact that he historically had a short fuse and his mental health issues. This is crucial information that was required to be provided to the surveillance team members so that they could be better informed on the potential risks to the public, to the targets and to the Police Agent himself. This shortcoming was mitigated by the s. 184.2 authorization which allowed the handlers to monitor what was happening inside the Police Agent’s vehicle and to assess if the dealings between the Police Agent and the Applicant became conflictual. However, where a police agent has the type of aggressive nature as in this case, it is difficult to image how this information would not be vital to the members of the surveillance team.

j. The evidence of the members of the surveillance unit was that given that these were transactions involving firearms purchases, the surveillance team would have been at the highest level of the threat matrix, requiring the operation to have the highest level of preparedness. Regardless, it was not disputed that the information about the Police Agent would have been helpful to allow for a full assessment of the threat matrix.

[210] In consideration of the totality of the evidence, and having specifically considered the Police Agent’s mental health, his testimony in court and the shortcomings in surveillance information, I conclude that the use of the Police Agent in this Project is not something that would shock the community and violate its sense of fair play and decency. The Police Agent was selected because of the unlikelihood that he would be a police agent given his past. He was brought into the Project as an informant and assessed and deployed in a measured manner with proper monitoring and adequate supervision. The handlers were alive to the Police Agent’s mental health and how he was doing during the Project. His deployments were adjusted to account for his health and he was properly managed.

[211] As was evident from the surveillance evidence and the evidence of his handlers, the OPP were successful in maintaining proper relationships with the Police Agent. They monitored him on a daily basis and performed an ongoing assessment of his capacity to perform his duties as a police agent. While under OPP direction, the Police Agent operated within a controlled and regimented environment that left little place for outbursts and violent behaviour. This was the product of the Project as operated by the OPP.

Location of deployments

[212] With respect to the locations where the transactions transpired, the Applicant challenges the use of commercial parking lots and residential areas where families and children could be present. The first observation is that it is the Applicant who selected the areas where the transactions took place. At times, the Police Agent would suggest a location where they had met before, but for the firearms transfers, the Applicant dictated the locations. This is clearly a delicate issue that involves different factors:

a. The police must be conscious of having transactions take place in locations where the target of the investigation is more comfortable. Requiring the target to change locations to areas that are preferred by police or where better surveillance is present can impact the willingness of the target to go through with the transactions;

b. The police must balance need for surveillance with the use of public areas. While it may seem preferable to have a firearms transaction occur on an isolated country road, away from the public, this must be balanced by the need to provide surveillance and protection to those involved. The evidence of the surveillance team members was that surveillance is provided to ensure the security not only of the Police Agent but also of the target and members of the public. These objectives of surveillance cannot all be met if the location of the transaction is an isolated area, where surveillance would put the Project at risk;

c. The risk to the public of having a firearms transaction transpire in a commercial parking lot or in a residential area forms part of the balancing that police must do in conducting an investigation. This is part of the mandate of the police when conducting such projects. The knowledge and relationships that they have with the Police Agent, his relationship with the Applicant, their experience in assessing his mental health during deployments and the ability to have a surveillance team member in proximity to respond in the case of counter-surveillance or conflict all form part of the mandate given to the police when they are authorized to proceed with these types of projects which target firearms trafficking. Part of the police mandate is to weigh the benefits of investigating firearms trafficking and the potential risks of dealing with someone like the Police Agent.

[213] I agree with the observations of the Court of Appeal for British Columbia in R. v. Lising, where the Court noted that in an ideal situation, the police would maintain complete control over its agents and control all of their criminal actions.[^12] While the issue of criminal actions by the Police Agent does not apply here, there is no doubt that it would be impossible to fully monitor every step or statement made by the Police Agent in the process of dealing with the Applicant. Such a standard is impossible to meet, and I am of the view that the level of monitoring in these transactions would not shock the community when considering the need to fight the trafficking of firearms.

[214] However, this does not leave the police with carte blanche to do whatever they like under the guise of investigating serious crime. The police must balance these limits and I am of the view that the evidence in this trial demonstrates that this was done and that the risk to the public was measured and mitigated. While all risk could not be eliminated, society does not put the police to that standard. This Project reflects that the OPP balanced the risks inherent to the Project and the use of the Police Agent with the need to protect the public from crime.

[215] In the end, I disagree with the Applicant that the police surveillance in this case was woefully inadequate and that it left the public exposed to a level of risk that should have never been authorized. To the contrary, I believe that the Project had a number of safeguards along the way that were measured and that allowed for the OPP to assess the risk of deploying the Police Agent in these locations. At the time of these transactions, the OPP had been working with the Police Agent in some capacity for a reasonable period of time that allowed them to assess his capacity to perform within the directions given to him. They built relationships with him that allowed them to monitor his health and make operational decisions as the Project moved forward.

[216] On the specific facts of this Project, I conclude that the Applicant has failed to meet his onus and that the operation did not amount to an abuse of process and that it remained within the confines of what the courts and the public expect will happen as part of the police mandate to combat the trafficking of firearms.

[217] As a result of my conclusion on both the entrapment and s. 7 application, there is no need to deal with the request for a stay of proceedings.

Conclusion

[218] Consequently, the applications for a stay of proceedings based on entrapment and breach of s. 7 of the Charter are dismissed.

Justice Marc R. Labrosse

Released: April 29, 2021

COURT FILE NO.: 17-0113

DATE: 2021/04/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

– and –

DEEPAN BUDLAKOTI Applicant

REASONS FOR DECISION ON ENTRAPMENT and s.7 charter application

Justice Marc R. Labrosse

Released: April 29, 2021

[^1]: R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903. [^2]: Mack, at pp. 964-965. [^3]: See e.g., Mack, at pp. 975-977. [^4]: 2020 SCC 11, at paras. 15-17. [^5]: 2020 ONCA 179, 387 C.C.C. (3d) 200, at para. 63. [^6]: R. v. Giroux, 2001 CarswellOnt 4685 (S.C.), at para. 7. [^7]: 1985 47 (SCC), [1985] 2 S.C.R. 128, at pp. 136-137. [^8]: 1999 676 (SCC), [1999] 1 S.C.R. 565, at para. 22. [^9]: 1995 51 (SCC), [1995] 4 S.C.R. 411, at paras. 68-69. [^10]: 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. [^11]: Babos, at para. 32. [^12]: Lising, at para. 79.