COURT FILE NO.: CR-19-02612-0000
DATE: 20211110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
RICHARD SENIOR
Applicant
Peter Scrutton and Mabel Lai, for the Crown
John Struthers and Ashli Pinnock, for the Defendant
HEARD: June 21, 22, 23, September 10, 2021
RULING ON ENTRAPMENT aPPLICATION
christie J.
Overview
[1] The Applicant, Richard Senior, a Constable with the York Regional Police (“YRP”), at the relevant time assigned to the 5 District Community Oriented Response Unit (“5COR”) in Markham, was charged with fourteen separate offences, including theft under $5000, utter forged document (x2), unauthorized use of a computer (x2), breach of trust (x3), possess firearm obtained by theft, possess weapon for a dangerous purpose, attempted robbery, trafficking in a Schedule I substance, and trafficking in a Schedule IV substance (x2). The charges were in relation to allegations stemming from a YRP suspected police corruption investigation, known as Project Tadeu, which involved the deployment of two undercover officers, UC1 and UC2 (operating under the pseudonym Henry Wong). By the relevant time frame, Cst. Senior had been a police officer for approximately 15 years, with a focus on traffic enforcement for much of his career.
[2] Following a 10-day judge alone trial, for lengthy written reasons provided on April 21, 2021, published as R. v. Senior, 2021 ONSC 2729, this court found as follows:
a. Count 1 – theft – guilty, but only as it relates to the $300 payment to the Sherry Wafer source;
b. Count 2 – utter forged document – guilty;
c. Count 3 – utter forged documents – guilty, but only as it relates to the payment form attributed to David Broadhead;
d. Count 4 – unauthorized use of computer – guilty, but only as it relates to Henry Wong;
e. Count 5 – breach of trust – guilty, but only as it relates to Henry Wong;
f. Count 6 – possessing a firearm obtained by crime – guilty, both at the time of placing it in the van and afterward;
g. Count 7 – weapons dangerous – guilty;
h. Count 8 – attempted robbery – not guilty;
i. Count 9 – traffic cocaine by offer – guilty, as it relates to George Papoutsos and Henry Wong only;
j. Count 10 – breach of trust – not guilty;
k. Count 11 – trafficking (Timerbulatov) – not guilty;
l. Count 12 – trafficking (UC1) – guilty;
m. Count 13 – unauthorized use of computer – guilty, but only as it relates to Azeez /Hatzes, Fraser/Mansour, and Simona Marra; and
n. Count 14 – breach of trust –guilty, but only as it relates to Azeez / Hatzes and Fraser/Mansour
[3] Cst. Senior has now brought an entrapment application in relation to counts 1-7, 9 and 12.
[4] Given that this entrapment application was anticipated as a possibility at the time of the trial, much of the cross-examination of UC1 and UC2 at trial was not relevant to Cst. Senior’s guilt or innocence, but rather focused on this application. It is agreed that the evidence from the trial can be applied to this application.
[5] In addition, on June 21-23, 2021, this Court heard evidence from Detective Sergeant Ahmad Salhia (“D/S Salhia”), then Detective in the Major Projects Unit, who was the lead investigator for Project Tadeu.
[6] On this application, the Applicant submitted that, on a balance of probabilities, the actions of the YRP (specifically UC1, UC2 (Henry Wong), and D/S Salhia), during the Project Tadeu investigation, constituted improper “virtue testing” amounting to entrapment. The Applicant conceded that, as per the first branch of the test in R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, the police had reasonable suspicion that Cst. Senior was committing the offences of breach of trust and unauthorized use of a computer early in the investigation. However, the Applicant submitted that the police did not have reasonable suspicion that Cst. Senior was engaged in the particular criminal activity involved in counts 1-3, 6, 7, 9 and 12, and any suspicion that Cst. Senior was committing these offences was inextricably linked to the influence that the undercover operators had over Cst. Senior and the directions they were given by the investigative team. Consequently, as it relates to counts 1-7, 9 and 12, the police acted beyond the bounds of propriety, induced the commission of the offences, and, therefore, the only appropriate remedy is a stay of proceedings in relation to these counts.
[7] Further, the Applicant submitted that the police conduct during the Project Tadeu investigation was so egregious that it justifies the exercise of this Court’s residual discretion in ordering a stay of proceedings for abuse of process in accordance with the test set out by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16.
[8] The Respondent submitted that, as the scenario with UC2 played out, the everyday interactions between UC1 and Cst. Senior and the information gathered via the authorized Part VI revealed new and unexpected ways in which Cst. Senior was abusing his position as a police officer. The Respondent submitted that the investigators suspicions and beliefs, as well as their instructions to UC1, evolved in reasonable and justifiable response to these unexpected developments. On September 12, 2018, upon Cst. Senior sharing the licence plate information with Henry Wong, the investigators believed their work was over and took steps to disengage. However, before any arrest could be made, the Respondent argued that on September 17, 2018, Cst. Senior proposed to UC1 that they rob a drug warehouse. At this point, investigators directed UC1 to continue the relationship, in order to assess whether Cst. Senior was serious, and to see how far the plans would progress before a takedown was necessary.
[9] The Respondent submitted that the intercepted communications and evidence gathered demonstrates the initiative, determination, and volitional choice of Cst. Senior, a 15-year veteran of the police force, to engage in the criminality for which he was found guilty. The Respondent argued that Cst. Senior has failed to meet his onus to demonstrate that he was entrapped, or that the investigative conduct, more generally, constituted an abuse of process, therefore, the application should be dismissed.
The Law of Entrapment
The Rationale
[10] Entrapment is not a true defence. It is a type of abuse of process. It protects accused persons from criminal sanction where they have been unfairly led by the state into committing offences. In R. v. Ghotra, 2020 ONCA 373 at para. 16, the court stated:
[16] The defence of entrapment flows from the doctrine of abuse of process. It is not a substantive defence to allegations of criminal wrongdoing, but instead allows for a conviction to be stayed where the investigative conduct of the police was exploitative or corrupting...
[11] Where entrapment is raised, the question is not one of guilt or innocence, but rather whether the accused’s guilt was discovered in a way that offends the principles of decency and fair play. Accordingly, entrapment is raised after a finding of guilt, but before a conviction has been entered. See R. v. Pearson, 1998 776 (SCC), [1998] 3 S.C.R. 620, para. 10-11.
[12] In R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, a seminal case on the issue of entrapment, the court outlined some of the principles supporting this doctrine. The court stated in part as follows:
[17] Obviously the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law. This has long been recognized by the common law (see R. Donnelly, "Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs" (1951), 60 Yale L.J. 1091, at pp. 1091‑92). Laskin C.J., in Kirzner, supra, noted at p. 493 that with respect to consensual crimes, the police employ a number of people and techniques:
They may, for example, use a spy, either a policeman or another person, to obtain information about a consensual offence by infiltration; they may make arrangements with informers who may be parties to offences on which they report to the police to enable the other parties to be apprehended; or the police may use decoys or themselves act under cover to provide others with the opportunity to commit a consensual offence or to encourage its commission. Going one step farther, the police may use members of their force or other persons to instigate the commission of an offence, planning and designing it ab initio to ensnare others.
[18] There is a crucial distinction, one which is not easy to draw, however, between the police or their agents‑‑acting on reasonable suspicion or in the course of a bona fide inquiry‑‑providing an opportunity to a person to commit a crime, and the state actually creating a crime for the purpose of prosecution. The former is completely acceptable as is police conduct that is directed only at obtaining evidence of an offence when committed (see Amato, supra, per Estey J., at p. 446). The concern is rather with law enforcement techniques that involve conduct that the citizenry cannot tolerate. In many cases the particular facts may constitute a classic example of what may be referred to as "entrapment" which has been described by an American judge as "the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer" (Sorrells v. United States, 287 U.S. 435 (1932), at p. 454, per Roberts J., cited by Dickson C.J. in Jewitt, supra, at p. 145).
[76] It is essential to identify why we do not accept police strategy that amounts to entrapment. There could be any number of reasons underlying what is perhaps an intuitive reaction against such law enforcement techniques but the following are, in my view, predominant. One reason is that the state does not have unlimited power to intrude into our personal lives or to randomly test the virtue of individuals. Another is the concern that entrapment techniques may result in the commission of crimes by people who would not otherwise have become involved in criminal conduct. There is perhaps a sense that the police should not themselves commit crimes or engage in unlawful activity solely for the purpose of entrapping others, as this seems to militate against the principle of the rule of law. We may feel that the manufacture of crime is not an appropriate use of the police power. It can be argued as well that people are already subjected to sufficient pressure to turn away from temptation and conduct themselves in a manner that conforms to ideals of morality; little is to be gained by adding to these existing burdens. Ultimately, we may be saying that there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions. These reasons and others support the view that there is a societal interest in limiting the use of entrapment techniques by the state.
[77] The competing social interest is in the repression of criminal activity. Further, our dependence on the police to actively protect us from the immense social and personal cost of crime must be acknowledged. There will be differing views as to the appropriate balance between the concepts of fairness and justice and the need for protection from crime but it is my opinion that it is universally recognized that some balance is absolutely essential to our conception of civilized society. In deciding where the balance lies in any given case it is necessary to recall the key elements of our model of fairness and justice, as this is the only manner in which we can judge the legitimacy of a particular law enforcement technique.
[78] It must be stressed, however, that the central issue is not the power of a court to discipline police or prosecutorial conduct but, as stated by Estey J. in Amato, supra, at p. 461: "the avoidance of the improper invocation by the state of the judicial process and its powers". In the entrapment context, the court's sense of justice is offended by the spectacle of an accused being convicted of an offence which is the work of the state (Amato, supra, at p. 447). The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court's disapproval of the state's conduct. The issuance of the stay obviously benefits the accused but the Court is primarily concerned with a larger issue: the maintenance of public confidence in the legal and judicial process. In this way, the benefit to the accused is really a derivative one. We should affirm the decision of Estey J. in Amato, supra, that the basis upon which entrapment is recognized lies in the need to preserve the purity of administration of justice.
The court made it clear that a proper assessment of whether entrapment has or has not occurred can only be done by considering the totality of the circumstances.
[13] A few years later, in R. v. Barnes, 1991 84 (SCC), [1991] 1 S.C.R. 449, the court added further explanation to the rationale behind the entrapment doctrine and stated as follows:
[14] …The defence of entrapment is based on the notion that limits should be imposed on the ability of the police to participate in the commission of an offence. As a general rule, it is expected in our society that the police will direct their attention towards uncovering criminal activity that occurs without their involvement.
[14] The focus in determining entrapment is on the conduct of state-actors as opposed to on the actions or state of mind of the accused. In R. v. Mack, the court stated:
[128] Since I am of the view that the doctrine of entrapment is not dependant upon culpability, the focus should not be on the effect of the police conduct on the accused's state of mind. Instead, it is my opinion that as far as possible an objective assessment of the conduct of the police and their agents is required. The predisposition, or the past, present or suspected criminal activity of the accused, is relevant only as a part of the determination of whether the provision of an opportunity by the authorities to the accused to commit the offence was justifiable. Further, there must be sufficient connection between the past conduct of the accused and the provision of an opportunity, since otherwise the police suspicion will not be reasonable. While predisposition of the accused is, though not conclusive, of some relevance in assessing the initial approach by the police of a person with the offer of an opportunity to commit an offence, it is never relevant as regards whether they went beyond an offer, since that is to be assessed with regard to what the average non-predisposed person would have done.
The Test
[15] The onus to demonstrate that entrapment has occurred is on the accused to establish on a balance of probabilities.
[16] The Supreme Court of Canada in R. v. Mack, para. 126, and in R. v. Barnes, at para. 15, established that entrapment will arise in one of two distinct ways.
a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry (opportunity-based); or
b) although having such 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 (inducement-based)
[17] In R. v. Barnes, the court clarified the first branch as follows:
[24] Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:
(a) the person is already engaged in the particular criminal activity, or
(b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.
[18] The two branches of entrapment, as set out in Mack and Barnes, were recently reaffirmed by the Supreme Court of Canada in R. v. Ahmad, 2020 SCC 11, para. 15. The court further clarified the first branch, or opportunity-based entrapment, as follows:
[19] …On the first branch in Mack, at issue in these appeals, police may present an opportunity to commit a crime only upon forming reasonable suspicion that either: (1) a specific person is engaged in criminal activity; or (2) people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry (Mack, at pp. 956 and 959; confirmed in R. v. Barnes, 1991 84 (SCC), [1991] 1 S.C.R. 449, at p. 463).
The Court made it clear that a bona fide inquiry is not a separate category of entrapment:
[20] …A bona fide investigation is not a separate and freestanding way for police to entrap an individual, but a means of expressing the threshold of reasonable suspicion in a location. The offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or a combination of both.
[19] Cst. Senior has alleged both opportunity-based and inducement-based entrapment.
[20] The appropriate remedy for a finding of entrapment is a stay of proceedings. In R. v. Darnley, 2020 ONCA 179, the court stated:
[76] The defence of entrapment can only be established in the clearest of cases: Mack, at p. 976. Because there might not have been an offence to prosecute without the entrapment, the conviction for that crime is inappropriate. For this reason, Lamer C.J. said unequivocally, for the court in Mack, at p. 967, “the proper remedy is a stay of proceedings”. The trial judge was correct in recognizing this.
[21] In this case, the parties agree that the appropriate remedy, if entrapment is established, would be a stay of proceedings.
Reasonable Suspicion
[22] The starting point for determining whether entrapment occurred on the first branch of the Mack test requires an assessment of whether reasonable suspicion existed at the relevant time. Since this case is focused on suspicion in relation to the individual rather than a location, this court will focus its analysis on that issue.
[23] The Supreme Court of Canada has held that reasonable suspicion needs to be based on “extrinsic evidence”. The ability to articulate reasons for suspicion, subjectively held by an officer, is not enough on its own to take the subjective suspicion out of the hunch range. In R v. Barnes, the Court concluded that the police officer did not have a reasonable suspicion that this particular accused was already engaged in drug related activity, given that the officer was only drawn to this accused because of factors such as the length of his hair and his manner of dress. This, undeniably, would not be sufficient to give rise to a reasonable suspicion that criminal acts were being committed. The court concluded that the subjectiveness of the officer’s decision to approach the accused on the basis of these factors, with nothing more than a hunch or feeling, would lead to entrapment unless the officer presented the accused with the opportunity to sell drugs in the course of a bona fide investigation. It was on this basis that the Supreme Court concluded that these circumstances did not amount to entrapment. The Court held that the officer was involved in such a bona fide investigation given that the purpose of the officer was to investigate and repress criminal activity in a specific area in Vancouver where the police had reasonable grounds for believing that drug-related crimes were occurring.
[24] Reasonable suspicion is not an unduly onerous standard. Reasonable suspicion is defined as something more than a hunch, feeling, expectation or mere suspicion, and something less than reasonable and probable grounds. In R. v. Chehil, 2013 SCC 49, the court was considering the concept of reasonable suspicion in the context of a search conducted by a dog trained to detect illegal drugs using its sense of smell. The Court stated:
[26] Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
[27] Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.
[28] The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime…
[29] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer's grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.
[30] A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.
[32] Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
[33] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable". This is self-evident.
[34] However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.S. 1 (1989), at p. 10 (citing Illinois v. Gates, 462 U.S. 213 (1983), at p. 244, footnote 13), "the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts". In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case. However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search: see Kang-Brown, at para. 92.
[35] Finally, the objective facts must be indicative of the possibility of criminal behaviour. While I agree with the appellant's submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act.
[46] Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on "factual elements which can be adduced in evidence and permit an independent judicial assessment": P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123, at p. 125. The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer's training and experience.
[47] An officer's training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer's experience will suffice, or that deference is owed to a police officer's view of the circumstances based on her training or experience in the field: see Payette, at para. 25. A police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard. Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training. To the extent that specific evidence of the investigating officer's experience and training supports the link the Crown asks the court to draw, the more compelling that link will be.
[25] In R. v. Ahmad, 2020 SCC 11, the Supreme Court of Canada returned to the topics of reasonable suspicion and random virtue testing in the context of dial-a-dope operations and stated as follows:
[27] People are not protected against random virtue testing if we assume that entrapment occurs only when virtuous people would be tempted to commit crimes. The opportunity-based branch of the Mack test therefore establishes that police cannot subject anyone to random virtue testing -- virtuous or non-virtuous, predisposed or non-predisposed -- without reasonable suspicion. Many commentators support the test established in Mack for this very reason -- that is, because its objective threshold protects everyone from random testing (Ashworth, at p. 305; D. Ormerod and A. Roberts, "The trouble with Teixeira: Developing a principled approach to entrapment" (2002), 6 Int'l J. of Evidence & Proof 38, at pp. 46-48; S. Bronitt, "The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canada and Europe" (2004), 33 Comm. L. World Rev. 35, at p. 78; Roach, at p. 1462; D. Stuart, Canadian Criminal Law: A Treatise (7th ed. 2014), at p. 653).
[28] Providing individuals the opportunity to commit offences without the foundation of a reasonable suspicion also unacceptably increases the likelihood that people will commit crimes when they otherwise would not have. The risk is at its highest when the person given the opportunity is comparatively vulnerable or otherwise marginalized. Random virtue testing therefore violates the principle that it is wrong for the police to manufacture crime because it "prey[s] on the weakness of human nature" to entice individuals into offending (R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897, at para. 58, per Lord Hoffmann). Marginalized people, with the limited resources they possess, will rarely, if ever, be able to meet the high burden of proving bad faith. There will rarely be evidence of intentional racial profiling or targeting of the vulnerable. Conversely, the test in Mack -- grounded in reasonable suspicion -- is attainable for everyone, designed as it is to accommodate the "qualities of humanness which all of us share" (Mack, at p. 940). It seeks to protect the justice system and preserve the rule of law by ensuring that all individuals, predisposed or not, are protected from improper police conduct (Mack, at p. 961).
[45] Reasonable suspicion is, by definition, an objective standard that protects individuals’ interests and preserves the rule of law by ensuring courts can meaningfully review police conduct. For this reason, it is fundamental to restraining the power of police to provide opportunities to commit crimes. That said, reasonable suspicion is not “unduly onerous” (Mack, at p. 958). As a lower standard than reasonable grounds, it allows police additional flexibility in enforcing the law and preventing crime. In the entrapment doctrine, reasonable suspicion emerges from the first branch’s concern with police behaviour that falls short of actually inducing an offence, yet nonetheless constitutes police involvement in the commission of a crime.
[46] While the reasonable suspicion standard requires only the possibility, rather than probability, of criminal activity (Chehil, at para. 27), it must also be remembered that it provides police officers with justification to engage in otherwise impermissible, intrusive conduct such as searches and detentions. It is therefore subject to “rigorous,” “independent” and “exacting” judicial scrutiny (Chehil, at paras. 3 and 26). The suspicion must be focused, precise, reasonable, and based in “objective facts that stand up to independent scrutiny” (MacKenzie, at para. 74). In Simpson, at pp. 500-3, the Court of Appeal for Ontario, drawing from U.S. jurisprudence, this Court’s application of reasonable suspicion in Mack, and the articulable cause doctrine in R. v. Wilson, 1990 109 (SCC), [1990] 1 S.C.R. 1291, summarized reasonable suspicion as requiring a “constellation of objectively discernible facts” giving the officer “reasonable cause to suspect” that a certain kind of crime was being committed by a particular person or in a particular place. This definition continues to be applied by this Court (see, e.g., R. v. Jacques, 1996 174 (SCC), [1996] 3 S.C.R. 312, at paras. 24‑25; Kang-Brown, at para. 76; Chehil, at para. 3). Ultimately, the evidence said to satisfy reasonable suspicion must be carefully examined.
[47] Although innocent explanations and exculpatory information remain relevant to an assessment of reasonable suspicion, the police are not required to undertake further investigation to rule out those explanations (Chehil, at paras. 33-34). Nevertheless, the facts must indicate the possibility of criminal behaviour: characteristics that apply broadly to innocent people are not markers of criminal activity (Chehil, at para. 35). Mere hunches and intuition will not suffice (Barnes, at p. 460). However, an officer’s training or experience can make otherwise equivocal information probative of the presence of criminal activity (Chehil, at para. 47).
[48] Reasonable suspicion is also individualized, in the sense that it picks an individual target — whether a person, an intersection or a phone number — out of a group of persons or places. As noted above, the criminal law’s objections to “generalized suspicion” hinge on its embrace of “‘such a number of presumably innocent persons as to approach a subjectively administered, random basis’” (Chehil, at para. 30, quoting United States v. Gooding, 695 F.2d 78 (1982), at p. 83). When an objectively grounded suspicion instead attaches to a “sufficiently particularized constellation of factors” (Chehil, at para. 30), like those relating to an individual phone number, the objection falls away. In other words, the ill sought to be remedied by individualization is police intruding on the protected interests of all persons in broadly or poorly defined locations, especially on the basis of generalized evidence (Kang‑Brown, at para. 73, per Binnie J.). This is a complete answer to our colleague’s concern about dissonance between the entrapment framework set out in Mack and Barnes and the reasonable suspicion standard required by Chehil.
[60] Our point about timing is fundamental. Reasonable suspicion is not formed retroactively. Rather, it is applied prospectively. From its inception, the entrapment doctrine has required that police officers have reasonable suspicion of criminal activity before providing an opportunity to commit an offence. Reasonable suspicion -- like any level of investigative justification -- can justify an action only on the basis of information already known to police (see, e.g., Swan, at para. 27; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 64; Ormerod and Roberts, at p. 46, fn. 31). It follows that the decision to intrude into an individual's private life and offer them the opportunity to commit a crime is justified only if the grounds predate the measure. This is no different than the rule that applies to every context in which this standard (or indeed any standard) is used to justify state actions that interfere with individuals' protected interests. Police may not detain an individual for investigative purposes unless they already have reasonable suspicion the individual is connected to a particular crime (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 591, at para. 34). Nor may police undertake a safety search unless they already have reasonable grounds to believe that their safety or the safety of others is at risk (R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41). This Court has also been clear that reasonable suspicion must be assessed at the time of a sniff search and not after (Chehil, at para. 68).
In summary, reasonable suspicion is an objective standard, lower than reasonable grounds, requiring only the possibility, rather than probability, of criminal activity. However, it is still subject to rigorous, independent and exacting judicial scrutiny. The suspicion must be focused, precise, reasonable and based in objective facts. Reasonable suspicion requires a constellation of objectively discernable facts giving an officer reasonable cause to suspect that a certain kind of crime is being committed by a particular person.
[26] The police are permitted to form reasonable suspicion through investigative steps, including investigative steps that involve direct contact with an undercover officer, as long as the requisite suspicion is present before the opportunity is provided. In R. v. Ramelson, 2021 ONCA 328, the court stated:
[49] In Ahmad, the tips the police had received about the dial-a-dope operations were of unknown reliability. The court had no trouble concluding the police, at the time they placed the call to the telephone number in the tip, did not have reasonable suspicion that the person who answered the phone was involved in drug trafficking. Hence, without reasonable suspicion the police could not offer the person the chance to sell them drugs. However, as the court said, at para. 54, “it is also possible for the police to form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime.”
[50] This explains the different results in the two appeals before the court in Ahmad. In the police conversation, Ahmad used drug culture jargon by responding “what do you need?”. This response gave rise to a reasonable suspicion he was engaged in drug trafficking and the police could then offer to buy drugs from him. He was not entrapped. On the other hand, Mr. Williams’ only responses before the police offered to buy drugs from him were “yeah”, “who is this?”, and “Vinnie who?”. These responses did not give rise to a reasonable suspicion he was engaged in drug trafficking. Therefore, he was entrapped.
See also: R. v. Ray, 2020 ONCA 351 at para 40 where the court held that the presence or absence of reasonable suspicion should be assessed at the time the opportunity was provided.
[27] Recently, the Ontario Court of Appeal in R. v. Henry-Osbourne, 2021 ONCA 561, again considered the concept of reasonable suspicion in the dial-a-dope context. The Court stated:
[16] In the context of a dial-a-dope investigation, police may provide an opportunity to commit a crime only upon forming a reasonable suspicion that the person answering the phone is engaged in drug trafficking: Ahmad, at para. 44. The majority in Ahmad was careful to emphasize at para. 20 that a bona fide investigation is not a separate and freestanding way to entrap an individual. Rather, an investigation is bona fide where the police have reached a threshold of reasonable suspicion and they have a genuine purpose of investigating crime. Ultimately, the entrapment analysis focuses on whether the police had formed a reasonable suspicion when they created an opportunity to commit a crime…
The Court made it clear that reasonable suspicion can exist before the call is made or in the course of the conversation. However, no opportunity to commit a crime can be presented to the target prior to the reasonable suspicion existing. (Henry-Osbourne, para 17) In order to determine whether reasonable suspicion existed at the time of opportunity, all relevant circumstances must be considered. In Henry-Osbourne, the court stated:
[24] Because it is a contextualized, individualized, and fact-driven inquiry, the determination of reasonable suspicion requires a careful examination of the evidence and an assessment of the entire “constellation of objectively discernable facts”: Ahmad, at paras. 46 and 48. As a result, simply comparing the circumstances of this case to those in Ahmad, where no entrapment was found, or in Williams, where it was, is not dispositive of the issue. The circumstances of the present case differ because they comprehend not one conversation but a series of telephone conversations and text exchanges that culminated in the offer and purchase of heroin. It is therefore necessary to examine all the relevant circumstances to determine if the appellant was entrapped.
[28] Importantly, reasonable suspicion of a criminal activity does not permit the police to offer an opportunity to commit any and all criminal activity. There must be some connection between the criminal activity for which the police hold a reasonable suspicion and the criminal activity that is the subject of the opportunity presented. The Supreme Court in Mack offered the following guidance on the connection required:
[112] The past criminal conduct of an individual is relevant only if it can be linked to other factors leading the police to a reasonable suspicion that the individual is engaged in a criminal activity. Furthermore, the mere fact that a person was involved in a criminal activity sometime in the past is not a sufficient ground for "reasonable suspicion". But when such suspicion exists, the police may provide that person with an opportunity to commit an offence. Obviously, there must be some rational connection and proportionality between the crime for which police have this reasonable suspicion and the crime for which the police provide the accused with the opportunity to commit. For example, if an individual is suspected of being involved in the drug trade, this fact alone will not justify the police providing the person with an opportunity to commit a totally unrelated offence. In addition, the sole fact that a person is suspected of being frequently in possession of marijuana does not alone justify the police providing him or her with the opportunity to commit a much more serious offence, such as importing narcotics, although other facts may justify their doing so.
[113] There should also be a sufficient temporal connection. If the reasonable suspicions of the police arise by virtue of the individual's conduct, then this conduct must not be too remote in time. I would note, however, that the reasonable suspicions of the police could be based on many factors and that it is not necessary for one of these factors to be a prior conviction. If the police have obtained information leading to a reasonable suspicion that a person is engaged in criminal activity, it will be enough of a basis for them to provide that person with the opportunity to commit an offence -- the presence of a prior criminal record is not a prerequisite to the formation of reasonable suspicion. I do not think the requirement that the police act on reasonable suspicion is unduly onerous; from a common sense viewpoint it is likely that the police would not waste valuable resources attempting to attract unknown individuals into the commission of offences. It can perhaps be safely assumed, therefore, that the police will act on such grounds.
[29] In R. v. Ramelson, the court examined this requisite connection in comparing a reasonable suspicion of obtaining sexual services for consideration to providing the opportunity to commit the offence of child luring. The court stated:
[83] I accept the police lacked reasonable suspicion that the customers responding to ads on Backpage were committing or intending to commit the child luring offence under s. 172.1(1)(b).
[84] In the next step of his argument, counsel contends the doctrine of entrapment requires that the reasonable suspicion relate to the same criminal conduct under investigation and the police can only present persons in the space with the opportunity to commit that particular offence. It follows, he submits, that since the police did not have reasonable suspicion persons were committing the child luring offence under s. 172.1(1)(b), they could not offer customers the opportunity to commit that offence. The police offered customers the opportunity to commit the child luring offence by disclosing “she” was under 16 and giving the customer the opportunity to continue the conversation.
[85] Lamer J. in Mack made clear that the police can provide a person with the opportunity to commit a different offence that is rationally connected and proportional to the offence for which there is reasonable suspicion…
[86] In the context of Project Raphael, the child luring offence under s. 172.1(1) is rationally connected to the investigation of the commodification of sex offence under s. 286.1(2). In offering the opportunity to commit the s. 286.1(2) offence for which the police did have reasonable suspicion, they could not avoid offering the opportunity to commit an offence under s. 172.1. That is because in this investigation the offer to commit the s. 286.1(2) offence was necessarily conveyed using telecommunication. Once the police presented the offer to commit the s. 286.1(2) offence, the customer, by any response other than terminating the chat, would commit an offence under s. 172.1(1).
[87] I do not attach much significance to the fact that in each of these cases the police disclosed the girl in question was under 16, with the result that the customers, by continuing to negotiate to obtain sexual services, committed the offence under s. 172.1(1(b)) (child luring under 16) rather than s.172.1(1)(a) (child luring under 18). As noted above, the police had an evidentiary basis to believe the average age at which underage persons first had their sexual services sold was 14.8 years. I regard the s. 172.1(1)(b) (child luring under 16) offence to be rationally connected and not disproportionate to the s. 286.1(2) (obtaining sexual services from a minor) offence.
[88] Furthermore, the s. 172.1(1)(b) offence and the s. 286.1(2) offence as charged share essential elements. As no sexual services were actually obtained in these appeals, the offence charged under s. 286.1(2) related to communicating for the purpose of obtaining sexual services from a person under 18. Both offences require communication for the purpose of facilitating sexual contact with a person who is underage.
[89] The s. 172.1(1)(b) offence is a more serious offence that is subject to a longer period of incarceration. However, in my view, the child luring under 16 offence is not a “much more serious” and “totally unrelated” offence to the commodification offence.
[30] In R. v. Lebrasseur (1995), 1995 4697 (QC CA), 102 C.C.C. (3d) 167 (QCCA), the Quebec Court of Appeal examined the connection required in the context of a police investigation of a civilian member. The accused was an assistant suspected of using narcotics. She told a police officer that people in the drug scene trusted her. Investigators developed a scenario in which Ms. Lebrasseur was provided with and took an opportunity to facilitate a drug sale from a drug dealer to an undercover officer. The Court held that there did not need to be a perfect correlation between the suspected crime (drug possession) and the crime that Ms. Lebrasseur was provided the opportunity to commit (drug trafficking). The reasonable suspicion that Ms. Lebrasseur was involved in the drug scene was determined to be sufficient to justify presenting her with the opportunity to traffic.
[31] There is no question that reasonable suspicion in relation to one particular criminal activity does not allow the police to provide the opportunity to commit any and all criminal activity. However, exact parity between reasonable suspicion and opportunity is not required. Using the guidance in Mack and Ramelson, it is clear that the crime for which the police have reasonable suspicion and the crime that the police provide the accused with the opportunity to commit must be:
a. Rationally connected – in other words, the reasonable suspicion crime and the opportunity crime must be causally linked in the sense that suspicion of one leads rationally to providing the opportunity for the other;
b. Proportional – in other words, the opportunity provided should be no more than what is required in the circumstances to draw out the sought after behaviour; and
c. Temporally connected – the reasonable suspicion should be premised on events that are reasonably close in time to the related opportunity provided.
These factors will need to be considered based on an analysis of all of the circumstances on a case by case basis.
Opportunity
[32] Not every police action will amount to providing an opportunity to commit an offence. In R. v. Ahmad, 2020 SCC 11, the Supreme Court discussed the relationship required between the police conduct and the commission of an offence to create an opportunity. The court stated:
[63] The determination of whether a police action constitutes an opportunity to commit an offence is informed both by the definition of the offence and the context in which the action occurred. Like other aspects of the entrapment doctrine, it reflects the balance struck between the state’s interest in investigating crime and the law’s constraint against unwarranted intrusion into individuals’ personal lives. In a conversation, an opportunity will be established when an affirmative response to the question posed by the officer could satisfy the material elements of an offence. In the dial-a-dope context, in which the initial interaction between the police and target occurs entirely over the phone, the exercise centres on determining whether words spoken by the police officer constitute an opportunity to commit drug trafficking.
[64] The inquiry, then, is properly directed to how close the police conduct is to the commission of an offence. To allow the police sufficient flexibility to investigate crime, an officer’s action — to constitute an offer of an opportunity to commit a crime — must therefore be sufficiently proximate to conduct that would satisfy the elements of the offence. For example, in Bayat, Rosenberg J.A. concluded that beginning an online conversation with a target was not an opportunity to commit the offence of child luring. He likened the first contact to a “knock on a door” (para. 19). In his view, that initial contact was too remote from the commission of the offence to constitute the provision of an opportunity to commit an offence (see also R. v. Vezina (A.), 2014 CMAC 3, 461 N.R. 286, at paras. 5-6; Williams (2010), at paras. 45-47). In the particular context of drug trafficking, we would adopt the conclusion reached by Trotter J. at para. 27 of the Williams stay decision: an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering “yes.”
[33] Determining whether the police have provided an opportunity is not always an easy determination to make. The Court in R. v. Ghotra, 2020 ONCA 373 struggled with this question and determined that “providing an opportunity” should not be defined so broadly so as to capture all investigative conduct by the police. The Court stated:
[21] Much of the entrapment case law focuses on the distinction between presenting an individual with an opportunity to commit an offence, and merely taking a step in investigating criminal activity. The former is entrapment unless the police first have reasonable suspicion. The latter is permissible police conduct.
[29] Providing an opportunity is not established by but-for causation - that but for the presence of the investigating officer posing as a 14-year-old girl, the appellant would not have had the opportunity to commit the offence. In Ahmad, this court cautioned against "an overly technical approach to the entrapment doctrine" that detaches the doctrine from its purpose of preventing police investigations that offend against decency and fair play: at para. 39.
[31] Accordingly, I do not agree that the trial judge committed any error. Where, as here, the police conduct is nothing other than placing a potential victim in an accused's line of vision, and where the accused is given no reason to believe that the victim would be a willing participant in the offence committed, the police have not provided an opportunity to commit an offence. It was the appellant who initiated contact with the undercover officer masquerading as a 14-year-old girl. It was the appellant who sought to ascertain her age. Having learned that she was underage, it was the appellant who ventured into sexual topics and suggested an in-person meeting. Throughout these interactions, the undercover officer repeatedly raised the issue of the fictional victim's youth, but the appellant persisted.
[34] As explained above, the doctrine of entrapment permits police, who have a discernable reason to suspect criminal behaviour, to offer suspects an opportunity to commit a crime. To the extent that there is viva voce evidence in this proceeding that the undercover officers were cautioned not to provide an opportunity for the commission of a crime to Cst. Senior, in circumstances where reasonable suspicion existed, their understanding of the permissible scope of police action may be relevant to an assessment of their conduct, but goes beyond what the law actually requires.
Inducement
[35] Where reasonable suspicion is present, the court then turns to the question of whether there was inducement, as opposed to mere opportunity. The test is objective. The courts must consider inducement through the lens of an average person in the accused’s position. In Mack, the court stated:
[116] As regards the latter form of entrapment, to determine whether 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.e., a person with both strengths and weaknesses, into committing the crime. I believe such a test is useful not only as an analytical mechanism that is consistent with objective analysis, but also because it corresponds to one of the reasons why the defence is thought desirable. In other words, 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. The reasoning does not go so far as to imply that the accused is therefore less blameworthy; rather, it suggests that the state is involved in the manufacture as opposed to the detection of crime.
[118] The response to this is two-fold. Firstly, I agree that there is a danger of convicting "lambs" or people who have a particular vulnerability such as a mental handicap or who are suffering from an addiction. In those situations, it is desirable for the purposes of analysis to consider whether the conduct was likely to induce criminal conduct in those people who share the characteristic which appears to have been exploited by the police. I am not, however, in agreement with the assertion that it is fair for the police in the general run of cases to abuse a close relationship between friends or family members as compared to that between acquaintances, contacts or associates, for the purpose of inducing someone into the commission of an offence, and thus I do not consider this a valid criticism of the hypothetical person test. The nature of the relationship at issue is relevant and in certain cases it may be that the police have exploited confidence and trust between people in such a manner as to offend the value society places on maintaining the dignity and privacy of interpersonal relationships.
[119] Secondly, I do not find the danger of acquitting wolves particularly troublesome. It assumes that it cannot be said the chance exists that a predisposed person would not have committed the particular offence were it not for the use of inducements that would have caused a nonpredisposed person to commit the offence. More fundamentally, this perspective is part of a larger viewpoint that in certain cases it would be better for society to send someone to jail for committing a crime, even if fundamental rights and procedural guarantees normally provided to an accused have been disregarded. The familiar refrain is that the end justifies the means. This view is, however, entirely inconsistent with the model of fairness which exists both within and alongside substantive criminal law doctrine. Could not the same comment of "acquitting wolves" be made where an accused's right to counsel or to remain silent have been flagrantly violated, and the evidence of his or her confession to the crime is excluded? In the short term, it may well be "better" for society to convict such persons, but it has always been held that in the long term it would undermine the system itself. If the rule of law is to have any meaning and provide the security which all in society desire, it is axiomatic that it be extended to every individual.
[120] I am not of the view that the hypothetical or average person model is the only relevant method of analysis. There may be situations where it cannot be concluded that a hypothetical person would likely have committed the offence under the same circumstances, and yet the presence of other factors support the conclusion that the police involvement in the instigation of crime has exceeded the bounds of propriety. When a court is of this view, the mere fact that the hypothetical-person model of analysis is not appropriate does not mean the conduct does not amount to an abuse of process. Each situation will have to be considered on its own merits, and with a view to determining whether the police have gone beyond merely providing the opportunity for the commission of a crime and have entered into the realm of the manufacture of criminal conduct. I would, at this point, re-emphasize Estey J.'s observation that it is not possible to state at the outset which elements will be decisive in an entrapment scenario. Nonetheless, it is possible to outline what factors will be relevant and I will attempt to suggest some of them.
[121] I remain in agreement with Estey J.'s statement that "the inducement may be but is not limited to deceit, fraud, trickery or reward, and ordinarily but not necessarily will consist of calculated inveigling and persistent importuning" (p. 446), but there is no magic number of requests made on behalf of the police to the accused that will trigger the defence. I would also agree that the scheme must have been for the purpose Estey J. indicated and that the state's responsibility extends to those people who operate on its behalf in an entrapment situation. It is also necessary for the offence to be "instigated, originated or brought about by the police", but this is clearly a minimum standard since in cases where the police merely provide a person with the opportunity to commit an offence, it could be said that the same requirement will be met. Similarly it can be said that in any offence instigated by the police, the offence would not have been committed without their involvement. Taken alone, these requirements are insufficient to determine when police conduct goes beyond what is generally thought to be acceptable in protecting society from crime.
[122] In certain cases the police conduct will be offensive because it exploits human characteristics that as a society we feel should be respected. As I noted earlier, if the law enforcement officer or agent appeals to a person's instincts of compassion, sympathy and friendship and uses these qualities of a person to effect the commission of a crime, we may say this is not permissible conduct because it violates individual privacy and the dignity of interpersonal relationships, and condemns behaviour that we want to encourage. (Such appeals may generally indicate that more than a mere opportunity is being provided, although it must be recalled that the police or agents will in the detection of certain crimes have to infiltrate criminal organizations, and thus gain the confidence of the people involved.) Along the same lines, if the police appear to exploit a particular vulnerability of an individual, such as by encouraging one who suffers from a mental handicap to commit a crime, this too may strike us as patently offensive because such a person is in need of protection, and not abuse. Similarly, the inducement of those attempting to recover from drug or alcohol addiction into committing offences relating to those substances may not be proper since the result will be to retard, as opposed to advance, the interest of society in reducing the personal and social costs of drug and alcohol abuse.
[123] In some cases we may find that the degree of police involvement is disproportionate to the crime committed by the accused in so far as it causes more harm than it seeks to catch. In addition, we may be offended by disproportionality in the role played by the police in the criminal activity, as compared with the role played by the person being targeted. In assessing this, the timing of the police involvement, and whether the criminal activity is ongoing, should be considered. Whether the police or their agents themselves commit crimes in the course of efforts to induce another is relevant, but I am not willing to lay down an absolute rule prohibiting the involvement of the state in illegal conduct.
[125] The above description of activity is not intended to be exhaustive in terms of possible situations, or conclusive in the assessment of propriety. It is meant only to illustrate that in any number of situations, the reason why something is "improper" may vary. It cannot be stated that only one reason will be compelling or determinative. The issue of permissibility of police conduct must be considered in light of the totality of the circumstances. It is important to recall at all times the context in which entrapment usually occurs. An understanding of the reality of criminal activity is imperative to the development of a workable doctrine that accommodates the interests of all in society. In this respect, more leeway may be granted to police methods directed at uncovering criminal conduct that is simply not capable of being detected through traditional law enforcement techniques.
[128] …While predisposition of the accused is, though not conclusive, of some relevance in assessing the initial approach by the police of a person with the offer of an opportunity to commit an offence, it is never relevant as regards whether they went beyond an offer, since that is to be assessed with regard to what the average non-predisposed person would have done.
[129] The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will, however, never justify entrapment techniques: the police may not go beyond providing an opportunity regardless of their perception of the accused's character and regardless of the existence of an honest inquiry. To determine whether the police have employed means which go further than providing an opportunity, it is useful to consider any or all of the following 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.
The Court made it clear that this list was not exhaustive.
[36] Any undercover operation will likely involve rapport-building and storytelling. Whether that operation constitutes exploitation is a highly fact specific inquiry. The question is whether the police have conducted themselves so as to offend the value society places on preserving the dignity and privacy of interpersonal relationships, considering those factors as set out in Mack.
[37] Simple persistence is not automatically inducement. In some contexts, a certain amount of pressure is to be expected. The fact that the police invest considerable amounts of time and resources into an undercover operation is not, in itself, exploitation or entrapment. See: R. v. Sugden, [1991] O.J. No. 270 (ONCA).
[38] There is no dispute that the context for this entrapment analysis is that this is a police investigation of a police officer of nearly 15 years. The Respondent argued that “more leeway” or a “certain latitude” should be granted in the investigation of police criminality, because of the “position of confidence” occupied by the accused. This court does not accept this argument. In R. v. Darnley, 2020 ONCA 179, the court stated:
[60] Cst. Darnley argues that the trial judge erred in law in identifying the legal standards to be applied in determining whether entrapment occurred, specifically, whether the police went beyond providing her with an opportunity to commit an offence by inducing the commission of an offence. Cst. Darnley argues that the trial judge: (a) improperly reasoned that peace officers must be held to elevated standards of moral restraint or fortitude; and (b) misunderstood the average person inquiry by asking whether any OPP officer faced with the two integrity scenarios would inevitably have been induced to commit the breach of trust.
[61] I would find that both errors occurred…
[62] It is convenient to begin with the second error identified by Cst. Darnley, namely, the trial judge’s misunderstanding of the average person inquiry. This is a key inquiry in determining whether the police went beyond providing an opportunity to commit an offence and induced the commission of an offence. It involves asking “whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime”: Mack, at pp. 959, 966. Based on this inquiry, if the average person, with strengths and weaknesses, in the position of the accused “might also have committed the offence”, this inquiry supports a finding of entrapment: Mack, at p. 979. This is not the standard the trial judge applied. She asked instead whether an OPP officer “faced with the two integrity scenarios would have inevitably been induced to commit a breach of trust given his or her knowledge of their obligation” (emphasis added). This is a more exacting test than should have been applied.
[63] There are two problems with this statement. First, in Mack, the Supreme Court of Canada did not require a standard of “inevitability”. Lamer C.J., at pp. 959-960, explained how to determine whether the police have gone beyond providing an opportunity and inducing 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. [Emphasis added.]
[64] Put otherwise, it is a helpful analytical exercise to consider whether the commission of an offence would be “inevitable” or even “a common response”: Mack, at p. 960. If so, this is a valuable sign on its own that the police have exceeded the bounds of propriety in the inducement used. This does not mean, however, that the inevitability standard is the threshold required before the average person factor supports a finding of entrapment. The balance of Mack makes this clear.
[65] The second problem is that, in her inquiry, the trial judge applied an improper conception of the relevant strengths of the average person by effectively concluding that a police officer must be taken to have elevated standards of moral restraint and fortitude. The trial Crown invited this reasoning by submitting that Cst. Darnley’s status as a police officer “really changes the analysis”. He continued:
Because if it’s the average police officer who’s sworn an oath of secrecy, has sworn an oath of office, is under a code of conduct, that changes it. And if that’s the analysis in my respectful submission it’s over and done with at that point. The average police officer would not be touching or doing this type of conduct at all, but its an interesting issue.
[66] What the Crown was clearly suggesting was that because of the oaths an officer makes and the code of police conduct, the moral standards and the standards of resistance to temptation expected of police officers in entrapment cases are elevated. Indeed, the Crown theory that average police officers would abide by their oaths and resist inducements would elevate the standard to the point where police officers could never successfully invoke an entrapment defence.
[67] The trial judge accepted this invitation by relying expressly on the oath of office and then finding that although a hypothetical average citizen may “find it understandable that Darnley could be easily lured to reveal confidential information to her fiancé”, an officer would not have been induced to commit a breach of trust “given his or her knowledge of their obligations”.
[68] Although it is correct to account for the status of the accused as a police officer in establishing the factual context of the event, it is an error to elevate the standard of resistance expected of an accused police officer.
[69] As indicated, the relevant inquiry examines whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of the crime. Naturally, to give context to the inquiry, the hypothetical average person must be contemplated to be a police officer engaged in the relevant policing activity. In the criminal negligence context, R. v. Porto, 2016 ONSC 7353, 3 M.V.R. (7th) 334, aff’d 2018 ONCA 291, 23 M.V.R. (7th) 1, illustrates that a police officer engaged in the course of his or her duties in executing a high-speed response to an emergency has created an elevated risk of danger that heightens the care required. Similarly, in the criminal negligence context, an officer trained in the use of firearms may be expected to exercise that training in dangerous circumstances: R. v. Gosset, 1993 62 (SCC), [1993] 3 S.C.R. 76. In this sense, it is possible to speak of elevated standards for police officers. This was done in Gosset, at para. 39, as well as in both the lower court and appeal decisions in Porto: see 2016 ONSC 7353, at paras. 67, 75; 2018 ONCA 291, at para. 6. For this reason, the trial judge was correct in the entrapment context in considering Cst. Darnley’s knowledge of the repercussions of releasing confidential police information, and that Cst. Darnley encountered the information in police files while on duty at the police detachment.
[70] However, it is improper when applying the average person test to ascribe elevated standards of moral restraint or fortitude where a police officer is charged.
[71] First, the underlying factual assumption required to do so is controversial. There was no basis on the trial record, nor can it be judicially noticed, that officers attain higher standards of moral integrity and resistance to temptation than average persons, that they are less susceptible to the emotions of compassion, sympathy, and friendship, or more immune from mental illness or substance addiction – factors that Mack calls into consideration where relevant: at p. 966.
[72] More importantly, ascribing moral superiority and a heightened resistance to criminal inducement to police officers subverts the average person standard. In this case, the trial judge recognized that an average person could be easily lured to reveal confidential information to her fiancé. Yet, she went on to consider how a police officer would have responded and denied the defence, primarily for this reason.
[73] In sum, had the trial judge confined herself to the factual circumstances of a police officer trained in handling confidential police information and the implications of its release, she would have been proceeding appropriately. By holding Cst. Darnley to higher moral standards and standards of resistance to emotional pressure, she erred.
[39] Police officers are not held to a higher standard of resistance than civilians. The test set down by the Supreme Court of Canada, as recently reaffirmed, does not suggest that the test or analysis be modified to adapt to the personal characteristics of the accused in this manner. Such modification or adaptation would make the test very difficult to employ. If the focus is to be on the conduct of the investigators, that is where the focus should remain. The seriousness of the police conduct should not become less so simply because the subject of the investigation may be more prone to resistance. It would be extremely difficult to assess any given person’s ability to resist temptation. What factors would be considered – age, gender, race, occupation? This would lead to unfair stereotyping which has no place in legal analysis. It is the view of this court that it would be an error to require the accused to demonstrate that an average person would have inevitably been induced to commit the offence, or to hold a police accused to an elevated standard of moral restraint, fortitude and resistance than an average civilian.
Chronology of Project Tadeu
[40] This Court relies on the facts as found and set out in its initial judgment in this case (R. v. Senior, 2021 ONSC 2729). Only some of those facts will be repeated in this judgment, however, all of those facts have been considered. In addition to those facts, in the context of this entrapment application, it is necessary to review the timeline of the investigation from the perspective of D/S Salhia in order to consider the appropriateness of steps that were taken. Much of the information learned and documentation relied upon by D/S Salhia would, of course, amount to inadmissible hearsay if introduced for the truth of its content. However, in this context, it was not introduced for its truth, and not considered as such by this court. Rather, it is considered for the limited purpose of understanding the steps taken in this investigation and for the reason for those steps.
[41] The investigation into Cst. Senior began on February 21, 2018, prompted by information received from a confidential informant. D/S Salhia attended a briefing on that day with a number of officers. They were made aware of the information received relating to Cst. Senior. At that time, roles were assigned to team members, and they discussed some challenges relating to investigations of this nature, including secrecy and containing the information within the initial team of six officers. Up to that point, no substantive steps had been taken in relation to investigating Cst. Senior, and D/S Salhia agreed that the investigation started with him. As for why this was handled internally as opposed to by professional standards, D/S Salhia stated, “Due to the fact that the information was in relation to criminal and corrupt practices by one of our members, a decision was made by, I guess, command to have the investigation conducted with a team that would have been maybe better equipped”. Even though there was a conduct component to the investigation, it was believed that the criminal component of the investigation could be better handled in this manner. The initial objective or purpose of the investigation was to verify some of the information police had received in order to either exonerate Cst. Senior or further the investigation. Prior to this investigation, there had been no red flags respecting Cst. Senior’s duties.
[42] From the beginning of the investigation, D/S Salhia knew that Cst. Senior was attached to 5COR based in Markham, and that he was heavily involved in traffic enforcement. The COR units attached to each district in the region were independent from the primary responders, however, while a COR officer was on duty, they would be monitoring the district air channel, and if there was a priority call, they had a duty to respond. As for experience and education, D/S Salhia understood that the primary focus for Cst. Senior had been traffic enforcement duties, even though Cst. Senior had completed a 6-month Criminal Investigation Bureau (“CIB”) placement, in addition to 9 weeks with CIB as part of his initial training. According to D/S Salhia, traffic enforcement officers would interact with informants and this was highly encouraged, as the vast majority of information received was from uniformed officers on the road. He explained that there were basic courses that all officers took in the early part of their career that allowed them to handle an informant. He did acknowledge, however, that there were different degrees of informant handling, some that required more advanced training. D/S Salhia pointed to Tab 1 of the Crown Exhibits on Entrapment (Exhibit 1) as an example of Cst. Senior’s experience with informants. This was a typed document addressed to D/C Fiore of the hold-up squad, purporting to be authored by Cst. Senior. It stated as follows (although some content was edited):
In the month of January 2012 I received some information from a confidential informant regarding a case involving extortion and home invasion. The victims were Oscar and Darryl, owners of Canning Consrtuction. The home invasion was orcastrated be **** and the extrotion was organized by ***. An associated lacation was also mentioned called the Open Cork, located at Albion and the queensway.
D/S Salhia explained that this was uncovered through a search warrant executed on Cst. Senior’s emails. He testified that this was not uncommon to see from uniformed street officers. This email became relevant to the broader investigation and will be addressed further later on.
[43] As for experience a traffic enforcement officer would have in undercover operations, D/S Salhia stated, “it depends”, but generally if an officer was given a uniform assignment, they would not be conducting undercover operations. The requirements and training for acting undercover were much more rigorous than simply handling an informant. Handling an informant could be done simply by taking a brief course that most officers had access to, but conducting undercover operations required taking, at minimum, a one-week course. If this course was completed successfully, the officer could act in undercover operations only at the direction of the commander out of the Organized Crime Enforcement Bureau and only locally. After completion of the one-week course, the officer could then be recommended to join a two-week course, which would allow the officer to conduct operations provincially and nationally. D/S Salhia explained that officers could not go undercover without permission and procedure in place.
[44] This investigation was given the name Project TADEU to lead other officers in the bureau to believe they were part of the Toronto Airport Drug Enforcement Unit, and thereby, maintain the secrecy of their work. D/S Salhia was the lead investigator, meaning he managed the flow, speed, and direction of the investigation, identifying different investigative avenues of pursuit depending on the information that came in and delegating tasks to the team. D/S Salhia agreed that, “on the ground”, he was “calling the shots” on this investigation. The initial investigative team consisted of six sworn officers and a civilian member, including a file coordinator.
[45] The first significant step in the investigation, apart from standard surveillance techniques, was to conduct an audit of CPIC queries which had been performed by Cst. Senior. These queries remain permanently in the database. Given that this was an allegation of corruption and criminality, apart from standard surveillance, D/S Salhia felt that looking for unlawful or suspicious queries was a prudent way to start. The scope of the audit was from 2006, after Cst. Senior was no longer working with a coach officer, up to the time that the audit was being conducted. The team was tasked with conducting the CPIC audit for the entire time, broken down by year. Given the number of queries conducted by Cst. Senior over the course of his career, D/S Salhia stated:
To remain objective, impartial, and fair with this investigation, I decided to eliminate any type of audit with regards to vehicle queries simply because it is very difficult to say that a vehicle would not be queried arbitrarily. For example, if you enter into a parking lot or if you are driving on the road, often times officers are querying plates arbitrarily. However, when it comes to specific name queries, if an officer enters a name into a system for a query, that should be for a purpose. Names should not be queried arbitrarily. So the focus of the audit was specifically on names. We would go as a team, each officer was tasked with a year. And once we identified a name that was queried by Mr. Senior chronologically…very simple system, process of elimination, we would look at the name, we would query that name through our own internal databases to see was Mr. Senior involved with giving this person a ticket. Was Mr. Senior involved in a general occurrence that had taken place? Was it a street check? Was there a ticket that was issued? If we were able to eliminate that, the next step would be essentially looking at the GPS data. We were able to extract the GPS data from Mr. Senior’s vehicle to see where he was at the time that the query was made…
…I believe the final step was conducting a notebook audit. So once we had determined that there was no, what we could determine, lawful reason Mr. Senior would have queried a specific name, we would have then obtained his notebooks that were housed at the district and we would have went into the notebooks to determine was there in fact a reason that we didn’t see with our database queries that Mr. Senior had queried that name just to be certain. And we also, sorry I missed a step, we also would have taken that name and filtered it through our…not just our regular databases but our intelligence databases as well to determine …was there an intelligence report that was generated that wouldn’t necessarily have been contained within our normal database queries.
[46] The investigation was documented by way of notes, investigative activity reports (“IAR”) and daily summaries. Officers would create IARs, which would be placed in an inbox for D/S Salhia to review every day or every other day depending on what was occurring. He would read the document, send it back to the authoring officer for revision if necessary, and then place it in another folder for the file coordinator to disseminate to the team.
[47] The CPIC audit and directions given to the team were memorialized in an IAR dated March 29, 2018 (Tab 2 of the Crown Exhibits on Entrapment – Exhibit 1). There were 14,341 CPIC name queries conducted by Cst. Senior between December 12, 2006 and January 17, 2018, which was in addition to the 9,853 vehicle queries within the same timeframe. The audit focused on the 14,341 name queries for the reasons outlined in the quote above. This IAR dated March 29, 2018 was disseminated to the team to give direction as to how the audit would unfold. Systematically, the team went through all 14,341 names to determine if a name was run for legitimate or suspicious purposes. This started at the end of March / beginning of April and lasted for several weeks. Four or five investigators were working on this activity. An IAR was prepared for each year of the audit, as well as a changing spreadsheet of unexplained CPIC entries that was created while the data was analyzed (Spreadsheet is found at Tab 6 of the Crown Exhibits on Entrapment – Exhibit 1)
[48] Very quickly, through the CPIC audit, some suspicious queries came to light.
[49] According to D/S Salhia, several notable events occurred, and pieces of information were learned, in April 2018. The following provides a timeline as to when certain information came to the attention of D/S Salhia in April 2018:
a. April 5, 2018 – D/S Salhia learned from the officer tasked to do the 2016 year that there were a number of queries conducted by Cst. Senior in relation to Danny Iandoli, who police believed was involved in organized crime. The circumstances of the queries were suspicious to investigators for the following reasons:
i. A number were grouped together on November 17, 2016.
ii. The spelling of the last name varied in the queries, even though this name had been previously queried by Cst. Senior. D/S Salhia believed that Cst. Senior may have been trying to avoid a “level-three hit” (email notification to an investigator who had flagged the name).
iii. There were different first names with the same last name of Iandoli queried within the same time frame, indicating that various members of the same family were queried.
iv. There was a licence plate query relating to the same last name.
v. On November 30, 2016, thirteen days after the group of queries, Mr. Iandoli was the suspect of an alleged assault.
An IAR dated April 5, 2018, (Tab 3 of the Crown Exhibits on Entrapment – Exhibit 1) reported these suspicions. Also, the report referred to Stephen Hatzes, which was another suspicious query identified. He was believed to be an associate of the Iandoli family. He was a witness to an alleged extortion that had taken place in 2011, the victim being Giancarlo Iandoli. This led D/S Salhia to be suspicious about Cst. Senior’s relationship to the Iandoli family and to question whether he was sharing information from the queries. On two occasions, when queries were made by Cst. Senior, GPS information confirmed that his vehicle was parked close to an Iandoli residence in Markham, which further raised suspicion that he was sharing information. There were also other names contained on this IAR that had been queried by Cst. Senior that caused concern.
b. April 10, 2018 – From an IAR prepared on this date, D/S Salhia learned that Cst. Senior had queried the name Julianna Coppinger on June 30, 2015, five days after this person had filed a report about being the victim of an extortion. The suspect identified was someone believed to be associated to organized crime. The fact that Cst. Senior had queried the name five days after the report was filed, with no obvious legitimate reason, was very concerning to investigators. Investigators also found it highly suspect that the extortion had allegedly happened in Vaughan, in 4 District, which was the far west of the region, and Cst. Senior was attached to 5 District in Markham, on the far east of the region. (Tab 5 of the Crown Exhibits on Entrapment – Exhibit 1)
c. April 20, 2018 – A production order was issued for Cst. Senior’s phone records. A Transmission Data Recorder Warrant, Tracking Warrants (vehicle and phone) and a Search Warrant (work e-mails) were also issued. By that time, investigators had formed reasonable and probable grounds to believe that Cst. Senior was committing offences of unauthorized use of computer and breach of trust, and there was a concern that he was sharing information with persons associated to organized crime.
d. April 24, 2018 –The production order allowed access to phone records between specific dates. Investigators took the subscriber information from each phone number located and sought to determine the relationship with Cst. Senior. Background checks were performed on each name. The names found on the phone were also compared to the CPIC queries. Also, around this same time, D/S Salhia completed a report on Sherry Wafer, which was a suspicious query performed by Cst. Senior as uncovered during the audit. This was the first mention of this name in the context of the investigation.
e. April 26, 2018 – D/S Salhia had a discussion with D/S Les Titleman and they were confident that they had met investigative necessity for a Part VI interception. The offences being investigated at that time were unauthorized use of computer and breach of trust. Out of the over 14,000 names in the CPIC audit, investigators had identified approximately 150 names that were suspicious in nature, which they separated into two categories: 1) friends and family; and 2) those potentially related to organized crime. Investigators were still trying to determine the purpose behind the suspicious queries, specifically, whether the information was being shared and was there a benefit. At this point, there was no direct evidence that Cst. Senior was disclosing / sharing information. According to D/S Salhia, this would be impossible to know from the CPIC audit alone.
f. April 30, 2018 – An IAR was prepared on Michael Vigliotti (Tab 7 of the Crown Exhibits on Entrapment – Exhibit 1). The production order had identified a phone number on Cst. Senior’s phone associated with Michael Vigliotti, who police believed was associated with a suspected organized crime family, specifically the Figliomeni family. The report outlined investigator’s beliefs as to why Michael Vigliotti was believed to be associated with the Figliomeni family. This validated investigator’s concerns that Cst. Senior was associating with people believed to be associated with organized crime. The purpose of such association was still unknown.
g. April 30, 2018 – The production order results from Cst. Senior’s phone and follow up analysis were documented in a report. (Tab 9 of the Crown Exhibits on Entrapment – Exhibit 1) Many names associated to numbers on the phone were also names, or vehicles associated to names, that were queried as discovered by the CPIC audit. Through the production order, investigators learned that a number associated with Michael Vigliotti had communicated with Cst. Senior’s phone approximately 35 times in the time span being analyzed, the majority of which occurred on November 27, 2017 and the last transmission on April 20, 2018. The analysis demonstrated that at least eight names associated with numbers on the phone had been queried by Cst. Senior.
[50] D/S Salhia testified that, out of the more than 14,000 names identified in the audit, there were approximately 150 queries that were suspicious in nature, as they appeared to be queried arbitrarily. D/S Salhia stated that these results were significant as officers should not arbitrarily query names. Out of the 150 suspicious queries identified, there were approximately two dozen IARs prepared in relation to specific concerns. D/S Salhia agreed that this was a large undertaking, but manageable, and that the analysis was completed in 2-3 weeks. In the spring of 2018, there were 6 or 7 people doing this investigative work full time. In cross-examination, D/S Salhia agreed that information in relation to licence plates, ownership, insurance, and registration was available through the Ministry of Transportation and that this information was also in the hands of insurance agencies. He also agreed that a person can get information about their own vehicles at the Ministry of Transportation for a small fee. In re-examination, D/S Salhia clarified that there was no method for a member of the public to get information from CPIC, which included information related to criminal records, charges before the court, criminal history, and firearm registry.
[51] While the CPIC audit was ongoing, surveillance was also occurring. The objective was to look at lifestyle and identify the movement of the targets, identify associates, vehicles, locations, persons of interest, places of interest and to verify or validate information believed at the time about querying information and possible sharing of information. In April / May 2018, there were at least three persons under surveillance: Cst. Senior, Angelo Volpe and Michael Vigliotti. As for suspected offences, there were reasonable grounds to believe Cst. Senior was conducting arbitrary name queries and investigators were still trying to identify why and whether he was sharing this information for benefit.
[52] The investigation continued and in May and June 2018 the following significant events occurred:
a. May 4, 2018 – Angelo Volpe was identified as a name associated to one of the numbers on Cst. Senior’s phone. The police intelligence database queries showed that he was believed to be associated to outlaw motorcycle gangs. This was of significance to D/S Salhia. Tab 8 of the Crown Exhibits on Entrapment – Exhibit 1 – was an IAR submitted on May 4, 2018, created in relation to Angelo Volpe. It was discovered that a number associated with Mr. Volpe communicated with Cst. Senior’s phone on 15 occasions between April 29, 2017 and November 2, 2017. Further, Angelo Volpe was the victim of an alleged extortion that took place on August 25, 2017, where an alleged firearm was used. There were two possible suspects, one of whom was previously queried by Cst. Senior in 2007 or 2008 – Gordon Broadhead. D/S Salhia testified that this was relevant as the objective was to identify if Cst. Senior was querying names at the behest of a certain person or group and whether it was for a benefit. Communication with Mr. Volpe, being a person of interest due to his believed associations, was of great concern as this may have been a person with whom Cst. Senior was sharing information.
b. May 8, 2018 – D/S Salhia had a briefing with the investigative team. A list of objectives were laid out, such as identifying the criminal network Cst. Senior may be a part of, identifying other officers who may be attached to this network, identifying who queries were being sent to and why, and identifying any proceeds offences. As for proceeds offences, the belief was that Cst. Senior was doing queries at the behest of organized crime and that the benefit may be monetary. Further objectives were to disrupt and dismantle this organized crime group to which Cst. Senior was believed to be attached, identify his role in this criminal network, and identify any fraud related activity Cst. Senior may have been involved in. With respect to fraud, in early 2018, Cst. Senior was identified as being involved in a paid duty scheme with other officers in the region, whereby several officers were working together to accumulate paid duty hours, circumventing the system for their own benefit. The purpose of the briefing was to lay out clear, consistent objectives for the investigative team. Even though Cst. Senior was the focus, it also involved suspected members of organized crime that had potentially infiltrated the YRP organization. At this briefing, there was also discussion about using stimulation exercises through undercover operators.
c. June 13, 2018 – Preparation was underway for Part VI interceptions. D/S Salhia took part in an initial wireroom briefing. He prepared a PowerPoint presentation (Tab 10 of the Crown Exhibits on Entrapment – Exhibit 1) for the investigative team in the wire room, to bring them up to speed on things that had already happened in the investigation and to give them an understanding of the ongoing objectives of the investigation. The “goals and objectives” of the Part VI Authorization were outlined as follows:
Gather clear and compelling evidence relating to the outlined offences
• Unauthorized use of a computer contrary to section 342.1 of the Criminal Code;
• Breach of Trust by Public Officer contrary to section 122 of the Criminal Code.
• Conspiracy to commit, attempt to commit, or being an accessory after the fact to the commission of, or any counselling in relation to any of the offences listed above, contrary to section 465 of the Criminal Code.
Identify any co-conspirators involved in the outlined offences
Identify the payment structure for the furnishing of information
Identify, locate and seize those proceeds; and
Successfully prosecute the responsible co-conspirators
There were several targets of the Part VI interception, including Sherry Wafer and Caterina Petrolo (a provincial prosecutor). Both were believed to be involved in an intimate relationship with Cst. Senior. However, at that time, there was no information to suggest either of them were involved in any criminality. Another target of the Part VI was Timur Timerbulatov, a 5 District YRP officer, who was a frequent contact on Cst. Senior’s phone, and was also believed to be one of the main perpetrators of the paid duty scheme. D/S Salhia wanted investigators to be mindful that although the investigation was criminal in nature and revolved around Cst. Senior and his network, undoubtedly there would be interception of other police officers communicating with Cst. Senior and likely to be other conduct captured. He wanted to ensure that all members were held accountable, so as not to erode public trust.
d. June 14, 2018 – A Part VI Authorization to intercept private communications was issued.
e. June 18, 2018 – Superintendent Brian Bigras contacted UC1 about becoming involved in Project Tadeu.
f. June 19, 2018 – UC1 was deployed in an undercover capacity to act as Cst. Senior’s partner in 5COR. UC1 and Cst. Senior were at the same rank, both constables, and, according to UC1, he had no authority to direct or give orders to Cst. Senior. His cover story was that he had just come off suspension, was relocated to 5COR, with his general duties being traffic and community related events. (In fact, UC1 had been on suspension for several months as a result of criminal charges which were withdrawn on May 2, 2018.) UC1 knew Cst. Senior only in passing. UC1 was advised that the nature of the investigation was in relation to police corruption, and to investigate Criminal Code offences of breach of trust. UC1 understood the investigation related to Cst. Senior allegedly checking licence plates that he had no valid reason to check. As for his objective, UC1 testified that he was to “insert” himself or “infiltrate” the life of Cst. Senior, befriend him, act as the undercover, and assist in collecting evidence. These were the original objectives he was given, however he obtained further objectives as things continued from his handler, Det. Aaron Ladouceur. UC1 was explicitly given the objective to “build rapport” on numerous occasions and understood this to be an ongoing objective, which could include asking for or giving favours (personal and professional), using both positive and negative reinforcement, mirroring behaviours and concerns, and engaging in all manner of small talk. In cross-examination, UC1 agreed that he was not to suggest or create criminal activity. There was no timeline given to UC1 as to how long this investigation would take, but rather he would be involved as long as directed by his handler. According to D/S Salhia, the objective was to “insert” UC1 to work along side Cst. Senior. UC1 was to be the “eyes and ears on the ground” assisting to “navigate to certain portions of the investigation”. He was to provide information about Cst. Senior. UC1’s previous suspension “helped in the cover story” as in he was a “disgruntled officer potentially who was working alongside Mr. Senior….all it did was maybe help the cover story”. Det. Ladouceur was tasked as the primary handler, although D/S Salhia was initially a co-handler to alleviate the work. UC1 was not only working during the day in uniform but deployed in the evening. He was working alongside Cst. Senior but also working for the organized crime enforcement bureau and maintaining notes on both fronts.
g. June 20, 2018 – D/S Salhia received information from the wireroom that Angelo Volpe was intercepted telling someone that if he got a ticket, he knew somebody. Investigators believed he was referring to Cst. Senior and investigators felt this was an opportunity to do a stimulation technique – to issue a ticket, if the opportunity arose, and then to see if there would be calls to Cst. Senior from Mr. Volpe in relation to that ticket.
h. June 25, 2018 – A daily summary was prepared which came to the attention of D/S Salhia (Tab 11 of the Crown Exhibits on Entrapment - Exhibit 1). The information was as follows:
BTB PETROLO contacted SENIOR and told him that she reduced a ticket for someone named Roman. She offered 0 points on a charge that she made fit. She advised SENIOR to tell Roman to take the deal and not “squak” or they will take a closer look at the deal she offered.
D/S Salhia stated that this was very concerning as this was only a few days into the Part VI, and already there was an intercepted call suggesting that Ms. Petrolo and Cst. Senior were involved in ticket fixing. Nothing like this had been on the radar for investigators previously. At that point, investigators started to investigate obstruction of justice between Ms. Petrolo and Cst. Senior which ultimately worked into a second authorization. Cst. Senior and Ms. Petrolo were subsequently charged.
i. June 26, 2018 – D/S Salhia became aware that Mr. Vigliotti was operating a vehicle with unattached plates. He instructed that, if an opportunity presented itself, a uniformed officer would have grounds to stop and issue a ticket. According to D/S Salhia, the fall out of that ticket would be of interest if Mr. Vigliotti reached out to Cst. Senior. Mr. Vigliotti was issued a ticket that day and he made some utterances to the officer, in that he advised he knew Richard from YRP.
j. June 27, 2018 – UC1 met Cst. Senior. There was no objective, rather they had a friendly chat and exchanged personal phone numbers.
[53] After the end of June 2018, UC1 and Cst. Senior were partnered together on a regular basis. Their conversations were regularly intercepted and have been summarized in great detail in the earlier judgment of this court. Audio probes were installed in the YRP Tahoe on July 5, 2018 and in Cst. Senior’s personal vehicle, his F-150, on July 9, 2018.
[54] Throughout July, D/S Salhia continued to direct the investigation from behind the scenes. The following occurrences were of significance:
a. July 9, 2018 – UC2 (“Henry”) met with his cover team and was provided with his cover story and objectives. His handler was Staff Sgt. Kevin Ban, but he interacted with D/S Salhia as well. UC2 was provided with an “Undercover Fact Sheet” which laid out what he was permitted to know at the time. (Tab 12 of the Crown Exhibits on Entrapment – Exhibit 1) D/S Salhia prepared this fact sheet to share with Henry and this was the only information he would have known. The information provided was, in part, as follows:
Target Background: Richard SENIOR is a member of the York Regional Police (YRP) 5 District Community Oriented Response (COR) Unit. SENIOR is a 14-year veteran of YRP, and is a proactive traffic enforcement officer.
Offences Investigated:
Unauthorized Use of Computer – Section 342.1 CC
Breach of Trust by Public Officer – Section 122 CC
Objective: To pose as a Confidential Human Source seeking consideration for a HTA infraction after a staged traffic stop. The stop will be orchestrated by members of the investigative team and the secondary undercover officer [UC1]. The primary UC will seek consideration for either speeding or a stop sign infraction during this staged traffic stop, at which point they will provide information on Asian Organized Crime. The primary UC will attempt to obtain the phone numbers of both SENIOR and [UC1], on the premise they will be contacting them to provide information on a future date. The primary UC will develop a strong rapport with SENIOR and naturally gravitate to him as opposed to [UC1].
This scenario will evolve into several meetings and/or phone conversations between the primary UC and SENIOR, where the UC will continue to provide information to SENIOR and [UC1]. After providing SENIOR with “credible” information, the primary UC will eventually request that SENIOR query a license plate/name on their behalf. When the request is made by the primary UC to SENIOR, it will be to SENIOR alone and not [UC1].
UC2 (Henry) was considered the primary undercover officer in this operation. There was no contemplation to use Henry to involve Cst. Senior in any robbery, unlawful possession of weapons, trafficking of drugs, forgery or theft. D/S Salhia testified that it was important for the undercover officer to know what they had to do but not to know the fruits of the investigation which could impact impartiality or objectivity. The fact that investigators believed that Cst. Senior was sharing information with organized crime figures was not shared with either of the undercover officers.
b. July 12, 2018 – D/S Salhia learned of a recorded conversation between Cst. Senior and Sherry Wafer. According to D/S Salhia, Cst. Senior and Ms. Wafer engaged in a “highly suspicious phone call” where coded language was used. They referenced “ice cream” and a “freezer”. Cst. Senior told Ms. Wafer, “quite frantically”, to stop talking on the phone and that they needed to talk in person. According to D/S Salhia, the manner in which Cst. Senior said this suggested a heightened sense of awareness of someone listening on the call.
c. July 12, 2018 – The UC2 traffic stop scenario was conducted as planned. UC2 stated that he only wanted to deal with Cst. Senior. Cst. Senior told him it was a “2 man [operation]” but that he would deal with him. (ASF#3, page 487) Following the traffic stop, UC1 told Cst. Senior about the importance of encrypting his personal phone (ASF#3, page 490-1). UC1 advised Cst. Senior of protocols related to confidential informants. Cst. Senior told UC1 that he did not know what he was doing and was looking to him for direction. (ASF#3, page 495) According to D/S Salhia, he was aware of these conversations from the daily reports, however, he stated that he did not give specific instructions to UC1 in relation to advising Cst. Senior of protocol, rather that would have come from his handler.
d. July 13, 2018 – A one-party consent authorization was issued.
e. July 16, 2018 – Cst. Senior’s phone was set up by a tech officer to be intercepted. A forensic image of the phone was also created. Cst. Senior told UC1 that he had never done any confidential human source work, and the two then reviewed some of the rules for working with informants.
f. July 17, 2018 – D/S Salhia tasked Det. Mike DiPlacido, who was attached to the intelligence bureau, to query and do some research on something that had come to his attention, specifically to do a background check on Tonyc Salon and Spa in Toronto with an address and phone number provided. The phone number came to the attention of investigators as a result of an earlier general warrant execution. On the first week of July, investigators executed a surreptitious entry into Cst. Senior’s personal vehicle. A “burner phone” was located in the vehicle and the name and address registered to the phone was believed to be fictitious. When investigators extracted data from the phone and SIM card, there were only four phone numbers saved on the phone as contacts. There was also a phone call log of incoming and outgoing calls from the phone. One of the numbers identified on the log from the “burner phone” was associated to Tonyc Salon and Spa in Toronto and when the phone number was queried through police databases, it was associated to Angelo Figliomeni. This was significant to D/S Salhia because: 1) D/S Salhia believed Angelo Figliomeni was associated to organized crime; 2) a phone number was found in a “burner phone” – a throw away phone – often used by people involved in criminal activity. The phone was very old and only had four contacts, two of which were suspicious in nature. In cross-examination, D/S Salhia stated that in his everyday job, involved in organized crime and drug investigations, he had not encountered a burner phone being used outside of the context of criminality, however, he acknowledged this was only his belief and he was only speaking for himself. In re-examination, D/S Salhia stated that Cst. Senior’s primary phone was littered with conversations relating to extra marital affairs. There was nothing like that on the “burner phone”.
g. July 18, 2018 – D/S Salhia received information from D/C Roman Santos regarding extracted data from Cst. Senior’s personal phone (not the burner phone). Investigators identified a number of things of interest. Cst. Senior had a secret application on his phone that housed a number of folders. Each subfolder had a name attached to it. A number of the names of the folders / subfolders were people police had believed Cst. Senior was querying unlawfully. More significantly, there was a folder titled “Greenhouse” which contained what police believed to be evidence of illicit cannabis production. Evidence of suspicious queries were also captured on the phone and contained within the folder. During his testimony, D/S Salhia was taken to Agreed Statement of Fact #4 which included a number of items contained in the “Greenhouse” folder, including:
i. a photo of a licence plate queried by Cst. Senior (page 30 of ASF#4)
ii. photos of CPIC or Versadex queries, dated November 17, 2016, captured from a YRP cruiser which contained the name Danny Iandoli (pages 33-7 of ASF#4)
iii. photo of a Versadex query relating to Kevin Illies (page 46 of ASF#4)
iv. photos of Gordon Broadhead and a greenhouse where cannabis may have been grown (pages 77 and 80 of ASF#4)
v. photos of large quantities of bundled cash and a cash counter (page 87 of ASF#4)
According to D/S Salhia, this folder was the first evidence of illicit drug trafficking, production, and also strengthened the belief that Cst. Senior was querying names related to and at the behest of organized crime. Gordon Broadhead and Danny Iandoli began to feature more significantly in the investigation. An address contained in the folder was believed to have a medical cannabis licence to grow at that location and was also associated to Danny Iandoli. D/S Salhia believed this to be evidence of an illicit drug operation, based on the photo of the money counter and cash, the queries on CPIC, and also the utterances made by Cst. Senior to UC1.
Further, there was a folder titled “Sherry L” and upon review it appeared to be designed to house information related to Sherry Wafer. Within the “Sherry L” folder, there were photos of screen grabs with lists of large quantities of steroids and pricing. When D/S Salhia reviewed this, it brought his attention back to the intercepted conversation, suspected to be using coded language, between Ms. Wafer and Cst. Senior, wherein they spoke of “ice cream” and a “freezer”. D/S Salhia was aware that steroids were often stored in fridges. He believed this conversation was in relation to steroid trafficking. D/S Salhia did not agree that the debt list suggested personal use; in fact, he stated that based on his prior involvement in steroid investigations, this was not consistent with someone obtaining steroids for personal use. To D/S Salhia, the list was consistent with trafficking, and reemphasized that this was combined with coded conversation and the location of this within the “Sherry L” folder on the phone. He said he had reasonable grounds to suspect steroid trafficking, not an absolute conclusion. Also in the folder were photographs of vehicles associated to Ms. Wafer that showed up later in an intelligence report submitted by Cst. Senior. Information related to the “Sherry L” folder was documented in an IAR dated July 29, 2018 (Tab 13 of the Crown Exhibits on Entrapment – Exhibit 1).
According to D/S Salhia, there were about a dozen folders in the application on the phone. The data did not appear to be randomly placed, but rather systematically placed in the phone. For example, there were CPIC queries related to the name of the folder. That was the beginning of a number of investigative tasks into a number of subfolders that were identified from the extraction.
h. July 24, 2018 – D/S Salhia learned that Michael Vigliotti shared his licence plate with Cst. Senior for the purpose of having it queried. There was also a conversation between Cst. Senior in a WhatsApp group, titled “Wills Tickets Specialists”, and members of the group were Fabian Wills, Ms. Petrolo and Cst. Senior. (Tab 14 of the Crown Exhibits on Entrapment – Exhibit 1) The exchange was believed to be in relation to a ticket that was issued and consideration being sought from Ms. Petrolo. Ms. Petrolo stated: “Fabian.. your fathers disobey sign tickets has gone bye bye [EMOJI]”. This further strengthened the belief that Cst. Senior and Ms. Petrolo were obstructing justice. As a result of this, investigators decided to expand the known persons in their Part VI application. The new targets were Danny Iandoli, Gordon Broadhead, Caterina Petrolo, and Sherry Wafer.
i. July 24, 2018 – UC1 and Cst. Senior were intercepted in the Tahoe. UC1 stated that he would get the paperwork ready for the confidential informant (UC2). Cst. Senior advised UC1 that he was looking to UC1 for all the answers. (ASF#3, pages 699-700) D/S Salhia testified that if it was in the transcript he was not disputing that the conversation occurred.
j. July 25, 2018 – A report was prepared by D/C Roman Santos with regard to the extracted data from Cst. Senior’s personal cell phone. (Tab 15 of the Crown Exhibits on Entrapment – Exhibit 1) This report summarized the names of the secured folders, names of the unsecured folders, and names in a contact list and related it to earlier work on the queries performed.
k. July 27, 2018 – UC1 was given the direction to begin probing the possibility of steroids with Cst. Senior. A future objective was for UC1 to purchase steroids from Cst. Senior if the opportunity presented itself. Taking the totality of the information into consideration, D/S Salhia had formed reasonable grounds to suspect that Cst. Senior was involved in trafficking of steroids with Ms. Wafer and UC1 was tasked to investigate. Prior to that there had been no such direction given to UC1.
On that day, Cst. Senior and UC1, in plain clothes, drove together in an unmarked car to meet UC2 at Joey’s. UC1 entertained the idea of using steroids, also known as “gear”. Cst. Senior objected, suggesting that UC1 needed to work out more and improve his diet. They had a general discussion about steroids in which Cst. Senior told UC1 that steroids from Germany and India were the best, and also that he had a friend who had, three or four months prior, brought steroids into the country from Mexico. They talked about the fact that it was an offence to cross the border with steroids. Cst. Senior did not offer any steroids to UC1.
l. July 31, 2018 - UC1 and Cst. Senior worked out at Goodlife. Afterwards, UC1 revisited the idea of himself using steroids. He asked Cst. Senior about the price of a “cycle”. Cst. Senior responded, "How should I know?" UC1 stated, "You're the gym guy." Cst. Senior then mentioned that he used to know someone - "meatheads" - a few months prior, who could get steroids. They had a general discussion about different steroids. Cst. Senior told UC1 that D-Bol was bad for the body, and that he should improve his diet first, including a proper nutrition plan and protein shakes.
[55] By the beginning of August 2018, the investigation had broadened with the expansion of the Part VI to other individuals. On August 3, 2018, an expansion briefing was held. (The discussion was captured in a PowerPoint, located at Tab 16 of the Crown Exhibits on Entrapment – Exhibit 1). D/S Salhia considered this to be the “second phase” of the investigation and included looking into the trafficking of steroids, the role of Danny Iandoli and Gordon Broadhead, and the “Greenhouse” folder. D/S Salhia stated that there was a bit more focus on organized crime given what was found in Cst. Senior’s phone. It was explained to the investigative team that some photos found in Cst. Senior’s phone suggested an illicit cannabis production and trafficking ring, especially as it related to Danny Iandoli and Gordon Broadhead. Further, some photos suggested that Gordon Broadhead was associated to an outlaw motorcycle gang. Photos also showed the history between Cst. Senior and Gordon Broadhead, as in some photos they appeared younger suggesting they had known each other for a number of years. It was also pointed out that Nancy St. Gelais was a phone contact of Cst. Senior. She was an OPP officer and in a relationship with Gordon Broadhead. She was ultimately charged with unauthorized use of a computer, unrelated to Cst. Senior. There was a finding of guilt and an absolute discharge.
[56] D/S Salhia testified in relation to other significant events that occurred in August and early September, which can be summarized as follows:
a. August 5, 2018 - Det. Coulson created an IAR setting out data extracted from Cst. Senior’s phone related to traffic tickets. (Tab 17 of the Crown Exhibits on Entrapment – Exhibit 1) Photographs of defendant’s trial notifications, summonses, ownerships, and insurance slips were found in relation to four individuals. D/S Salhia believed this to be evidence of obstruction of justice. There was a background check performed on all of these tickets and investigators concluded that, on some occasions, Ms. Petrolo obstructed justice on behalf of Cst. Senior.
b. August 12, 2018 - A daily report was prepared which came to the attention of D/S Salhia. He learned that Cst. Senior had sent a pornographic video to three different women he was having a relationship with that created a falling out between him and the women. Ms. Wafer messaged Cst. Senior stating, “Cathy and I messaged your wife”.
c. August 14, 2018 - D/S Salhia received information from Det. Ladouceur, handler for UC1, that Cst. Senior was looking to draft an intelligence report about a female drug dealer. This was unanticipated from the point of view of D/S Salhia. In an IAR dated August 14, 2018 (Tab 19 of the Crown Exhibits on Entrapment – Exhibit 1), Det. Ladouceur shared information about UC1’s objectives and about this information. The objectives on August 14, 2018 were:
• To continue to build rapport and trust with Police Constable Richard Senior #1553 through common ground.
• To further rapport building to include outside of work activities such as attending the gym.
• To utilize an investigative technique in order to implement future stimulation with Police Constable Richard Senior #1553 utilizing an undercover operator as a confidential human source.
D/S Salhia stated, “I mean in any undercover operation, it’s important to develop a relationship and a rapport with the intended target, otherwise it is unlikely to work if there is no trust there.” There was no objective on that day in relation to preparing or filing an intelligence report.
d. August 16, 2018 – D/S Salhia received information related to Michael Vigliotti. UC1 reported that Cst. Senior had identified a friend of his “Mike” or “Lips”, believed to be Mr. Vigliotti, and that the friend was a cocaine trafficker. Investigators were also aware of the nickname of “Lips”. This was relevant to D/S Salhia in that this was the first time there was any mention of cocaine, not that Cst. Senior was involved, but that one of his associates was involved. Cst. Senior had also indicated to UC1 that Mr. Vigliotti felt he was being followed by police covertly and provided Cst. Senior with a description of one of the surveillance officers. Cst. Senior had advised Mr. Vigliotti who he thought that surveillance officer was. This was significant to D/S Salhia as it demonstrated that Cst. Senior was sharing information to suspected organized crime figures.
On that same day, a draft intelligence report related to drug trafficking involving Sherry Wafer and her family, with no specific attribution, was provided to D/S Salhia. According to D/S Salhia, he believed that Cst. Senior was looking to create a document in which the nature of the information was not trustworthy, as it was attributed to an informant that did not exist. It was important to D/S Salhia to see what was contained in the report. The photos in the initial draft were the same photos that were contained in Cst. Senior’s phone. That was relevant to D/S Salhia, as it was information Cst. Senior was in possession of, yet the report referred to a confidential human source providing the information. The content of the report was also important, as there was evidence to believe Ms. Wafer and her mother were trafficking in controlled substances. Some of the information was later verified. Sherry Wafer was charged with drug offences which remains before the court.
The preparation of this draft and the information about Michael Vigliotti was also summarized in an IAR. (Tab 20 of the Crown Exhibits on Entrapment – Exhibit 1).
e. August 21, 2018 – D/S Salhia learned from D/S Bedford that Cst. Senior had submitted a final intelligence report on Sherry Wafer and family. Again, the photos in the report stood out immediately, as they had been previously captured by investigators during the extraction of Cst. Senior’s phone. These photos had been housed in the “Sherry L” folder. At the time, D/S Bedford was managing all information that was being sent by Cst. Senior, such as information Cst. Senior received from Henry. D/S Bedford was to maintain the information coming in from Cst. Senior and direct it to D/S Salhia. As for email communication, sometimes D/S Salhia would suggest how to craft an email, and sometimes it was D/S Bedford on his own, however, the investigative objectives would have come from D/S Salhia.
f. August 23, 2018 – D/S Salhia learned from D/S Bedford that Cst. Senior had submitted the correct YRP form as it related to confidential informant information, however, he neglected to put in the informer’s personal information. The emails back and forth between D/S Bedford and Cst. Senior were at D/S Salhia’s direction. According to D/S Salhia, the thought process in directing Cst. Senior to fill in the paperwork was that an informant must be identified prior to payment, so to complete the process and payment, the paperwork had to be filled out correctly in order to identify who would be getting paid as per procedure. Eventually, D/S Salhia learned that Cst. Senior had completed the paperwork and identified the informant as David Broadhead. According to D/S Salhia, this was significant. Gordon Broadhead, David Broadhead’s brother, had started to feature heavily in the investigation after discovery of the “Greenhouse” folder. It appeared that Cst. Senior and Gordon Broadhead had a relationship and a history, determined from photos located in the phone and a CPIC query Cst. Senior conducted in 2007. Also, the GPS coordinates for Cst. Senior at the time of the query in relation to Gordon Broadhead, placed him at the residence of Broadhead, suggesting they were together at the time of the query. Finally, this was significant because of the email to D/C Fiore in 2012, outlining two suspects for the holdup, neither of which was David Broadhead, who was the actual suspect and had been brought in for an interview/interrogation at the end of January 2012.
g. August 25, 2018 – Cst. Senior had been provided cash to pay “Henry” as an informant and was to meet Henry to complete payment. D/S Salhia understood they would be meeting alone at an adult entertainment club in Mississauga, in fact, D/S Salhia directed for UC1 not to attend. He testified that it was an opportunity to remove UC1 from the operation as it related to the payment and to ensure that UC1 was insulated. D/S Salhia wanted to slowly remove UC1 from meetings and to allow Cst. Senior and Henry to be alone, as the objective was to have Henry ask Cst. Senior to query a licence plate. D/S Salhia wanted Cst. Senior to make decisions on his own without consulting UC1. The objective for Henry was to refuse the $1000 payment, and after the refusal, to discuss trying to find an address for a target locker. The ultimate objective was to see if Cst. Senior would query a plate at the behest of Henry, posing as an organized crime figure. By the refusal of the money, Henry would then be provided an opportunity to ask for a plate query. In an IAR dated August 25, 2018 (Tab 21 of the Crown Exhibits on Entrapment – Exhibit 1), the objectives outlined were:
Objectives:
• To continue to build rapport and trust between Police Constable Richard Senior #1553 and Detective Henry of the Royal Canadian Mounted Police.
• To ascertain if Police Constable Richard Senior #1553 would follow procedure when handling the $1000 payment.
The scenario in relation to the payment was completed on that day. As for the results of the deployment on that day, one of the following objectives was attained:
Detective Henry of the Royal Canadian Mounted Police continued to build rapport and advised that he was not involved in firearms only money and drugs.
When asked about this objective, D/S Salhia stated that his direction was for Henry not to pose as a violent figure. The reason for this direction was to ensure that Cst. Senior did not feel influenced, scared or obligated to query the plate at the behest of Henry out of fear. According to D/S Salhia, that direction was given throughout the operation.
h. August 27, 2018 – There was a stimulation exercise in which Det. DiPlacido left behind an intelligence report identifying Michael Vigliotti. D/S Salhia learned that Cst. Senior identified Mr. Vigliotti in the report as “Lips” and indicated to UC1 that he spoke to “Lips” over the weekend about a Part III ticket. Cst. Senior and UC1 talked about “Chinese gear”. Cst. Senior told UC1 that he would ask UC2 next time if he could “hook you up some Chinese gear” as he had forgotten to ask UC2 at the last meeting, but had thought about it. Cst. Senior talked about steroids from China, and how the “amazin[g] stuff is fuckin’ uh Russia and India”.
i. August 30, 2018 – Cst. Senior texted Cst. Timur Timerbulatov, and separately texted George Papoutsos, about steroids. Cst. Timerbulatov asked Cst. Senior to help him find out the cost of certain steroids. Cst. Senior reached out to George Papoutsos and relayed the information back to Cst. Timerbulatov. Cst. Senior and Cst. Timerbulatov then had a text exchange about tablets versus injectable products. Cst. Senior confirmed Cst. Timerbulatov's order and relayed that order to George Papoutsos.
Also on this date, there was to be a deployment of Henry to meet Cst. Senior. Henry would provide information for a storage locker to Cst. Senior. Henry was going to introduce the idea of having a plate queried. Henry was given direction to indicate that the plate he wanted queried was to locate another criminal and Henry was going to “rip” the storage locker that had drugs belonging to him. Henry was given specific directions when referencing the “rip” that violence would not be used. D/S Salhia wanted to ensure that Cst. Senior did not feel obligated due to fear and if he was to query the plate it would be on his own terms without duress. The objectives for this exercise were memorialized in an IAR authored by Det. Ladouceur (Tab 22 of the Crown Exhibits on Entrapment – Exhibit 1). Cst. Senior and Henry met at For Your Eyes Only. UC2 expressed frustration because he could not get an address in relation to a locker for his rival, and said that he had been working on it for "almost a month" so that he could "rip his stash". UC2 asked Cst. Senior to query the licence plate for him and give him the information. He said the target was the "runner" for his rival, and that the plate belonged to his target's daughter. Cst. Senior said he could do it, but it could get him into trouble. He suggested that Henry go to the MTO or put a GPS tracking device on the vehicle. Cst. Senior later asked for the plate and said that he would see what he could do.
Also on that day, UC2, at D/S Salhia’s direction, was to generate a conversation about steroids with Cst. Senior. D/S Salhia was aware of the intercepted conversations between Cst. Senior, George Papoutsos and YRP officer, Timur Timerbulatov. UC2 complimented Cst. Senior on his physique in order to move the conversation toward steroids. In response, Cst. Senior asked UC2 if he could get steroids, as he was looking for steroids for UC1. UC2 responded that he might have connections, but it would have to be a bulk purchase. UC2 stated that he would not make any money from the transaction because he was a friend.
(See IAR – August 31, 2018 – Tab 23 of the Crown Exhibits on Entrapment – Exhibit 1)
j. September 4, 2018 – D/S Salhia learned from a daily report that Cst. Senior was going to meet George Papoutsos about steroids. D/S Salhia stated that he had reasonable grounds to believe that George Papoutsos was conspiring with Cst. Senior to traffic steroids and that he was a supplier. He also learned of a coded conversation between Cst. Senior and Fabian Wills in relation to the Sherry Wafer intelligence report.
k. September 6, 2018 - Cst. Senior texted Cst. Timur Timerbulatov, and separately texted George Papoutsos, about steroids. (See Tab 24 of the Crown Exhibits on Entrapment – Exhibit 1) Cst. Senior coordinated picking up money from Cst. Timerbulatov that evening and arranged to meet with Mr. Papoutsos the next day. Mr. Papoutsos asked Cst. Senior to run his own license plate to ensure there were no complaints against him before he filed a report. Cst. Senior asked for the license plate, and said he would have a car swing by the house. Later that night, Cst. Timerbulatov texted Cst. Senior that he was at Cst. Senior’s home. Cst. Timerbulatov queried Mr. Papoutsos’ licence plate. Cst. Senior texted Mr. Papoutsos that he was “clean”. This was notable as it was another example to add to D/S Salhia’s belief that Cst. Senior was querying plates for purposes outside the scope of his lawful duties. George Papoutsos was believed to be trafficking steroids, therefore, this was evidence that Cst. Senior was willing to query a plate for someone involved in trafficking substances.
l. September 8, 2018 – D/S Salhia sent an email to the undercover handler regarding direction about an undercover operation that was to occur in relation to two payments, one to Henry of $1000 and one to David Broadhead for $300. D/S Salhia agreed that Cst. Senior never asked for money. According to D/S Salhia, the Broadhead payment was followed up on to verify whether information came from David Broadhead and, if not, to uncover what Cst. Senior was going to do with the money. As for the Henry payment, it was an opportunity toward the end goal to see if Cst. Senior would query a plate for Henry. Henry would be offered payment for the information he had provided. Henry was told not to take money, but when the opportunity presented itself to ask for a licence plate query rather than money. Henry’s refusal of the money also supported his cover story, as he was supposedly a mid-level drug trafficker and money was not an object. Also, according to D/S Salhia, this was to be an integrity test of Cst. Senior. There were allegations of corruption. There were only two options. He would keep the money or return the money to YRP.
m. September 10, 2018 – A meeting between Henry and Cst. Senior occurred at Milestones. D/S Salhia was one of the handlers on that day. There was a conversation between UC2 and Cst. Senior about querying the plate. Further, Cst. Senior asked UC2 about the quantity of steroids that he could get. UC2 said the minimum was 50 vials. They discussed price. Cst. Senior said he had a friend named "George", who was a bouncer, and wanted to know if UC2 was interested in selling "product" to "George". UC2 said he did not know "George" but he would not turn down a business opportunity and would meet "George" if Cst. Senior trusted him. D/S Salhia testified that this discussion about “product” for George, which he understood to be a discussion about cocaine, was the most significant thing from that evening, which caught D/S Salhia off guard. This was potentially new criminality being introduced by Cst. Senior. Henry was not aware of anything in the investigation to do with cannabis and was not aware of anyone named George. As for drugs, Henry was only aware of potential steroid trafficking. Neither UC1 or UC2 was given any instruction to raise cocaine with Cst. Senior. D/S Salhia pointed to the IAR prepared on September 10, 2018 (Tab 25 of the Crown Exhibits on Entrapment – Exhibit 1) authored by Det. Ladouceur, which provided the objectives for that day, none of which related to cocaine. According to D/S Salhia, this introduced a new dimension to the investigation, in that there were reasonable grounds to believe that Cst. Senior was potentially involved in the trafficking of cocaine.
n. September 11, 2018 – D/S Salhia learned on September 11, 2018, from the daily summary prepared for September 10, 2018, that Cst. Senior had met with Fabian Wills in his vehicle. Cst. Senior was intercepted telling Fabian Wills to forge a signature, David Broadhead’s signature, on the YRP payment form. There had been no objective contemplated by investigators in this regard.
o. September 12, 2018 – The only objective for UC1 for this day was to continue to build rapport. UC1’s role was diminishing as the focus had turned to querying of the plate and trafficking of cocaine. There was no objective for UC1 to involve Cst. Senior in any sort of robbery. (Tab 27 of the Crown Exhibits on Entrapment – Exhibit 1)
D/S Salhia learned through the handler that Cst. Senior was trying to have UC1 query the plate and UC1 refused to do it. UC1 did this on his own. This was not part of design. There was also discussion between UC1 and Cst. Senior about buying bulk steroids from Henry. D/S Salhia also learned that Cst. Senior had ultimately queried the plate provided by Henry. At the time of the query, investigators intercepted the photo of the query on Cst. Senior’s phone.
D/S Salhia was notified by Henry’s handler that Cst. Senior had contacted Henry and wanted to meet. He drew the inference that the reason for the meet was to share the plate. The objectives for the evening at D/S Salhia’s direction were:
• Get information from license plate “AN51769”. Pay compensation if needed.
• Discuss why SENIOR is trustworthy to go to the next level of business.
• Discuss business with “George”, provide pricing for cocaine if requested.
• If SENIOR asks about steroids, contact your contact for pricing.
(See Tab 28 of the Crown Exhibits on Entrapment – Exhibit 1)
At the meeting with Henry on that day, Cst. Senior shared the licence plate query with Henry.
[57] According to D/S Salhia, by this point, the investigative team had met its goals and objectives. They were satisfied that Cst. Senior had committed the offences of unauthorized use of computer and breach of trust. Discussions were happening about arrest and takedown. UC2’s role was completed. He returned his undercover phone to his handler for extraction which was done. The investigation was just about concluded.
[58] On September 15, 2018, D/S Salhia had possession of UC2’s cell phone and had “minor dialogue” with Cst. Senior posing as Henry. D/S Salhia said to Cst. Senior, “Everything went well no problems I got what's rightfully mine...I'll have something for you soon". He did this to convey to Cst. Senior that Henry was successful in obtaining the drugs. Cst. Senior replied, "The scales are balanced". This was extremely concerning to D/S Salhia, as the purpose of the querying was for Henry to conduct a drug rip and Cst. Senior was aware of that purpose. D/S Salhia thought it was important to continue the dialogue between Cst. Senior and Henry because if it “went dark”, it would have been highly suspicious and compromised takedowns. Further, D/S Salhia also wanted to continue the dialogue about cocaine, as he had reasonable grounds to believe he was involved in trafficking. It became an objective and so he continued the dialogue. He was also looking for potential co-conspirators.
[59] After September 10, 2018, UC1 was to continue to maintain a rapport and relationship with Cst. Senior leading up to the takedown. With respect to steroids, if the opportunity presented to further that, UC1 was to explore it. However, according to D/S Salhia, the investigation was really done. They had met their goals and objectives, he was satisfied with the results, and the next step would be takedown.
[60] However, on September 17, 2018, according to D/S Salhia, he learned what he considered to be “fairly significant” information, which he summarized as follows:
a. There was further discussion about steroid trafficking. Cst. Senior asked UC1 to provide a list of steroids that he wanted to purchase. $400 was discussed as a price. It was clear that the steroids were not coming from Henry but from someone else. Cst. Senior showed UC1 “stacks” on his phone;
b. There was a discussion of extortion involving Cst. Senior and UC1. As part of the cover story, UC1 indicated that someone owed him a significant amount of money. This was part of the backstory to establish perceived criminality. Cst. Senior had a conversation with UC1 about collecting the money;
c. There was a discussion about conducting a robbery at a warehouse. There was discussion of finding co-conspirators to assist.
According to D/S Salhia, that was the first time that he was made aware of any information of Cst. Senior being involved in a robbery. As of this day, that was not an objective. In fact, the objectives were concluded as of the querying of the licence plate. They were preparing for takedown. As a result of learning this information, D/S Salhia directed UC1 to continue the dialogue to determine the veracity of what was being discussed, in other words to see if this was something being seriously considered by Cst. Senior. He said it would be neglectful of investigators to dismiss the utterances of Cst. Senior, as he was entertaining some fairly serious criminal offences. There was an obligation to continue to investigate. The information at that time gave D/S Salhia reasonable grounds to suspect that Cst. Senior was looking to commit a robbery; therefore, it was prudent to explore this serious allegation. (See Tab 29 of the Crown Exhibits on Entrapment – Exhibit 1 – IAR for September 17, 2018 where the objective of continuing to build rapport was memorialized.)
[61] Also on September 17, 2018, D/S Salhia learned information that Cst. Senior was communicating with Adele Marsala, an employee at the Ministry of Transportation. He was inquiring whether she was in a position to query licence plates on his behalf. D/S Salhia did not know what this was about. Ms. Marsala, or her husband, had been identified early on as a suspicious query conducted by Cst. Senior. Investigators confirmed that she did work at the Ministry of Transportation. Ms. Marsala confirmed that she would be able to run a plate for him.
[62] The discussions about the robbery between UC1 and Cst. Senior continued over numerous days. Many details of the “operational plan” were discussed. The objective was to verify the veracity of the offence being proposed. D/S Salhia came to believe that Cst. Senior was being very serious and was actually planning to commit this robbery. There were discussions on September 18, 2018 about “going in heavy” – as in armed with firearms. D/S Salhia had not given any direction about firearms being involved in this investigation. Also, during this same time frame, D/S Salhia learned that Cst. Senior was going to traffic steroids to UC1 and he believed the steroids were coming from George Papoutsos.
[63] On September 19, 2018, Cst. Senior provided steroids to UC1 in a Ziploc bag. The bag had "George" written in black sharpie. Inside were three liquid vials and a box of tablets of anabolic steroids.
[64] In September, while the planning was going forward, D/S Salhia gave specific direction to the handlers that anything related to Cst. Senior and the robbery was to be conveyed to him in real time, either by phone call, email or in person. He continued to read the daily summaries. He stated that it became a priority for him to be able to assess and balance risks, investigative tasks and make a determination as to the true intent of Cst. Senior. In order to do this, he needed to be updated as soon as possible. D/S Salhia did not want to compromise the investigation as a whole. They had met their objectives. He did not want to put any unnecessary risk on the undercover officers. As it began to get real for him and he believed the intention was genuine, he was balancing the risk to public safety, to investigators and to the investigation at large to ensure the other components were still managed accordingly. D/S Salhia explained that one of the techniques employed was identifying an actual location of the warehouse. He stated that he needed to ensure this information was carefully controlled. He had concern that if the information was leaked to Cst. Senior in a manner that he believed the drugs were there at a certain time, he would commit the robbery independent of UC1. D/S Salhia also had to assess how far they would take this. In order to satisfy the attempt, he needed to determine how far to let this go to get beyond mere preparation, and this had to be balanced with the safety of the public. According to D/S Salhia, there was no objective or encouragement to utilize a firearm in the context of this robbery. He said that the last thing he wanted to do as the lead investigator was to introduce any firearms. He did not want to create a scenario that would lead to a shoot out between police officers.
[65] On September 23, 2018, UC2 was re-deployed to meet Cst. Senior and discuss his cover story about going to China, that he had a good seizure for Cst. Senior, location to be determined, but it would be a warehouse. The location would come in the following week or two, in the first call, but at that point nothing would be inside. Henry indicated that his second call to Cst. Senior would disclose that the location would have drugs and cash. An IAR at Tab 30 of the Crown Exhibits on Entrapment – Exhibit 1 memorialized the objectives for that day:
Objectives:
Continue to build rapport with SENIOR
Advise SENIOR that you will have warehouse information for him in the next two weeks. Further that there is nothing inside at the moment, you will advise when it does contain drugs and money, and there maybe a couple of lookouts whom are not a threat.
If SENIOR asks you to assist in committing a robbery tell him you will not participate.
D/S Salhia indicated that the thought process behind the third objective was that Cst. Senior had indicated to UC1 that he was looking for people to assist with the robbery, and it was important to D/S Salhia that Henry not be involved, as this would require Cst. Senior to make a decision about whether he was serious about moving forward.
[66] After the meeting happened, D/S Salhia learned that Cst. Senior "ran a hypothetical" by UC2 - if a "cowboy crew" happened to take 5 kgs out of 10, and sell it back to UC2, would he be interested. UC2 said that he did not know and would have to think about it, but he would not turn down business. UC2 asked what Cst. Senior's involvement would be. Cst. Senior said he would be the middleman. D/S Salhia had not given any direction about this idea. This was not an objective. Cst. Senior’s interest in this conversation strengthened D/S Salhia’s belief that Cst. Senior was involved in the trafficking of cocaine.
[67] According to D/S Salhia, on September 26, 2018, UC1 gave Cst. Senior an opportunity to exit the planned robbery and Cst. Senior refused. It was part of D/S Salhia’s direction to UC1 that, when the opportunity presented itself, UC1 was to convey to Cst. Senior that he did not have to go through with it. D/S Salhia wanted to make sure Cst. Senior did not feel pressured from UC1. Further, UC1 had been given direction to identify co-conspirators and that UC1 would be open to Cst. Senior’s suggestion in relation to third parties. Also, on September 26, 2018, D/S Salhia learned of the conversation on September 24 in which UC1 and Cst. Senior had their first discussion about specifically involving shotguns being taken from the station for the robbery. (ASF#3, page 1801)
[68] On September 29, 2018, Cst. Senior met Michael Vigliotti. He mentioned “a connect to coke”, a “shipment” that “the guys wanna offload...for thirty-four each un-stepped on not stepped on”. Mr. Vigliotti replied, “Uncut.” Cst. Senior said, “That’s not stepped on brother not even”. Mr. Vigliotti said, “Like ninety plus”. Cst. Senior said, “Brother like untouched that's what I was the conversation that was”. Cst. Senior could also be heard saying, “remember I was telling you how much of a heat score,… church, home, bed, brother, I came across a file, your name is all the fuck over it, by accident, I came across the file, I’m telling you now, church, home, bed, work, that’s it, because they’re all over you.” Cst. Senior then offered to “set up a meet” with the “guys who run the files” to see if Mr. Vigliotti could give them something decent, in an effort to “keep you out of the heat ...” (ASF#3, pages 2327-2329)
[69] On October 1, 2018, D/S Salhia (posing as Henry) texted the address of the warehouse to Cst. Senior, but indicated that the warehouse was not ready yet and that he would have more details in the next few days.
[70] As previously stated, D/S Salhia was made aware that Cst. Senior had expressed an interest in taking a YRP shotgun and using it for the robbery. On October 4, 2018, it came to his attention that Cst. Senior told UC1 that another officer had left a shotgun in one of the cruisers which created an opportunity for Cst. Senior to obtain the firearm without being detected. In cross-examination, D/S Salhia stated that he did not direct an officer to leave a shotgun in a vehicle as part of any stimulation exercise. The fact that another officer had left a shotgun in a police vehicle was brought up to command.
[71] In the late afternoon of October 4, 2018, D/S Salhia (posing as Henry) texted Cst. Senior to tell him that the “spot will be ready to go Tues or Wed at the latest brotha”. Also, Cst. Senior provided information on a second licence plate at Henry’s request. This query had actually been performed by UC1 and shared with Cst. Senior earlier that day. After providing the queried plate information to Henry, D/S Salhia understood from the conversation that Cst. Senior wanted $1000. (See ASF#3, pages 475-476).
[72] On October 6, 2018, D/S Salhia (posing as Henry) was in conversation with Cst. Senior about the cocaine in the warehouse. Cst. Senior agreed to give him the cocaine for $30,000 per kg. According to D/S Salhia, this strengthened the belief that Cst. Senior was being serious about committing the robbery, given that he was negotiating upwards of a $300,000 drug transaction with Henry for the contents. D/S Salhia met with Staff Sgt Bruce Valentine, of the Emergency Response Unit. There was a discussion about getting inert rounds for various firearms, although there were no plans of how to get those to Cst. Senior. At that time, a decision had not been made about the timing of the arrest. No inert rounds were ever created or provided.
[73] On October 9, 2018, Cst. Senior and UC1 discussed the warehouse plan over breakfast. Cst. Senior confirmed that the shotgun was still in the YRP Tahoe. UC1 asked if he wanted to get the shotgun now. Cst. Senior said, "hundred percent", since Henry could call today or tomorrow. They agreed to take the shotgun out of the truck that day. They agreed the shotgun would have to be back at the station before the weekend. UC1 testified, although it cannot be heard on the audio, that Cst. Senior suggested that UC1 take the shotgun out of the Tahoe and place it in his police car. UC1 declined and suggested that they do it later.
[74] Cst. Senior and UC1 met at the LA Fitness parking lot shortly after noon. UC1 arranged for the rental van to be dropped off before he arrived. UC1 parked next to the van. Cst. Senior stopped the YRP Tahoe near them. Cst. Senior and UC1 spoke. They looked around to make sure no one was watching. Cst. Senior then unlocked the shotgun from the truck using the keypad mechanism, held it discreetly and placed it into the open trunk of the rental van. UC1 covered it with a blanket and locked the van. They left the parking lot. At the direction of D/S Salhia, Cst. Ricky Ho attended, opened the trunk of the rental van, and saw the shotgun. It was a loaded, operable Remington Model 870p 12-gauge pump action shotgun with black synthetic stock, the property of the York Regional Police, labelled "S17" (for shotgun #17) on the stock, covered with black clothing. The chamber was empty. The shotgun was loaded with four live shotgun shells. The side saddle was loaded with two live shotgun shells. Cst. Ho, at the direction of D/S Salhia, removed the firing pin mechanism of the shotgun and placed the now-inert shotgun back into the trunk of the rental van.
[75] Shortly thereafter, Cst. Senior was arrested. Others were also arrested and charged. D/S Salhia testified that there was no plan to do the takedown that day, rather the next day, but it was triggered unexpectedly when the firearm was placed in the van.
Context of this Case
[76] The Applicant submitted that the entire investigation took a problematic turn towards entrapment with the introduction of undercover operators. This court does not agree that the introduction of undercover operators necessarily takes this investigation down a path toward entrapment. Undercover officers are used frequently in police investigations. The involvement of undercover officers is often very necessary in police investigations. To suggest that this entire investigation took a problematic turn towards entrapment by involving undercover operators is wrong in this court’s view.
[77] The Applicant goes further, however, to submit that the timing and incorporation of UC1 and his “cover story” is particularly troubling. It was submitted that UC1 was purposely placed at Cst. Senior’s side two weeks before UC2’s deployment. From the initial deployment on June 27, 2018 to the first interaction between Cst. Senior and UC2 on July 12, 2018, the most recurring objective given to UC1 was to “build rapport”. The Applicant submitted that UC1 did his best, throughout this investigation, to “cozy up” to Cst. Senior. They worked together, drove together, ate meals together, went to the gym together, talked about their partners, affairs, kids, family, etc. The entire relationship, the Applicant submitted, played on the importance of the buddy/officer partner dynamic and went a step further – the “crooked buddy cop”. UC1 regularly tried to convince Cst. Senior that they were a “band of brothers”. UC1 did not observe any misconduct or criminality from Cst. Senior in the first nine weeks. Regardless, he continued to paint the picture of being “dirty” and did everything he could to make sure Cst. Senior trusted him implicitly before ever “providing an opportunity” for the commission of any offence.
[78] With respect to UC2, the Applicant submitted that UC2’s cover story, as a mid level Asian organized crime figure, involved in the importation of cocaine from China, was purposely constructed to leave the door open to “investigate” Cst. Senior for offences above and beyond breach of trust and unauthorized use of a computer, offences that could be suggested by his “partner”. In his rapport building interactions with Cst. Senior, as heard in the intercepts, Henry regularly referred to the drug trade, the amount of money he made, and wanting to develop a good working relationship with Cst. Senior. The Applicant submitted that Cst. Senior was faced with this information on one side, and on the other side, UC1 regularly reminded Cst. Senior of his financial woes and his willingness to break the rules.
[79] The Applicant submitted that this context is fundamental to the entrapment application and is directly relevant to both the first and second branch of the Mack analysis.
[80] This court has carefully considered the entire circumstances of this investigation and how it developed. There is no question that the two undercover officers, at the direction of D/S Salhia, had the goal of building rapport with Cst. Senior. The undercover officers played the role of Cst. Senior’s friend and confidante. UC1 did, at times, provide Cst. Senior with advice or guidance in the context of policing, however, it is of note that Cst. Senior returned the favour to UC1 on occasion in areas where he had more knowledge or experience. From the many hours of intercepts, while Cst. Senior does jokingly refer to UC1 as his “coach” on occasion, it is clear that these two officers were operating on an even playing field in their interactions with one another. There is no evidence that Cst. Senior felt intimidated, pressured, or out-ranked by UC1.
[81] As for the effect the undercover officers had upon Cst. Senior, it is the view of this court that this is overstated by the Applicant. Several things must be remembered:
a. At the time of this investigation, Cst. Senior was an officer with nearly 15 years of experience – years of experience similar to that of UC1. Cst. Senior and UC1 were at the same rank, both constables, meaning he had no authority to direct or give orders to Cst. Senior.
b. Cst. Senior had received standard police training, including six months in the Criminal Investigation Bureau.
c. In the many hours of intercepted communications, Cst. Senior demonstrated to be a knowledgeable police officer in many areas. Cst. Senior and UC1 sought advice and guidance from one another on various topics as one would expect of partners working together in any field.
d. Cst. Senior did not present as a vulnerable target. The many hours of intercepts show him to be a person willing to speak his mind and express his views and opinions.
e. Cst. Senior did not have a long-term relationship with UC1, or UC2 for that matter. While UC1 and Cst. Senior may have met in passing, their relationship as partners had only commenced at the end of June. He had only worked with him for just over three months when the arrest occurred. As for UC2, from the perspective of Cst. Senior, Henry was a mid level Asian organized crime figure, involved in the drug business, who was providing him with information of criminal activity of others upon which the police could act. Cst. Senior and Henry met at the beginning of July and on less than ten occasions prior to the arrest.
f. There is no evidence that systemic racism or institutional racism within the YRP played any part in this investigation or played any part in the behaviour of Cst. Senior. Such a suggestion should not be made lightly. In this case, there was absolutely no evidence that racism played any part.
g. Long before Project Tadeu commenced, Cst. Senior ran some queries for friends and/or associates. The following circumstances are of note and were agreed to as facts in this trial (Statement of Agreed Facts – CPIC and Versadex Queries [ASF#4]):
i. Lauren Azeez was a friend of Cst. Senior. In 2016, she asked him to “run” her name and her ex-boyfriend’s name, Stephen Hatzes, on a police database. She explained that she did this “out of boredom”, “for fun.” Some weeks later, Cst. Senior told her about the results of his queries. She recalled that he referred generally to her ex-boyfriend’s traffic tickets and to a specific occurrence that had taken place at Ms. Azeez’s 22nd birthday party at an establishment called Marlowe’s. An offline audit of Cst. Senior’s CPIC queries established that he queried Lauren Azeez on October 25, 2016 at 9:23 a.m., followed by Stephen Hatzes on October 25, 2016 at 9:37 a.m. and 10:06 a.m. The queries were referred to and reproduced in ASF#4, paragraph 1 and Folder 1 (Azeez and Hatzes), pages 5-7.
ii. Danny Iandoli owned and operated Enviro Truck Wash. Danny Iandoli is related to Domenic Iandoli. Steve McCue was acquainted with Cst. Senior. An audit of Cst. Senior’s CPIC queries established that he queried:
• Danny Iandoli on November 17, 2016 at 10:50 a.m.;
• Domenic Iandoli on November 17, 2016 at 10:53 a.m.;
• Derek Iandoli on November 17, 2016 at 10:54 a.m.; and
• Steve McCue on October 16, 2017 at 08:47 a.m.
iii. Forensic examination of the Samsung phone seized from Cst. Senior, and searched pursuant to a general warrant, revealed a folder entitled “Greenhouse”. It contained various photos of what appeared to be a marijuana grow operation, large quantities of cash, green trucks with the name “Enviro Truck Wash”, license plates, and several pictures of a police terminal containing information on various persons, including those listed above, produced as the result of a CPIC or Versadex query. The queries were referred to and reproduced in ASF#4, paragraphs 6-8 and Folder 5 (Greenhouse), pages 20-103.
iv. Cst. Senior was in an intimate relationship with Sherry Wafer. An audit of Cst. Senior’s CPIC queries established that he queried her on December 6, 2017 at 9:29 and 9:30 a.m. This query was referred to and reproduced in ASF#4, paragraph 5 and Folder 4 (Wafer), pages 18-19.
v. Candace Fraser knew Cst. Senior, having met him in Toronto many years prior. She resided in Alberta. Despite not having seen him in person in over 10 years, she had kept in touch with him, by phone and text. At some point, Ms. Fraser started dating a man named Yaser Mansour, and during a conversation with Cst. Senior, she asked him if Mr. Mansour was “legitimate.” She recalled that Cst. Senior told her that Mr. Mansour was “ok”. She also asked for Mr. Mansour’s address, which she recalled Cst. Senior provided her. An audit of Cst. Senior’s CPIC queries established that he queried the name Yaser Mansour on his police mobile working station on February 21, 2018 at 10:36 a.m. Forensic analysis of the Samsung phone seized from Cst. Senior and searched pursuant to a general warrant revealed a folder titled “Candace F” that contained an image of a CPIC query of Yaser Taisir Mansour, with his date of birth, address in Edmonton, and an associated cell phone number. This query was referred to and reproduced in ASF#4, paragraph 2-3 and Folder 2 (Fraser and Mansour), pages 8-10.
h. In the course of the CPIC audit, investigators determined that there were approximately 150 suspicious queries conducted by Cst. Senior throughout his career, many of which related directly or indirectly to people he associated with, some of whom were connected to ongoing police investigations or were suspected of being members of, or having ties to, organized crime.
i. Cst. Senior was in a romantic relationship with someone he believed to be a cannabis trafficker (Sherry Wafer).
j. Cst. Senior was in frequent contact with someone he believed to be a cocaine trafficker (Michael Vigliotti).
k. Cst. Senior possessed a suspicious “burner phone” with only 4 contacts (none of which were associated to women with whom he was having affairs).
[82] While this court certainly agrees that context is essential to a determination of this entrapment application, based on the totality of the circumstances, this court does not accept the view of that context as presented by the Applicant.
Specific Counts for which Cst. Senior was found guilty
[83] In its earlier judgment, this court grouped the allegations and charges into seven different events. This court has now grouped the events into six events, combining count 2 with counts 1 and 3, given the factual overlap. The grouped events, for which Cst. Senior was charged and found guilty, are as follows:
a. The Confidential Source Documents - utter forged document (count 2), and the Confidential Human Source Payments and Receipts – theft under $5000 (count 1) and utter forged document (count 3) – Cst. Senior was alleged to have authored and submitted an intelligence report about his ex-intimate partner, Sherry Wafer, and her family, by falsely attributing his personal knowledge to another individual, David Broadhead. Cst. Senior was alleged to have kept money that he was given to pay confidential human sources; specifically, Henry Wong, posing as a confidential human source, consisting of two payments of $1000 each, and David Broadhead, the source name he placed on an intelligence report related to Sherry Wafer and family, consisting of one payment of $300. The total amount of the theft was therefore alleged to be $2300. Further, Cst. Senior was alleged to have uttered a forged document in submitting payment receipts signed by Henry in circumstances where Cst. Senior kept the money, and in submitting a payment receipt forged by his friend Fabian Wills, by having Mr. Wills place David Broadhead’s signature on the form to indicate Mr. Broadhead had received payment for the information. Cst. Senior was found guilty of count 1, theft, but only as it relates to the $300 payment to the Sherry Wafer source. Cst. Senior was found guilty of count 2, uttering a forged document. Cst. Senior was found guilty of count 3, uttering forged document, but only as it relates to the payment form attributed to David Broadhead.
b. The License Plate Queries – unauthorized use of computer (count 4) and breach of trust (count 5) – Cst. Senior was alleged to have conducted CPIC queries for improper purposes for his friend / steroid dealer, George Papoutsos and for Henry Wong. In relation to George Papoutsos, Cst. Senior was alleged to have arranged through Cst. Timerbulatov to run a licence plate for Mr. Papoutsos and then disclosed this information to Mr. Papoutsos. As for Henry Wong, Cst. Senior was alleged to have run a licence plate for Henry Wong and then took a picture of the results of the query with Henry Wong’s phone. Cst. Senior was found guilty of both counts 4 and 5, but only as it related to Henry Wong.
c. The Drug Warehouse – Cst. Senior was alleged to have planned, and progressed past mere preparation, to rob a drug warehouse that Henry Wong had advised him about, in which he anticipated there would be several kilograms of cocaine and cash (attempted robbery – count 8). In preparation for this robbery, Cst. Senior was alleged to have stolen and placed a loaded YRP shotgun in the back of a rental van as part of that attempted robbery (possess firearm obtained by theft, possess weapon for a dangerous purpose – counts 6 and 7). Further, Cst. Senior was alleged to have offered to traffic the cocaine he expected to find in the warehouse to George Papoutsos, Michael Vigliotti, and Henry Wong (trafficking in a Schedule 1 substance – count 9). Cst. Senior was found guilty of count 6 and 7, possessing a firearm obtained by crime and weapons dangerous. He was found not guilty of count 8, attempted robbery. He was found guilty of count 9, but only as it related to George Papoutsos and Henry.
d. The Intelligence Report – Cst. Senior was alleged to have advised Michael Vigliotti that he was under police investigation. He was alleged to have obtained this information from a fake intelligence report that was brought to his attention by Det. Mike DiPlacido, as part of the undercover operation. (breach of trust – count 10). Cst. Senior was found not guilty of this offence.
e. The Steroids – Cst. Senior was alleged to have trafficked testosterone and steroids to his colleague and friend, Cst. Timur Timerbulatov, and to UC1. (trafficking in Schedule IV substance – counts 11-12). Cst. Senior was found not guilty of count 11 in relation to Timerbulatov. Cst. Senior was found guilty of count 12 in relation to UC1.
f. Improper Use of Police Computers and Disclosure – Cst. Senior, for personal reasons, was alleged to have improperly accessed (count 13- unauthorized use of computer) and disclosed (count 14- breach of trust) confidential information from CPIC and YRP databases. The counts related to queries specified and found in ASF#4 (Exhibit #4). Specifically, with respect to Count 13, the Crown alleged that Cst. Senior used police databases to conduct unauthorized queries on the following people:
• Lauren Azeez and Stephen Hatzes
• Candace Fraser and Yaser Mansour
• Simona Marra
• Sherry Wafer
• Danny Iandoli; Domenic Iandoli; Derek Iandoli; and Steve McCue
With respect to count 14, the allegation was that Cst. Senior disclosed confidential information gleaned from these queries to third parties, specifically to Lauren Azeez about Steven Hatzes, to Candace Fraser about Yaser Mansour, and to Cst. Timur Timerbulatov about Simona Marra and her husband. Cst. Senior was found guilty of count 13, unauthorized use of computer but only as it related to Azeez/Hatzes, Fraser/Mansour, and Simona Marra. Cst. Senior was found guilty of breach of trust, but only as it related to Azeez/Hatzes and Fraser/Mansour.
[84] In determining whether Cst. Senior was entrapped in relation to any of the offences for which he was found guilty, or whether the investigation itself amounted to abuse of process, this court has considered the entirety of the circumstances, including findings of fact previously made in relation to offences for which Cst. Senior was found not guilty.
Forged Confidential Source Documents, Theft of Confidential Source Payment and Forged Payment Form – Count 2 (utter forged document), Count 1 (theft under $5000) and Count 3 (utter forged document)
[85] Cst. Senior was found guilty of having authored and submitted an intelligence report about his ex-intimate partner, Sherry Wafer, and her family, by falsely attributing his personal knowledge to another individual, David Broadhead. Cst. Senior was also found guilty of having kept money that he was given to pay the named confidential human source, specifically, David Broadhead, the source name he placed on an intelligence report related to Sherry Wafer and family, consisting of one payment of $300. Further, Cst. Senior was found guilty of having uttered a forged document in submitting a payment receipt forged by his friend Fabian Wills, by having Mr. Wills place David Broadhead’s signature on the form to indicate Mr. Broadhead had received payment for the information.
[86] Some relevant facts in relation to these events were as follows:
a. On Tuesday, August 14, 2018, Cst. Senior and UC1 were not partnered up, however, they did meet for breakfast. They then went to Woodbine and Steeles to do traffic enforcement with another officer. While doing traffic enforcement, UC1 noticed that Cst. Senior’s demeanour was different. When asked if everything was ok, Cst. Senior explained that he was having an extra marital affair with Sherry Wafer and that his wife found out. Cst. Senior then provided a great deal of information to UC1 about Sherry Wafer and their relationship, including her background, how they met at the gym months previously, problems she had been having with her ex, and that her mother was a drug dealer who moved drugs across the GTA. Cst. Senior told UC1 that he wanted to call CAS to “fuck over” Sherry Wafer. Cst. Senior also expressed that he wanted to do a report on Ms. Wafer. UC1 offered to help Cst. Senior document the information.
b. On that same day, UC1 arrived at the station at 3:42 p.m. He met Cst. Senior there. The interaction with Cst. Senior that followed was captured on Device 1 2018-08-14 15-22-00 00003 20180814. Cst. Senior told UC1 more information about Sherry Wafer, her family, and their involvement with drugs. Cst. Senior stated that he saw pounds of “weed” in her house one time and that she had at least a pound in her house presently. Cst. Senior stated that Ms. Wafer threatened to come to the station and talk against him. The following recorded exchange took place:
ASF#3, pages 736-9
UC1: This is the girl that you have that intel on
RS: Yeah
UC1: She’s the fuckin’ dealer?
RS: She’s the what so what it is that she is like a
(unintelligible) so her brother’s
UC1: A what
RS: Her brother’s
UC1: Yeah
RS: She has two (2) brother’s right one (1) brother you’ll love
this
UC1: Yeah
RS: Best friends with ah (mouth noise) (unintelligible) her
friend she says he’s a crazy fuck she’s hasn’t spoke to him
in like fifteen (15) years was a friends with the the home
boy with pig farm in BC
UC1: Shut up
RS: Like best friends he’s gone to his house and
had barbeques with him so obviously he’s eaten a dead
fuckin hookers
UC1: Oh my God true story
RS: True story
UC1: Buddy you got a fuckin’ novel here
RS: She ah her family are connected to like I guess the assume
the Irish mob (unintelligible) mobs
UC1: What’s her name what’s her background
RS: Oh yeah she’s Irish
UC1: What’s her first name?
RS: Sherry
UC1: She’s Irish Irish
RS: Yeah she’s Irish Irish and she got Scandanavian and all
that other bullshit in the back
UC1: Oh
RS: Her mom fuckin’ ah they’re all connected
(voices overlap)
UC1: Yeah yeah
RS: The mom mules fuckin’ weed and cash and shit for all
these guy’s uhm
UC1: But what does this chick do
RS: She what she does is now she used to fuckin’ deal as well and she stopped
UC1: Yeah
RS: Uhm and now what she’s doing she’s building this
machine that helps so you know the cones for fuckin’ pre
loaded weed
UC1: Yeah
RS: Put in free loaded weeds
UC1: Yeah
RS: So she’s building machine that helps ah fill it and shake it
so that’s her new Patent
UC1: Oh okay
RS: This is it’s a patten stole from the US so I’m just gonna drop a dime on her to the guys and say F Y I this girl is fuckin’ rippin off your fuckin’ product yeah
(voices overlap)
UC1: Oh nice
RS: The fuckin’ she’s about to patent up here in Canada and she have no license for it.
She’s about to make tens of millions of dollars off of your fuckin patent (unintelligible)
Cst. Senior then told UC1 that she was dealing heroin and weed and that “she’s the middle”. The exchange continued:
ASF#3, page 739
UC1: Why don’t you fuckin drop a dime on her bro
RS: I’m gonna drop a dime on her right fuckin now, that’s what I’m saying
UC1: You gonna you’re not typing them now are ya
RS: No on Thursday
UC1: Sit down and do it Thursday
RS: Yeah
ASF#3, page 744
UC1: Okay so Thursday we got to put it all together right it’s you know what I mean I sounds like you don’t ….you know what I mean…put it all together.
RE: Yeah
UC1: And then ah we’ll send it up I don’t think we should send it…we’ll send it right to Bedford…
RE: Yeah
UC1: I trust Doug so we’ll send it right up to him
RS: Yeah
UC1: …Yeah think about all that….like you know what mean it’s not gonna.. whistle blowing time that’s what I say fuck it.
RS: Yeah …
ASF#3, page 745-747
UC1: But does she got dirt on you
RS: Like what
UC1: I’m asking you…I’m just wonderin’ fuckin if we do the fuckin’ report
RS: Yeah
UC1: I don’t want any fuckin…
RS: ….what she’s gonna say, what can she tell….I don’t do drugs
UC1: Perfect
RS: That’s it. Anything that she could possibly put it this way if she even tried to implicate me in some shit she’d be implicated too… does that make sense
UC1: Yeah
RS: So for example, if I’m saying that you smoke weed…me you’re getting the weed from
UC1: Yeah okay I see
RS: You you’re the trafficker I’m just the simple possession not saying I did smoke weed
UC1: …I get it but uhm
RS: I’m saying as an example
UC1: Yeah I know…
RS: Yeah the most she got me was like a couple of vials of GH and that was it and that’s all and that’s not even fuckin’ illegal
UC1: Possession though
RS: No
UC1: Who gives a fuck buddy everybody..
RS: That’s why I say I had no contact anyone….
UC1: You such an ass
RS: Well this is my point she I could of if…I’m still with her then I could probably maybe…
UC1: Oh yeah yeah I know what you’re saying…
RS: I got nothing …. Hey ok I know your burnin down the house but hey do you mind
UC1: Yeah
RS: …throw in an order for a buddy of mine
UC1: Yeah yeah
RS: So I’m like whatever
UC1: Okay we’ll do it on Thursday
At the end of the recording, UC1 was leaving the station. UC1 never told Cst. Senior that a police officer could not be a confidential informant. He also never told Cst. Senior that there would need to be a confidential informant background form, but UC1 testified, “I think he knew from the first one”. UC1 stated that he knew the source of the Wafer information was Cst. Senior and that Cst. Senior did not want his involvement known. According to UC1, if he, himself, wanted to share this type of information, he would send it in an email and document it in his notes.
c. Later that day, the two officers exchanged some text messages between 5:01 p.m. and 5:03 p.m.:
UC1: Brother…if you need anything lemme now…I can run down to see you
RS: She will come to the station
RS: For sure
RS: Thanks
RS: Appreciate it
UC1: Even if it’s just a hug…I been there..
UC1: Keep this shut on the down low
UC1: I have a fee ideas to insulate you
RS: Okay cool
RS: Thanks again
(ASF#3, page 234)
In his examination in-chief, UC1 explained that by a “few ideas” he meant in relation to confidentiality for Cst. Senior in providing information on the intelligence report. He did not provide Cst. Senior with any ideas at that time. In cross-examination, UC1 explained that this intelligence report would not have been disclosed to Sherry Wafer. UC1 also explained that Cst. Senior did not need to bring the information forward. UC1 never told Cst. Senior that this information could not be submitted on an intelligence report without a source. As confirmed by UC1 and D/S Salhia, there was no suspicion at that time that Cst. Senior was falsifying confidential informant reports.
d. At some point on that day, August 14, 2018, D/S Salhia received information from Det. Ladouceur, handler for UC1, that Cst. Senior was looking to draft an intelligence report about a female drug dealer. Having Cst. Senior complete the intelligence report on Sherry Wafer was not an initial objective of the Project Tadeu investigation. D/S Salhia had not given any direction to UC1 to suggest to Cst. Senior that he draft such a report. It was not until D/S Salhia received this information from Det. Ladouceur that it became an objective.
e. On the afternoon of August 15, 2018, there were some text messages exchanged between UC1 and Cst. Senior, specifically:
RS: Brother, I want to bring the hammer
RS: I am super pissed
UC1: Let’s bring the rain!
(ASF#3, page 235)
f. On August 16, 2018, the objective for UC1 was to go to the office and complete the report on the information that they had talked about in relation to Sherry Wafer. Prior to seeing each other in person, UC1 and Cst. Senior exchanged some text messages in the morning:
UC1: Can you please start that Intel report
RS: Yes
RS: Which intelligence report is left to do?? The last one
RS: ??
RS: With the coke and gun??
UC1: Those are done
UC1: I’m talking bout the 411 you got with that chick
RS: Okay cool
RS: On it
UC1: Rog
UC1: Should be there by 930
UC1: Email them to me…
UC1: When yu done
UC1: Ima see if WE can work it
RS: Okay
RS: I am feeling bad about sending her mom to jail.
RS: fuck it
UC1: Lol
UC1: Shut the fak up…you got hosed
RS: True
RS: Good point
UC1: Lol
RS: Still feel bad
UC1: Suck it up…survival bruv
UC1 : Lol
UC1 : I’m a fuckin mercenary
UC1: On my way
RS: We have shot to discuss
UC1: Otw back
(ASF#3, pages 236-239)
g. By the time UC1 arrived at 5COR, Cst. Senior had already begun to draft an Intelligence Report on Sherry Wafer and her family members being involved in the drug world and had emailed his first draft to UC1. At 9:22 a.m., Cst. Senior sent an email to UC1 with the subject line, “yrp050a intelligence report (1553).docx”. The attachment to the email was an Intelligence Report (Form YRP050A). The email stated, “Here is the rough draft of the intel report” followed by other details. Various portions of the attached draft intelligence report were filled in, for example, the “Introduction” stated in part, “In the month of July 2018, Cst. Senior #1553 & [UC1] received information from a confidential human source (CHS) regarding illegal drugs located within York Region. The CHS wishes to remain anonymous and does not wish to testify in judicial proceedings.” In the “Background” section of the form, it stated, “The CHS provided the following information” and then listed four separate details. Photographs of vehicles and persons were included in the draft. (ASF#2, pages 20-26) UC1 forwarded this report to his handler, Det. Ladouceur. On that same day, the draft intelligence report was forwarded to D/S Salhia, who noted that there was no named informant and the photos contained in the draft report were the same photos that were contained in Cst. Senior’s phone. That was relevant to D/S Salhia, as it was information Cst. Senior was in possession of, yet the report referred to a confidential human source providing the information.
h. At 9:43 a.m. on August 16, 2018, UC1 arrived at the station and met with Cst. Senior. The discussion at the station was captured on Device 1 2018-08-16 09-39-00 00004 20180816. UC1 looked over the draft and provided suggestions to Cst. Senior. As Cst. Senior provided names and addresses to UC1, he created a flow chart in order to be able to follow the information. Cst. Senior then had to leave the station. UC1 indicated that he would continue to work on the report while Cst. Senior was gone. UC1 stated:
UC1: Okay well we’ll meet up back here and just clean it up and then go through your other one what I’m (stutters) what I’m gonna suggest is do one separate for mom do one want separate for the girl…
(ASF#3, page 761)
i. UC1 did leave the station while Cst. Senior was out. When they both returned to the station, they continued to work on the report together. UC1 testified that Cst. Senior was typing and he was sitting right beside him in a chair reviewing what was being typed. The following excerpts of the conversation are relevant:
ASF#3, pages 777-778
UC1: But the info when does it come to you when did you become aware of it so that we can spread the time line
RS: December of two thousand-seventeen (2017)
UC1: I wouldn’t know because I was on clear fuckin’
RS: Yeah…but that’s my point if I say December seven (7) (stutters) seventeen (17) in the intel report if it gets…
UC1: This won’t be disclosed
RS: Okay
UC1: What’s gonna happen is probably they’ll act on it…and there’ll be a it will be a it will be uhm a search warrant with a tear away…source information
ASF#3, page 779
RS: Here’s (stutters) here’s the problem…I feel fucking bad cause she’s got kids man like young kids this is gonna fuck that shit up cause she is in a custody battle
UC1: Buddy
RS: I’m just (stutters) I’m just saying
UC1: You got fuckin you got young kids
RS: I know but this is another
UC1: Right
RS: I (stutters) I get what you’re saying but it just I, I know the kids like they are adorable like I know them well so it’s (stutters) its and it will tear them apart I don’t mind (stutters) I don’t mind this way it’s whatever is whatever
UC1: …but its part and parcel right
ASF#3, page 819
RS: ….I mean I don’t know what kind of secret squirrel ways you can track people down
UC1: Fuckin run them and do a fuckin’ pip
RS: That’s what I’m saying so I don’t know how to ah fuckin’ find out who’s who’s related to who and
UC1: Did you not check the RO of that vehicle did anybody come back to it any domestic issues
RS: That’s what you do I have it pulled up right here look…unless I did it wrong
UC1: Yeah
RS: I ran her
UC1: Yeah
RS: …all came up as this is her this is just her phone her car stuff
UC1: Go to refresh top top bar far right
RS: Refresh
UC1: No right
RS: Yeah like when I ran her it’s like nothing like she’s clean…she’s got nothing…unless you wanna run her and….
It would appear that they then did another search and UC1 was pulling up “hits” on Ms. Wafer. UC1 explained in his testimony that a “PIP” was a way to query a licence plate outside of the jurisdiction on a police information portal. The conversation continued:
ASF#3, page 821-822
RS: ….advised the CHS… I don’t need to put a name in there do I
UC1: No its just write what you see… write like (stutters) like what you smell
RS: You say half pound I don’t know she could have had half….
UC1: Okay when…when in the…
RS: She didn’t say how much
UC1: But CHS is seeing four pounds…
RS: I’ve seen…a pound of varying products like sample products…
UC1: Fuckin’ very specific ‘cause that shows the reliability of the source see what I’m saying
RS: I guess I’m changing my number thanks
UC1: Yeah maybe it’s not gonna it’s not we’ll talk about fuckin’ the anonymity of the source
RS: (laughs) yeah
UC1 explained that Cst. Senior was writing into the body of the report and he understood that Cst. Senior was wondering whether to include the name of the source. According to UC1, at this time, there was no plan about the name of the source; it was all information that was coming from Cst. Senior. The conversation continued:
ASF#3, page 831
RS: How is this not … I don’t see how this is not going to blow back.. she’s smart she’s gonna figure it out
UC1: She’s stupid as fuck she is not going to have any knowledge of this
RS: Okay
UC1: ‘cause you’re gonna hit it and go right to the fuckin thing
RS: …after she fuckin’ trips on tripped my wife and figure its me
UC1: She knew the fuckin’ hammer was coming….just a matter of time…
ASF#3, page 831-2
UC1: So…we are gonna have to protect you mother fucker I see you have recent in this
RS: …
UC1: How many other people would know about this
RS: About what
UC1: Saturday eleventh of August
RS: Over at ahh
UC1: Was there anybody else at the house mother
UC1 testified that the more people that knew the information, the less likely the probability of it coming back to Cst. Senior, which was why he asked Cst. Senior how many people knew the information. Cst. Senior then left the station to attend to other duties and UC1 indicated that he would continue to work on the report while he was gone. UC1 stated that his objectives were to make sure it was complete, thorough and sent out. UC1 agreed that there was nothing wrong with doing background checks in the context of this report, as it appeared to be legitimate information being investigated. UC1 stated that he believed he “ran” Sherry Wafer and also checked her on social media. He used police sources to do a background. When he left that day, UC1 testified that he understood that the information would be attributed to Cst. Senior.
j. Later on August 16, 2018, UC1 and Cst. Senior exchanged text messages. Starting just after 5:00 p.m., the text messages were as follows:
RS: We need to talk when I get back
RS: My wife just said she was being followed
UC1: Wtf
Several files were sent electronically, however, it was unclear what those files were. The conversation continued:
RS: She isn’t a red head anymore…her hair is dark brown now but she could have been changed again
UC1: Fakkkk
RS: Sherry knows where I live bro
UC1: Yu idiot
RS: That is why I don’t want her directly involved
RS: I never told her where I live
UC1: Ima slap you
RS: I never invited her to my house
RS: So the mother and the brother
UC1: We gotta hit her place hard and soon…hurry the fuck up..
RS: Thier is nothing there and I am not willing to put my wife and daughter in harm’s way
UC1: We talk
UC1: You close
RS: I have 3 trials
UC1: Hahahahaa
UC1: Ok…you wanna meet after?
RS: I will call you when I clear
(ASF#3, 239-242)
UC1 did not recall if Cst. Senior called.
k. On August 17, 2018, the following text message exchange took place in the late morning, early afternoon between UC1 and Cst. Senior:
RS: Hey, I thought about it last night and all day this morning, f*** it. Let’s burn them all
RS: Let’s do your way scorched – earth
UC1: Yes
UC1: Mercenary
RS: Straight up
RS: Your but just called me
RS: Henry
RS: I gotta call him back
(ASF#3, page 242-3)
By this point, Cst. Senior seemed to have put aside any doubt he had about reporting Ms. Wafer.
l. On August 21, 2018, the objectives of UC1 were to meet with Cst. Senior, to complete the intelligence report on Ms. Wafer and her family, and make sure it was sent off. There were some text messages exchanged prior to them seeing each other. Commencing at 9:24 am:
UC1: On my way back
RS: Hurry the fuck up
RS: I am starving and I need your help
RS: And I sent you the e-mail
RS: I am working on smeac
RS: Need help
(ASF#3, pages 250-1)
m. When UC1 arrived at the station, Cst. Senior was already in the office working on the intelligence report. UC1 reviewed the report and added information in relation to Ms. Wafer’s brother as an appendix. The interaction was recorded and the following excerpt is of note:
ASF#3, pages 878-9
RS: It’s on the…it’s on the COR drive…pull it up on my uh thing.
UC1: Yo no COR drives
RS: …
UC1: Because everybody has access to it CI info
RS: Yeah
UC1: Come on
RS: Well I’m learning coach what…
ASF#3, page 881
UC1: Oh yeah scroll (ph) much better beautiful so you wanna
send that to Doug please
Cst. Senior and UC1 continued to discuss what information should go in the intelligence report.
n. On August 21, 2018, at 10:14 a.m., Cst. Senior sent the intelligence report (5 pages) and an appendix (5 pages) relating to Sherry Wafer and her family to D/S Doug Bedford by email, copying UC1. The email stated, “Here is some information you might be interested in a drug trafficking family. Please also see Appendix A for brother.” The intelligence report attached was significantly different from the draft on August 16, 2018. It is of note that the “Background” section was no longer attributed, specifically, to a confidential human source, in the way it was in the draft. However, the report did make reference to observations made by a confidential human source at various times and, otherwise, simply set out the information as factual narrative. (ASF#2, pages 27- 36) UC1 stated that he authored the appendix.
o. D/S Salhia learned from D/S Bedford that Cst. Senior had submitted an intelligence report. Again, D/S Salhia testified that he believed that the information in the report was coming from Cst. Senior based on the inclusion of photographs in the report that were previously believed to be housed on Cst. Senior’s personal cellphone. D/S Salhia then directed the objectives and the email exchange that occurred between Cst. Senior and D/S Bedford.
p. On the same day, August 21, 2018, at 3:33 p.m., D/S Bedford responded to Cst. Senior in an email to follow up on the intelligence report submitted. He stated in part as follows:
Thanks for this information once again. You guys are doing some great work.
It slipped my attention, and I wanted to determine if you have submitted the YRP256 for your CHS? If not then please complete the attached forms and send it back to me.
This latest information you sent, is it from the same source or a different one? If it’s a separate source then please complete a YRP256 for the new source or a YRP257 Single Use report if you aren’t planning on using that person again.
I am looking to arrange some payouts on the information your CHS has provided to date. Can you please get these back to me by the end of the day or tomorrow at the latest, so I can move this along…
A blank form YRP256 (Confidential Human Source Introduction Report – 7 pages) and form YRP257 ((Confidential Information Report – 1 page) was attached to the email. (ASF#2, page 37-45)
q. On August 22, 2018, at 6:31 a.m., Cst Senior responded to D/S Bedford in an email which stated as follows:
The latest information I submitted was from a new source and was a one time exchange. I will complete the sheets and submit them back to you ASAP. Thank you for the feed back it is much appreciated. (ASF#2, page 46)
r. At 11:41 a.m., Cst. Senior sent a text message to UC1 as follows:
RS: Sorry for bothering you on your day off but Bedford wants YRP 256 and 257 filled out, not sure about how to fill out my information, call me…Thanks
(ASF#3, page 251)
There was no response from UC1. He testified that this was a direction from his handler not to respond and to “let it play out”. At 1:51 p.m., UC1 called Cst. Senior. Cst. Senior told him that D/S Bedford was requesting the 256 and 257 forms on the confidential human source information and that he did not know how to fill it out. UC1 stated that he told Cst. Senior that he could fill out the forms for Henry and that Cst. Senior could fill out the forms for the Sherry Wafer information. The conversation ended.
s. Later on August 22, 2018, at 2:05 p.m., D/S Bedford responded to Cst. Senior’s email and stated:
I am sorting out payments for a number of files and want to ensure your CHS gets paid before I go away. Please ensure that I get those forms before 1600hrs today, as I require them to process the payment.
t. At 3:48 p.m., Cst. Senior sent an email to D/S Bedford, which stated in part as follows:
Sorry for the late return, I answered the form to the best that I could, if you need more clarification I can contact the CHS for more info.
Attached to the email was Form YRP256 (Confidential Human Source Introduction Report) dated August 22, 2018 in relation to Henry Wong. Cst. Senior also attached and sent Form YRP257 (Confidential Information Report) dated August 22, 2018 in relation to the Sherry Wafer information. YRP257 indicated that this was a “Single Use Confidential Human Source”, that Cst. Senior was the CHS handler and UC1 was the witness officer. Further, it indicated that the location of the meeting was 8700 McCowan Road and that it was a “scheduled meeting”. Fields (8)-(12), being the name, DOB, address and telephone number of the informant, were left blank. The Report was signed by “RS”. (ASF#2, page 46-55).
u. At 3:57 p.m., D/S Bedford responded to Cst. Senior’s email and stated:
You didn’t name the CHS on the 257, can you fill it in and send it back before you go. The rest is sufficient for payment.
(ASF#2, page 58)
v. On August 23, 2018, the objective of UC1 was to ensure that Cst. Senior sent the completed YRP257 form to D/S Bedford. There was a breakfast meeting where UC1, Cst. Senior and others were present. UC1 gave an excuse to leave, as he had to meet D/S Salhia and Det. DiPlacido for a briefing in relation to another scenario.
w. At 12:35 p.m., D/S Bedford sent Cst. Senior and UC1 an email. In the portion addressed to Cst. Senior, he advised that his request to register a CHS was approved and reminded him of some protocol. The email stated in part as follows:
Notify Supervisor prior to and post any scheduled meeting with the CHS. Ensure the Supervisor that was notified has reviewed and signed your CHS Notebook.
Ensure witness officer present during contact with the CHS.
Prepare a cover story to account for your contact with the CHS.
Remember to run CPIC check on the CHS upon each contact and prior to each scheduled meeting.
After each contact prepare and forward 257 reports detailing information provided by the CHS.
As an attachment to your 257 reports include a copy of your CHS notes regarding each contact with the CHS.
Ensure that your CHS is aware that you will not permit their involvement in any Criminal Offences.
Ensure that you remind your CHS that they are not to disclose their CHS status to anyone.
Ensure that if CHS has provided information / intelligence on persons involved in Criminal activity prior to being registered as a CHS, that this information is documented in a YRP 257 report and forwarded to CHS Controller.
With respect to the Sherry Wafer information, D/S Bedford stated to Cst. Senior:
I am still awaiting the name of your One Time Source on the YRP257 you sent yesterday. Please ensure I get that by days end today!
In the same email, but directed to UC1, D/S Bedford stated that he had arranged payment of $1000.00 for CHS#5599 (Henry Wong) and asked him to attend headquarters that day to obtain the funds and pick up a CHS notebook for Cst. Senior. Finally, D/S Bedford attached the YRP480c (Confidential Human Source Payment Form). (ASF#2, page 56-57)
x. Cst. Senior and UC1 exchanged some text messages between 1:28:58 and 1:47:00 p.m. as follows:
RS: What do I put for the 526 for informant info???
RS: Not using my name
UC1: Lol
UC1: I just picked up 1000$ and notebook
RS: Okay
RS: Cool
(ASF#3, page 252-3)
y. Cst. Senior and UC1 met back at 5COR. UC1 had picked up the CHS notebook and $1000 and gave both to Cst. Senior. UC1 advised Cst. Senior to make arrangements to pay Henry. Cst. Senior asked about the name to put on the YRP257 form for the Wafer information and he had the form on the screen at the time he asked. UC1 stated that they should talk outside, and they went to the lunchroom to have a conversation. Cst. Senior asked what name he should put down as the source. UC1 told him that he did not know. Cst. Senior stated that he would not want to use his own name. UC1 stated that if he wanted to come clean, he should use his own name. Cst. Senior said, “no way, are you crazy”. Cst. Senior suggested that he could use “Lips”. Cst. Senior asked UC1 for names and pressed him to find him a name. They brainstormed for a bit. Cst. Senior told UC1 to look for names and UC1 searched on his phone. UC1 then suggested using the name of someone up north. Cst. Senior then stated that he knew a name he could use, a “shit head”. UC1 said “whatever you decide, I am good with”. UC1 asked Cst. Senior about paying Henry on Friday to which Cst. Senior said that Henry was not available on Friday, but he would make arrangements for payment. UC1 then filled out the YRP480 Confidential Human Source payment form to compensate Henry and left the station shortly after. UC1 agreed that Cst. Senior did not wish to be named as the source of the Sherry Wafer information and had said that explicitly. UC1 also agreed that a police officer cannot be a confidential human source. UC1 agreed that he wanted Cst. Senior to send up the forms completed – that was the objective. According to UC1, Cst. Senior had a choice whether to send the forms or not.
z. Around 3:24:42 p.m., Cst. Senior sent the following text messages to UC1:
RS: Where you at
RS: I am getting static from Bedford
RS: He needs a name
There was no response from UC1. (ASF#3, page 253)
aa. On August 23, 2018, at 4:00 p.m., Cst. Senior sent an email to D/S Bedford stating, “here is yrp 257 completed with the one time CHS name”. A Confidential Information Report (YRP257 Form) dated August 22, 2018 was attached, with fields 8, 10, and 12 now completed. The “Informant’s Name” in field #8 was provided as “David BROADHEAD”. Field 9, “Informant’s DOB” was left blank. Field 10, “Informant’s Address”, was filled in with “241 London Dr “. A cell number was provided in Field 12. (ASF#2, page 58-62) UC1 testified that he never saw this email and had no involvement in putting the name “David Broadhead” on the form.
bb. Cst. Senior sent another text to UC1 at 4:41:51 p.m. and the following exchange took place:
RS: Call me or reach out via text
RS: We need to chat
UC1: Did we put the name
RS: H wants to meet tomorrow because he is leaving town to China next week
UC1: Thought yu said we had one
RS: I put a name and sent it. All good
UC1: WTF
UC1: Rog
(ASF#3, page 253-4)
cc. As previously stated, the back and forth email exchange between Cst. Senior and D/S Bedford from August 21-23, 2018, urging Cst. Senior to include the name of the CHS for the intel report, was at the direction of D/S Salhia. According to D/S Salhia, the thought process in directing Cst. Senior to fill in the paperwork was that an informant must be identified prior to payment, so to complete the process and payment, the paperwork had to be filled out correctly in order to identify who would be getting paid as per procedure. D/S Salhia stated that one of the objectives was an “integrity test” to find out to whom Cst. Senior was attributing the information in the intel report. Eventually, D/S Salhia learned that Cst. Senior had completed the paperwork and identified the informant as David Broadhead. According to D/S Salhia, this was significant. Gordon Broadhead had started to feature heavily in the investigation after discovery of the “Greenhouse” folder. It appeared that Cst. Senior and Gordon Broadhead had a relationship and a history, determined from photos located in the phone and a CPIC query Cst. Senior conducted in 2007. Also, the GPS coordinates for Cst. Senior at the time of the query in relation to Gordon Broadhead, placed him at the residence of Broadhead, suggesting they were together at the time of the query. Also, this was significant because of the email to D/C Fiore in 2012, outlining two suspects for the holdup, neither of which was David Broadhead, who was the actual suspect.
dd. On September 10, 2018, UC1 provided Cst. Senior with $1300; $1000 to give to Henry, and $300 to give to the “one-time source” of the information relating to Sherry Wafer. UC1 asked what name he put as the source. Cst. Senior stated, “…a guy I knew from back in the day….he used to grow weed and shit….remember the guy I told you I gave the 20 grand….his older brother…David….he got in heavy with gambling and heavy into alcohol….he’s just an addict now….an alcoholic guy….” UC1 then told him to “do whatever you want with the cash…I don’t fucking care…” Cst. Senior asked, “…I gotta sign it and return it don’t I?” UC1 suggested that Cst. Senior put his own signature on it and then said, “I don’t fucking know…” Cst. Senior said, “we’ll figure it out”. (ASF#3, pages 1279-1280) UC1 left the station and returned. UC1 and Cst. Senior then left together and the following conversation took place:
UC1: …So what the fuck are we doing with this ah…thing
RS: What?
UC1: So with ah…fucking exhibit A source? The fucking ….the U-source (chuckles). The U-source. What are we gonna do?
RS: I don’t fuckin know. Well, you tell me.
UC1: I’m not fucking saying shit. I’m not saying nothing. Naw, I’m just kidding.
RS: Saying shit’ …(laughs)
UC1: I’m just messing with you. What ah…what do you wanna do?
RS: I have no idea. Ah…dude this is new to me. This is all brand new for me.
UC1: Oh my god. Come on. It’s fucking easy peezy.
RS: Well you tell me then.
UC1: ….yeah whatever…whatever you think buddy. Like you know what I mean like…
RS: …
UC1: So who did you…w-who did you use the uh…what-what’s the guy’s name? You put on it, just in case they ask me?
RS: …Dave. Broadhead. David Broadhead
UC1: Broad-head?
RS: Broadhead. He’s a known rounder that everybody knows in Newmarket.
UC1: Is he your buddy’s…your buddy…the guy that you loaned twenty G’s to, is this the brother?
RS: His older brother. He used to be my friend as well but he fucking…like I said…he got heav’…his fa’…here’s the thing about her…let me give you the long and short of it…
RS: So…I was dating this girl. We got engaged. Her cousins…ahm…were these two ah brothers.
RS: ah…David and Gordie
UC1: Gordie is the guy you loaned the …
RS: …yeah
UC1: … twenty G’s to
Cst. Senior continued explaining the background of these two men. The conversation continued:
UC1: You ever check him?
RS: I don’t wanna run him. ‘Cause I know he’s-he’s got whatever and it’ll say you know contact police blah blah blah
UC1: She’s SIP?
RS: Oh he’s SIP one hundred percent.
UC1: Well it will come back to you if you go after him
RS: Yeah. Exactly. That’s why I’m not gonna fucking run him.
(ASF#3, pages 1305-1316) UC1 testified that he did not know whether, in fact, David Broadhead was associated with this information in any way. As for the reference to “SIP”, UC1 testified that this stands for “special interest person”, and explained that, in the CPIC database, if someone is being investigated, an investigator will flag the name and indicate that the investigator is to be contacted.
ee. The two officers then returned to the station. They briefly returned to the topic of the Sherry Wafer source money:
UC1: So what’re we doing with the fucking cash?
RS: Which one? All of it?
UC1: Well, Henry’s is Henry’s, but the other one
RS: …I dunno. You tell me bro’ (laughs)
UC1: Duck right? I don’t know. Like you fucking signing off? I-I don’t really care what you do.
RS: I-I’ll get somebody to sign off. I’ll just get …. or someone else to sign it off and then we’ll just go
UC1: Do whatever the fuck you do.
RS: And then I can….going to charity
UC1: …do whatever the fuck you want
RS: I’ll donate to charity
UC1: You what?
RS: Donate it to the [T] fund.
UC1: Fuck not my fund bro’
RS: I’ll put it to your fund. You should…
UC1: No, I don’t…I don’t need it in my fucking fund
RS: You need a fund. You-you’re stressed, you need a fund
UC1: …I don’t need a fund. I don’t need a fund
RS: You need a fund. I’m gonna go set up a-a-a…I’m gonna go start a Go Fund Me page
(ASF#3, pages 1332-1333)
ff. On that same day, September 10, 2018, Cst. Senior attended the home of his friend, Fabian Wills. Mr. Wills left his house and got into Cst. Senior’s Ford F-150. Cst. Senior and Mr. Wills had a conversation, in which Cst. Senior explained that he had “a bunch of confidential sources…CIs and shit” and “I need you to forge somebody’s signature”. Cst. Senior handed Mr. Wills a confidential human source payment form and told him to print “D. Broadhead” and then place that signature on the form. There was no indication on the recording that Cst. Senior provided the money to Mr. Wills. In fact, it is not clear what happened to the money. The conversation was captured on Probe 1 2018-09-10 21-48-26 00012 ambient_rec_20180910_214826. (ASF#3, pages 2260-2261)
gg. Shortly after, at 10:04 p.m., Cst. Senior was intercepted dictating a message to UC1 as follows: “Yo, FYI, I found the second CHS side chick so I’m going to give her the money for him but it’s fifty dollars light just an FYI so it’s three hundred not three fifty.” This does not appear to have been the message sent as the text messages demonstrate that at 10:10 p.m., Cst. Senior sent a message as follows: “FYI I contacted the second CHS I figured I’d just give him the money since I used his name but it’s $50 light there’s only 300 here two Browns and Two Reds…You counted when you pick up?” (ASF#3, page 278) UC1 testified that he had made an error on the form.
hh. On September 12, 2018, Cst. Senior emailed D/S Bedford the scanned receipt Fabian Wills had forged David Broadhead’s signature on. The YRP480C stated that “I CHS (one time source) acknowledge the receipt of the sum of $300 ($350 was crossed out and initialled by RS) dated September 10, 2018, purported to be signed by “D. Broadhead” and witnessed by Cst. Senior and UC1. (ASF#2, pages 69-72)
ii. Shortly after this email, on September 12, 2018, Cst. Senior told UC1 that he gave the $300 to “home boy’s side piece” and had her sign for it. (ASF#3, page 1412)
Analysis and Conclusion in relation to utter forged document (Sherry Wafer report)
[87] There is no doubt that Cst. Senior was the source of the information contained in the intelligence report. The information did not come from a confidential human source. Cst. Senior did not even have the name of a source in mind at the time he authored the report, as evidenced by the communication between Cst Senior and UC1.
[88] Having Cst. Senior complete the intelligence report on Sherry Wafer was not initially an objective of the Project Tadeu investigation. UC1 had never heard of Sherry Wafer’s name before August 14, 2018. D/S Salhia had not given any direction to UC1 to suggest to Cst. Senior that he draft such a report. Candidly, D/S Salhia admitted that this was not something the investigative team had anticipated. It was not until D/S Salhia received information from Det. Ladouceur on August 14, 2018, that Cst. Senior was interested in drafting a report, that it became an objective. Investigators did have reasonable suspicion of breach of trust and unauthorized use of computer at a much earlier stage. Further, as early as June 25, 2018, there was reasonable suspicion in relation to obstruct justice, a separate offence that investigators also reasonably believed Cst. Senior was committing with Caterina Petrolo during this period. This court, however, does not see uttering a forged document as rationally connected to any of the earlier suspicions. There is no causal link, such that suspicion of one led rationally to providing the opportunity for the other.
[89] The pivotal question, however, is whether an opportunity was provided or did Cst. Senior initiate these events. While it is true that UC1 made the suggestion to “drop a dime on her” it appeared that Cst. Senior had already come to this conclusion on his own. He had already decided to report Sherry Wafer and her family to police. The reality is that there was absolutely nothing wrong with Cst. Senior reporting Sherry Wafer and her family given the information available to him. There is absolutely nothing to suggest that Cst. Senior was making up false information, in fact, information provided was ultimately considered legitimate to police, to the point that charges were laid.
[90] The offence is not about reporting Sherry Wafer and her family. The offence is in the manner in which that information was reported. There was explicit reference to a “CHS” – confidential human source – in the report. The impression left by the intelligence report was that all of the information contained in the “Background” section came from that confidential human source. In comparison, Cst. Senior completed the portion of the form entitled “Investigator’s Comments”, which followed that “Background” section, and set out the conclusions of the investigator. The form indicated that the report was submitted by “PC Senior 1553”. Cst. Senior was clearly trying to distinguish himself from the source of the information. The intercepted communications clearly confirm that Cst. Senior wished to hide the fact that he was the source of the information and was searching for a name, with the assistance of UC1, to place on the form as the source. Clearly, Cst. Senior knew that he was, in fact, the source of this information and that attributing it to David Broadhead was false. There was absolutely no suggestion that David Broadhead did in fact share information personally or authorize the use of his name. Cst. Senior’s comments to UC1 relating to choosing David Broadhead’s name were very telling.
[91] The Intelligence Report – YRP050A – is false, both because it was made on behalf of a person who did not authorize it to be made, and because it is false in respect of material particulars.