COURT FILE NO.: CR-22-90000393-0000

DATE: 20221213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ABDULKADIR MOHAMUD

Defendant

James Damaskinos, for the Crown

Ben Elzinga Cheng, for the Defendant

HEARD: November 24 and 25, 2022

schabas J.

REASONS FOR DECISION

Overview

[1] At the outset of the trial in this matter, based on an Agreed Statement of Facts, I found the defendant Abulkadir Mohamud guilty of trafficking in a Schedule I substance (Fentanyl), contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). I also found Mr. Mohamud guilty of possessing Percocet (also a Schedule I substance) for the purpose of trafficking contrary to s. 5(2) of the CDSA, and guilty of one count of possession of property obtained by crime under $5,000 contrary to s. 354 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] In short, following the receipt of information from a confidential informant, the police engaged in text messaging with Mr. Mohamud who offered to sell the police some Fentanyl. He subsequently sold Fentanyl to an undercover officer. On a second occasion, after arranging to meet Mr. Mohamud to purchase more Fentanyl, the police arrested Mr. Mohamud who was found to be in possession of Fentanyl and Percocet, which he has admitted was possessed for the purpose of trafficking. He was also found in possession of money which is admitted is the proceeds of crime.

[3] Mr. Mohamud then brought an application seeking a stay of proceedings on the ground that he was entrapped into committing the offence when offered an opportunity by police to traffic in Fentanyl without the police having a reasonable suspicion that he was already engaged in that activity.

[4] For the reasons that follow, I conclude that Mr. Mohamud was not entrapped and dismiss his application.

The law on entrapment

[5] The issue of entrapment, and its remedy of a stay of proceedings, can only be advanced once it is “absolutely clear that the Crown [has] discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence”: R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903 at 972.

[6] As the Court of Appeal recently observed in R. v. Zakos, 2022 ONCA 121 at paras. 21-22:

Entrapment is the "conception and planning of an offence 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."…Entrapment is not a defence. It is an application of the doctrine of abuse of process for which the remedy is to stay the proceedings. [citations omitted]

[7] In Mack, at p. 959, the Supreme Court stated that entrapment is made out when:

(a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides . . . or,

(b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

[8] The onus is on the applicant to establish entrapment on a balance of probabilities. However, it has also been stated that “[a] finding of entrapment is reserved for the ‘clearest of cases’ of intolerable state conduct”: Zakos at para. 28, citing Mack.

[9] The Supreme Court considered the term “reasonable suspicion” in the entrapment context recently in R. v. Ahmad, 2020 SCC 11 at paras. 45-47. Reasonable suspicion is an objective standard but is not “unduly onerous.” Reasonable suspicion “requires only the possibility, rather than the probability, of criminal activity.” It requires 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.” “Reasonable suspicion” is a lower legal threshold than “reasonable grounds to believe.” Reasonable suspicion exists where the police have reasonable grounds to believe that the target might be connected to the offence being investigated; they need not have a reasonable belief that he is connected to the crime. The question is whether the facts indicate the possibility of criminal behaviour.

[10] On the other hand, the Supreme Court also observed that reasonable suspicion “provides police officers with justification to engage in otherwise impermissible, intrusive conduct such as searches and detentions.” Therefore it is “subject to ‘rigorous’, ‘independent’ and ‘exacting’ judicial scrutiny” and “[t]he suspicion must be focused, precise, reasonable, and based in ‘objective facts that stand up to independent scrutiny’": Ahmad at para. 46. See also R. v. Ramelson, 2022 SCC 44 at para. 53.

Did the police have reasonable suspicion prior to providing the opportunity?

[11] In this case the first branch of entrapment is relevant. The defence submits that a police officer, D.C. Robert Asner, did not have reasonable suspicion when, through text messages on January 6, 2021, he provided the opportunity to Mr. Mohamud to commit an offence.

Compelling and credible information from the confidential informant

[12] Prior to texting Mr. Mohamud, D.C. Asner received information that a police handler had obtained from a confidential informant. That information, some of which was recorded in a document provided to D.C. Asner, informed him of a number of facts, including:

• There was an active drug dealer who went by the name "Doc"

• The confidential informant received a mass text from “Doc” which included information about prices and drugs

• The “price list” included Fentanyl, crack, Tina, and crystal meth

• The phone number of "Doc"

• The physical description of "Doc"

• Customers can text or call and the drugs will be delivered throughout the GTA

• “Doc” “never really makes deliveries” but takes calls and sends out one or two drivers or delivery guys to drop off drugs and pick up money

• “Doc” is recruiting new clients and had sent a mass text with information about various drugs and their prices

• A drop name of ‘Jay Coolie’ who was a user active in Newmarket was provided

• The description of a car and license plate used in the operation

[13] The full tip received by D.C. Asner consisted of 15 bullet points of typed information, some of which was redacted to protect informant privilege. The redacted information included another name associated to "Doc", drug practices, and communications between the source and "Doc". Some of the information from the informant was based on the informant’s personal knowledge, and the information had been received by the police within thirty days of when it was acted upon.

[14] D.C. Asner also provided evidence that the confidential informant was a “carded” informant, which means that the individual is a registered Confidential Human Source with the Toronto Police Service. The informant had no criminal record and provided information for money. The informant was, according to the police, immersed in the drug subculture. D.C. Asner stated that on two occasions in 2020 the informant had provided first-hand information relating to drug dealers, which led to arrests and the discovery of firearms and drugs.

[15] Tips from confidential sources must be carefully scrutinized by the courts to determine whether the information establishes reasonable suspicion: Ahmad, at para. 53, citing R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at p. 1168. In Debot, the Supreme Court set out three factors to consider – whether the information was (1) compelling, (2) credible, and (3) corroborated. All three factors do not necessarily need to be met; rather it is the totality of the circumstances that must be examined. Weakness on one factor may be compensated by the strength of the other two.

[16] I find, as the defence conceded, that the tip, even in redacted form, was compelling and credible. The informant provided detailed, focused and precise information about “Doc” and his methods of operation, including names, descriptions, a specific phone number, a licence plate number, types of drugs being sold, and their method of delivery, among other things. The informant did not have a criminal record and was not an anonymous or untested source, but had on at least two recent prior occasions provided reliable information which led to arrests and seizures of drugs and firearms.

[17] Even in the absence of corroboration, the strength of this evidence provided D.C. Asner with reasonable suspicion before he texted the accused, or “Doc”. As the Supreme Court stated in Ahmad at para. 35, “reasonable suspicion can attach to a phone number, because it is precisely and narrowly defined.” It must also be “individualized, in the sense that it picks an individual target”: Ahmad at para. 48. Here the police had both a phone number and an individual target, as well as other specific and precise information from the informant.

[18] The facts provided by the informant in this case may be contrasted with Ahmad, where there was very little information about the informant or information from him or her beyond a name and telephone number, which explains why the conversation with the target was essential to form reasonable suspicion in that case.

Corroboration of the information

[19] However, if I am incorrect in finding reasonable suspicion existed based on the information received from the confidential informant, that information was corroborated in the course of the text exchange between D.C. Asner and the accused on January 6, 2021. That exchange, in which D.C. Asner used the phone number provided by the informant, was as follows:

DC Asner: Yo I ur # from jay

DC Asner: R u aroun?

Defendant: Yeah will be soon what’s up

DC Asner: I need a link

Defendant: How much?

DC Asner: How much for hb of Purp

Defendant: Got two batches

Defendant: The crazy head nodded or the regular get you high but not as strong

Defendant: The premium one obviously more expensive

[20] Both parties agree, and I find, that D.C. Asner created the opportunity for Mr. Mohamud to commit an offence when he asked “How much for hb of Purp”, which refers to a “half ball” (or 1.75 grams) of Fentanyl, which is often purple in colour.

[21] D.C. Asner’s previous texts also used drug culture language, including “R u aroun?” which he testified is code for asking if a dealer is available, and the phrase “I need a link” which indicates that he is looking for drugs.

[22] In Ahmad, at para. 54, the Supreme Court observed that, it is “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.” At para. 55, the Court stated:

…the target's responsiveness to details in the tip, along with other factors, may tend to confirm the tip's reliability. For example, the target's use of or response to language particular to the drug subculture properly forms part of the constellation of factors supporting reasonable suspicion.

[23] The Court also stated, at para. 47, that “an officer’s training or experience can make otherwise equivocal information probative of the presence of criminal activity.”

[24] In Ahmad, the conversation with the target was necessary to form reasonable suspicion as the informant was not known to be reliable and provided very limited information to the police. In a very brief telephone conversation, the officer referred to the target by the name given to him (Romeo), but used a concocted drop name (Matt), to say “you can help me out”, and the target then said “what do you need?” At that point the officer said he needed “2 soft” (two grams of cocaine) which amounted to providing an opportunity to commit a crime.

[25] The Supreme Court upheld the trial judge’s finding in Ahmad that there was reasonable suspicion before the officer said “2 soft”, though it was “an extremely close call.” (Ahmad, para. 76) In reaching this conclusion, the court observed that while the statement “What do you need” could be innocent, “the reasonable suspicion standard did not require the police to direct the conversation to rule out innocent explanations for Ahmad's positive response. Nor can the question and answer be assessed in isolation.”

[26] The court noted that Ahmad did not deny he was Romeo or ask who Matt was, and Ahmad was not surprised that someone would be reaching out to him for “help.” On this basis, the court found that “[t]he officer was entitled to rely on what he knew of illicit drug transactions and all of the circumstances, as well as the response ‘What do you need?’ in response to a request that he ‘help ... out’ a stranger, in forming reasonable suspicion that the individual with whom he was speaking was engaged in drug trafficking.”

[27] In contrast, this case is not a “close call.” The police had much more compelling and credible information prior to engaging in direct communication with the target than was the case in Ahmad. In addition, Mr. Mohamud’s responses to the first texts corroborated information from the informant and supported his reasonable suspicion that Mr. Mohamud was a drug dealer. Although he did not know who was texting him, or from where, Mr. Mohamud did not question who D.C. Asner was or the reference to “Jay”, the name of a “drop” provided by the informant. Instead, the accused responded to “R u aroun” with “Yeah will be soon what’s up”, and following D.C. Asner’s text that “I need a link”, Mr. Mohamud said “How much?”

[28] These responses were corroborative of the information that Mr. Mohamud was using that specific phone number to conduct a drug trafficking operation. As D.C. Asner testified, the lack of any question by Mr. Mohamud about the name “Jay” corroborated a name given to the police by the informant, and Mr. Mohamud’s responses to D.C. Asner’s question “R u aroun?”, and to his statement that “I need a link”, were consistent with communications leading to a drug deal. The responses from Mr. Mohamud, therefore, supported the existence of reasonable suspicion before D.C. Asner asked for “hb of Purp”, which was the opportunity to commit a crime.

D.C. Asner’s credibility and reliability

[29] I have considered the applicant’s submission that D.C. Asner’s evidence must be approached with care, as concerns about his credibility and reliability were raised in cross-examination. Those concerns, however, related to inconsistencies or mistakes that have no bearing on the issue of entrapment.

[30] It is correct that the police could have run a check on the licence plate number that was provided before they texted “Doc”, but their failure to do so, if that is what happened, does not affect the detailed information that was provided or the subsequent texting. D.C. Asner testified that either he did a check and did not make a note of it, or he did not check the licence plate, which was an oversight. However, there is no obligation on the police to exhaust all other investigative means or rule out innocent conduct prior to providing an opportunity to commit an offence, if they otherwise have reasonable suspicion.

[31] Although the officer testified at the preliminary inquiry that he made up the name “Jay”, he acknowledged this was incorrect and said he made that mistake because he only reviewed his notes, not the typed summary of the tip, before he testified. The officer’s memory may also have been affected by the fact that in later text messages Mr. Mohamud asked about Jay and D.C. Asner had to make up biographical details about him.

[32] Other points raised by counsel for Mr. Mohamud dealt with things that happened after the initial text messages: whether D.C. Asner made up the name of a girlfriend in a later text, and whether he sat in the passenger seat of the car when he actually bought drugs from Mr. Mohamud. Neither of these points have any bearing on the evidence of entrapment which is not, in any event, dependent on D.C. Asner’s credibility or reliability as the evidence supporting reasonable suspicion is contained in the summary of the tip and in the text messages themselves, none of which is in dispute.

Conclusion

[33] The application to stay the proceedings is dismissed.

Paul B. Schabas J.

Released: December 13, 2022

COURT FILE NO.: CR-22-90000393-0000

DATE: 20221213

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

ABDULKADIR MOHAMUD

REASONS FOR DECISION

Schabas J.

Released: December 13, 2022