Court File and Parties

COURT FILE NO.: CR-22-90000003 CR-23-90000078 DATE: 20230509 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – ELIJAH HALL Applicant

Counsel: Kerry Benzakein and Ryan McSheffrey, for the Crown Angela Lepsa, for the Applicant

HEARD: Jan. 21, Feb. 3 and March 9 & 23, 2023

Ruling on an Application for a Stay Based on Entrapment

B.P. O’marra j.

[1]

Background

The applicant pleaded guilty to three counts of selling fentanyl and cocaine to an undercover police officer. There was a drug transaction involving fentanyl before those three transactions that was initiated by the officer. The Crown concedes that the police did not have reasonable suspicion before the first transaction.

2The applicant seeks a stay of the charges he has pleaded guilty to based on the legal doctrine of entrapment.

3On March 23, 2023 I allowed the application and ordered stays of the three counts.

4These are my reasons.

5On October 8, 2020 Detective Constable (“DC”) Blair commenced an investigation upon a tip from a confidential informant as part of the Toronto Drug Squad. DC Blair made no further inquiries into the information provided.

6The tip consisted of the following information:

T1: unknown Selling fentanyl and cocaine Cell #647-514-3561 Male/black, 18-20 years old, 5’9”, cornrows, thin Resides on Goldfinch Drive

7On October 8, 2020 at 7:13 p.m. DC Blair called the phone number provided but there was no answer.

8DC Blair then sent a series of text messages to the phone number provided stating the following:

7:14 pm: “Yo you around?” 7:15 pm: “grey blessed me wit ur number still.” 7:17 pm: “Tryin get a B if u could link it.”

9The applicant replied to DC Blair’s messages stating the following:

7:21 pm: “No hard right now” 7:22 pm: “I can give u a 3.5 of soft for 310”

10At which point, DC Blair replied:

7:24 pm: “Bless” 7:24 pm: “when you ready?”

11Later that evening, DC Blair met the applicant at 12 Goldfinch Court in Toronto, Ont. The applicant sold DC Blair 2.3 grams of cocaine in exchange for $300.

12The Crown conceded that the police did not have a reasonable suspicion before the applicant was contacted on October 8, 2020.

13There was no viva voce evidence since the facts were not in dispute.

14The applicant faced an 11-count indictment related to drug transactions from and including October 8, 2020 and January 11, 2021 inclusive.

15The applicant pleaded guilty to the following:

• On November 9, 2020 he met the undercover officer and sold him 3.7 grams of fentanyl in exchange for $280.
• On January 11, 2021 he met the undercover officer and sold him 3.76 grams of fentanyl and 3.8 grams of cocaine in exchange for $580. The applicant was then arrested. A search incident to arrest revealed further quantities of fentanyl and cocaine as well as $1,765 in Canadian currency, 2 digital scales and drug packaging.

16The Crown withdrew the remaining counts on the indictment, including the initial transaction on October 8, 2020.

17The Crown concession that the interaction on October 8, 2020 was initiated without reasonable suspicion would have led to a stay on that count if it was not withdrawn. The issue on this application is whether the lack of reasonable suspicion at the outset taints the subsequent drug transactions on the basis of entrapment.

18The position of the Crown is that a finding of entrapment related to October 8, 2020 cannot extend to fentanyl and cocaine transactions that followed.

The Law

[19]

The Law

There is no dispute regarding the law of entrapment. The cases of R. v. Mack, [1988] 2 S.C.R. 903, at pp. 959, R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 15, and R. v. Ramelson, 2022 SCC 44, at para. 29, set out the test that must be met.

20There is entrapment when:

(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; and

(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.

21In R. v. Williams, 2014 ONSC 3005 the accused was involved in two cocaine transactions with an undercover police officer. When he was arrested on a later date he was found in possession of a handgun and ammunition. Justice Trotter (as he then was) found that the drug charges should be stayed based on entrapment. The defence submitted that the firearm related charges should also be stayed since they were inextricably linked to the drug transactions.

22The drug charges in Williams were dealt with by Justice Trotter on a separate indictment on a prior date reported at 2014 ONSC 2370. The two drug transactions had occurred several days apart. At para 30 the court indicated the following:

On all of the evidence, I have determined that Mr. Williams has established entrapment on a balance of probabilities in relation to the February 22, 2011 transaction. Mr. Morlog quite fairly conceded that, if the first transaction was the product of entrapment, I should also stay the charges relating to the second transaction on February 22, 2011. I agree, and all charges on the indictment are stayed.

23In his later decision dealing with the firearms related charges in Williams at paras 8, 14 and 17 Justice Trotter ruled that the entrapment on the drug charges did not extend to stay the gun related charges:

The charges arising from Mr. Williams’ arrest on March 15, 2011 were not the product of entrapment. The police did nothing that encouraged Mr. Williams to (allegedly) arm himself with a gun and ammunition and then go out onto the street. Mr. Williams committed these offences on his own, with the assistance of no one; see R. v. Silverthorn, 2012 ONSC 6784, at para. 13. Because the police had provided Mr. Williams with opportunities to traffic in crack cocaine without having reasonable suspicion, he was automatically entitled to the most powerful remedy known to Canadian criminal law on those charges – a stay of proceedings. Weeks later, and acting independently, he is not entitled to the same remedy once again.

When the police encountered Mr. Williams on March 15, 2011, they clearly had reasonable grounds to arrest him for the drug offences. The subsequent findings of guilt confirm this conclusion. There was no suggestion in the evidence that the officers involved in the arrest had any idea that the manner in which the drug offences were investigated would turn out to be problematic. Moreover, my finding of entrapment, made almost three years later, does not have the effect of retroactively vitiating the reasonable grounds for the arrest of Mr. Williams that day. As Ms. Advani submitted in her factum, it cannot be said that a person who is found guilty of an offence was not arrestable for that same offence.

The police conduct in this case was very different. When Mr. Williams was arrested, the drug investigation was already over. A decision had been made to arrest Mr. Williams. Unlike the perimeter search cases, the arresting officers did not knowingly or negligently exploit the fruits of the prior drug investigation to gather evidence of further and/or other offences. It was pure happenstance that, when he was arrested, Mr. Williams was allegedly in the process of committing other offences completely unrelated to the drug offences. There is no evidence that the arresting and searching officers had any inkling that there was a problem with the earlier investigation into the drug offences. Indeed, they were never asked. Moreover, this problem did not formally crystallize until my earlier ruling, made more than three years after the events of March 15, 2011.

[24]

Analysis

The circumstances in Williams in regard to the firearm related charges not being stayed while the drug charges were on the basis of entrapment is wholly unlike the case before me. It cannot be said that the drug investigation was over (as in Williams) when Mr. Hall was arrested. It also cannot be said that in this case, unlike in Williams, that the circumstances surrounding the subsequent changes were “pure happenstance” unrelated to the entrapment charges.

25This issue was addressed in R. v. Gambin at paras. 57 and 58:

Consequently, the Crown has failed to establish a reasonable suspicion that Mr. Gambin was involved in drug trafficking in respect of either of the offences. The second transaction, concluded on the very next day by the same undercover officers as a continuation of the events from the Friday night, does nothing further to give rise to a reasonable suspicion. It is fruit poisoned by the tree of the first transaction. Simply put, the random virtue checking by the police of Mr. Gambin took place over 24 hours and resulted in two counts of drug trafficking.

I find that the charge in relation to the second transaction cannot stand on the crumbled foundation of the first. The police actions in relation to the Saturday night transaction also amounted, therefore, to an abuse of process. Consequently, the finding of guilt with respect to Count #2 is judicially stayed.

RESULT: The application is allowed and counts 3, 8 and 10 are stayed.

B.P. O’Marra J.

Released: May 09, 2023