Court File and Parties

Court File No.: CR-23-90000683-0000
Date: 2025-01-21
Ontario Superior Court of Justice

Between:
His Majesty the King – and – Adrian Davey

Appearances:

• Ildikó Erdei and Neil Cockerill, for the Crown
• Rob Chartier and Kishan Lakhani, for Mr. Davey

Heard: May 23, October 23, October 24, November 19, 2024

Reasons for Judgment on Entrapment Hearing
R.F. Goldstein

Introduction

[1] On May 27, 2024, Mr. Davey pleaded guilty to one count of trafficking cocaine and one count of possession of cocaine for the purpose of trafficking. He subsequently brought an application to stay the proceedings on the ground of entrapment. On January 7, 2025, I dismissed the application. I read out portions of my judgment in court, and indicated that I would release the full reasons in due course. What follows are my reasons.

Background

[2] Some time prior to May 27, 2022, Detective Constable Matt Gerry received information from an informant handler. An informant handler is a police officer who deals directly with a confidential informant. The informant handler provided information to DC Gerry. That information included firsthand information from the confidential informant:

• Someone reached out to the informant advertising that they are selling cocaine;
• The informant was provided with a telephone number of 437-374-3905;
• The police could reach out to this target, indicate that they are looking for party favours, and this target will usually deliver;
• The informant could not provide a drop name for the target.

[3] On May 27, 2022, DC Gerry, acting in an undercover capacity, contacted the number 437-374-3905 by text message. The person who responded was Mr. Davey. Mr. Davey agreed to sell the officer cocaine. The text of the conversation was as follows:

GERRY:
Hey u available?

DAVEY:
Hi yes im available today

GERRY:
Kk cool looking to grab favours can you deliver ?

DAVEY:
Yea. Its 100g 20 delivery

GERRY:
Kk cool looking to grab a ball Can you meet me at 2040 Donmills

DAVEY:
Only have 2g left.

GERRY:
Kk cool so 200 Or 220

DAVEY:
Yea 220

GERRY:
K can when can u meet

DAVEY:
I just got home from work. So in about an hour or two I can head out

GERRY:
Kk will it take you long to get here

DAVEY:
Not really. Im coming from Mississauga but no traffic at that time. Like 20/30min drive once i leave I’ll text you when im omw.

[4] The text messages continued as Mr. Davey approached 2040 Don Mills Road in Toronto. They did meet at that location. DC Gerry went to Mr. Davey’s vehicle. Mr. Davey gave DC Gerry 1.42 grams of cocaine in exchange for $220.

[5] DC Gerry testified that the question “you available” was a common way of asking whether the person answering the text was available to sell drugs.

[6] DC Gerry met Mr. Davey three more times. On each occasion, DC Gerry contacted Mr. Davey by text message. On each occasion, Mr. Davey agreed to sell an amount of cocaine to DC Gerry for an agreed-upon price. On June 16, 2022, Mr. Davey sold DC Gerry 1.64 grams of cocaine for $220. On July 9, 2022, Mr. Davey sold DC Gerry 3.43 grams of cocaine for $400.

[7] On July 28, 2022, DC Gerry again contacted Mr. Davey. They had a conversation. Mr. Davey agreed to sell cocaine to DC Gerry in exchange for $370. They met at 2040 Don Mills Road. Mr. Davey was driving a motorcycle. Mr. Davey was selling 2.91 grams of cocaine to the officer, but he became aware of the police. He attempted to flee. He threw away the 2.91 grams of cocaine. The police subsequently recovered it. The police did pursue and arrest Mr. Davey. They searched him. He had a further 6.02 grams of cocaine packaged in two baggies, as well as $50 and a cell phone.

The Guilty Plea and Entrapment Application

[8] On May 23, 2024, Mr. Davey was arraigned on one count of trafficking cocaine on July 9, 2022, and one count of possession of cocaine for the purpose of trafficking on July 28, 2022. He acknowledged the facts, but I did not enter convictions as Mr. Davey brought an application to stay the proceedings on the grounds of entrapment.

[9] The entrapment hearing proceeded in two stages: the first stage was a modified “Garofoli Step 6” application; the second was the hearing on the entrapment itself.

[10] The Garofoli Step 6 in this case was somewhat unusual, although obviously not unprecedented in “dial-a-dope” cases: R. v. Ahmad, 2020 SCC 11. Ordinarily, the Garofoli Step 6 application is conducted in the context of an application to exclude seized evidence where the police have relied on informant information to obtain a wiretap authorization or search warrant: R. v. Garofoli, [1990] 2 S.C.R. 1421 at paras. 97-103. Reasonable grounds is the standard for the execution of a search warrant. The lower standard of reasonable suspicion is required where the police offer the target the opportunity to commit the offence.

[11] The purpose of the Garofoli Step 6 in this case was to determine if the defence was provided with sufficient information to challenge the actions of the police.

Issues and Analysis

[12] Thus, there are two issues to be determined:

• First, was the information provided to the defence sufficient to make full answer and defence?
• And second, if so, has the defence proven on a balance of probabilities that the police did not have reasonable suspicion when they offered Mr. Davey the opportunity to commit the offence?

(a) Was Mr. Davey Able To Make Full Answer And Defence?

[13] The Garofoli Step 6 was not originally part of the defence application. It was raised by the defence prior to the hearing. I do not fault the defence for proceeding in this way and neither does the Crown. Although it is preferable that things do not proceed in this way, sometimes applications evolve as issues arise. I am satisfied that the defence was acting in good faith and not seeking to ambush anyone. The Crown was able to proceed without prejudice, although there were multiple logistical challenges that Crown counsel was able to overcome.

[14] Counsel for Mr. Davey argued that the material provided to the defence was insufficient to make full answer and defence. The defence was not provided with the handler’s notes (even a redacted version), or the communications between the informant handler and the undercover officer. All that was provided at first was a Crown summary. There was no meaningful way that the defence could test the reliability of the informant. The fact that the threshold is lower does not affect the analysis. Moreover, the handler information was not fully transmitted to DC Gerry, and so it cannot form part of the reasonable suspicion relied on by the Crown. Indeed, in cross-examination DC Gerry admitted that he was not aware of some of the Crown’s “further information”.

[15] With respect, I cannot agree.

[16] As the Court of Appeal commented in R. v. Crevier, 2015 ONCA 619 at para. 1, there is always a tension between the interests of law enforcement, informant privilege, and an accused person’s right to make full answer and defence. The six-step procedure in Garofoli, applying the principles set out in R. v. Debot, [1989] 2 S.C.R. 1140, are basically an attempt to reconcile these tensions. Typically, it is based on the fact that an information to obtain a search warrant is heavily redacted to protect the identity of a confidential informant or informants. Garofoli Step 6 is the procedure whereby the prosecution provides as much information as possible (such as an edited judicial summary of the redactions). The sixth step is spelled out in Garofoli at para. 24:

If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[17] A Garofoli Step 6 hearing is not an inquiry into the truth or falsity of the information provided by the confidential informant or even into the merits of the allegations against the accused. In essence it is a hearing to determine whether, based on the redacted information (as well as all the other disclosure) the defence can make full answer and defence by challenging the preconditions to the authorization or the search warrant. That means that the accused must be able to challenge the facial and sub-facial validity of the information to attain, especially whether the Debot criteria have been met.

[18] The accused accesses the redacted information through a judicial summary. A judicial summary of the redacted information is prepared: R. v. Crevier, 2015 ONCA 619 at paras. 63-68, 70. Usually, Crown counsel will prepare a draft, but it is ultimately the judge’s responsibility to ensure that the summary faithfully reflects the redacted material. The judge must be satisfied that the judicial summary contains as much information as possible so that the accused can mount that sub-facial attack: R. v. Crevier, 2015 ONCA 619 at paras. 83 and 84. At para. 84 of R. v. Crevier, Rouleau J.A. set out some of the information that could form part of the judicial summary:

• The source of the informer's information (first-hand, hearsay, and if hearsay, the source of that hearsay)
• The informer's relationship with/to the accused and how they first came into contact
• The length of time the informer has known the accused and the frequency of contact between them
• Whether the informer has previously provided information to police
• Whether previous information provided (if any) has led to arrests, seizures, or convictions
• Whether past information provided by the informer has ever been proven unreliable or false
• Whether the informer has a criminal record and, if yes, whether the unredacted ITO includes details of the convictions or charges or whether a copy of the criminal record was appended
• Whether the informer has convictions for offences of dishonesty or against the administration of justice
• The informer's motivation for speaking to police, including whether consideration was sought or arranged
• Whether the informer was instructed on the penalties for giving false information
• Whether descriptions provided by the informer match the accused or the target location
• The degree of detail of the information that the informer provided to police
• The recency or timing of the information that the informer provided to police
• Any discrepancies between the information of one informer and another
• Any aspects of the informer's information that are contradicted by police investigation or otherwise detract from its credibility
• Any errors or inaccuracies that exist in the ITO, and their nature (e.g. typographical errors).

[19] These factors obviously do not fully apply where there is no search warrant and no justice who can be misled by the presence of misleading information or the absence of information. That said, obviously a court reviewing a claim of entrapment will want to ensure that the accused has sufficient information to make full answer and defence. Practically, that means being able to test the application of the Debot criteria, modified to suit the circumstances.

[20] There are important differences between a Garofoli Step 6 hearing and a situation like this one, where the police act on informant information but do not need to meet the more strenuous requirements for a search warrant. In particular, as the Court of Appeal noted in R. v. Buffong, 2024 ONCA 660 at para. 4, the Debot factors “are applied more leniently because reasonable suspicion is a lower standard than reasonable and probable grounds.”

[21] The informant handler provided the following information to DC Gerry (found in Exhibits 1 and 2), some of which I have already mentioned:

• The date, time, and type of communication between the handler and the informant, and that the informant was an ongoing source of information to the handler.
• The informant provided firsthand information that:
  • Someone reached out to the informant advertising that they are selling cocaine;
  • The informant was provided with a telephone number of 437-374-3905;
  • The police could reach out to this target, indicate that they are looking for party favours, and this target will usually deliver;
  • The informant could not provide a drop name for the target.
• The informant provided further detail(s) about drug trafficking that was unrelated to the target.
• The handler provided no information to DC Gerry relating to whether nor not the police tested and/or acted upon this other information.
• The handler provided no information to DC Gerry as to whether the informant had a criminal record or a history of providing reliable information.

[22] DC Gerry was aware of the information in the redacted “tip sheet” (Exhibit 2). The unredacted “tip sheet” (Exhibit 3) was sealed but was before me.

[23] As the process unfolded, the Crown provided further information to counsel, some of which was redacted. The unredacted information was provided to the Court. Exhibit 4 was a “Redacted Crown Summary Of Handler Further Information”; Exhibit 5 contained the unredacted information. Exhibit 6 was later provided, a “UC Further Information – Crown Summary”; an “Explanatory Note Re: Further Details About the Source” became Exhibit 7, and contained unredacted material. Exhibits 5 and 7 with the unredacted information, were sealed but before me.

[24] The information in Exhibit 4, the Crown Summaries Of Handler Further Information, included the following:

• The handler knew whether the CI had outstanding charges or a criminal record.
• The handler knew the CI’s motivation.
• The CI had begun providing information to the Toronto Police within 6 months of the initial phone call. The handler provided the tip sheet within 6 months of the first phone call.
• The CI was a “carded” informant with the Toronto Police and had been cautioned about providing false information.
• The handler knew that the source had no convictions for crimes of dishonesty;
• The handler was aware of past successful uses of the CI and provided dates and whether the CI had proven truthful.
• The handler gave the tip sheet to the Toronto Police Drug Squad but did not know if other information listed in it was investigated.

[25] Exhibit 6, the UC Further Info – Crown Summaries, included the following:

• Further details about the CI and the CI’s involvement in criminality.
• DC Gerry did not know if the CI had outstanding charges at the time.
• DC Gerry did not know the CI’s motivation.

[26] DC Gerry testified that he was not aware of all of the information contained in Exhibits 4 and 5 prior to contacting Mr. Davey.

[27] In this case, the Crown provided certain redacted information to the defence about the nature and content of the information provided to the undercover officer by the informant handler. As submissions were made, further information was provided by the Crown. I have already summarized some of that edited information. In accordance with the Garofoli Step 6 procedure, I reviewed the unredacted material. I am satisfied, based on my review of the unredacted material, that the redacted material was a fair and material summary of the critical information. I am also satisfied that the defence was able to make full answer and defence based on the redacted material. Full answer and defence is not something that is fixed; it depends on the circumstances. When I apply the criteria set out in R. v. Crevier, I am satisfied that the defence had the information necessary to challenge whether the police had reasonable suspicion. Although I do not, ultimately, agree with the defence position, the defence submissions were compelling and fulsome.

[28] Counsel for Mr. Davey took the position that the Court should not consider the information in Exhibits 4, 5, 6, and 7 because DC Gerry either did not know that information or knew only some of it. In other words, the defence could not fully test the credibility of the CI or of the CI’s information.

[29] I cannot fully agree. While it is true that what matters is whether DC Gerry had reasonable suspicion, what the handler knew is not irrelevant. As the majority of the Supreme Court stated in R. v. Ahmad, 2020 SCC 11 at para. 82:

The court can consider all the objective factors known to members of the investigative team at the relevant time in determining whether the decision was made with reasonable suspicion. Obviously, police officers must be able to rely on the investigative work of other officers and it is not necessary for the particular officer making the call to personally have all the information that supports reasonable suspicion (see, e.g., Debot, at p. 1166). Police work often relies on multiple officers conducting individual parts of an investigation. In the context of dial-a-dope investigations, several lower courts have also taken this approach…

[30] In this case, the handler informed DC Gerry that the informant was reliable because he had been used in the past. DC Gerry was not provided with any further information about the informant, including whether the informant had been arrested or convicted, or the informant’s motivation. The informant handler, however, had that information. As a reviewing judge (in the Garofoli sense) I cannot completely discount that information. Moreover, as will be seen in the next section of these reasons, the ability of the defence to test the information in Exhibits 4 to 7 is largely of no moment, because my view is that the tip and the informant had very limited credibility in these circumstances.

[31] Based on the information that was provided during the Garofoli Step 6 process, however, I am satisfied that the defence was able to make full answer and defence in the context of an application where the lower threshold of reasonable suspicion applies.

(b) Did DC Gerry Have Reasonable Suspicion?

[32] Counsel for Mr. Davey argued that DC Gerry did not have reasonable suspicion when he first texted Mr. Davey and asked: “hey you available”. Further, the mere positive answer did not create reasonable suspicion. DC Gerry demonstrated tunnel vision because during his testimony he stated that it was a common way of starting a conversation with a drug dealer – assuming right from the beginning that the person on the other end of the line was, in fact, a drug dealer. DC Gerry moved right into the deal by mentioning party favours before taking any further steps to confirm the information. In other words, the Debot criteria were not met.

[33] Again, I respectfully disagree. I find that the lower threshold for reasonable suspicion was met when Mr. Davey answered positively to the question “hey u available”. I agree that the police did not have reasonable suspicion prior to that point, but based on the totality of the circumstances, including all of the information known to the police about both the informant and the target, reasonable suspicion crystallized at that point.

[34] The police entrap a target when they provide a person with an opportunity to commit an offence without reasonable suspicion that the person is already engaged in crime or pursuant to a bona fide inquiry; or, the police have reasonable suspicion but go beyond providing a person with the opportunity but actually induce the commission of the offence: R. v. Mack, [1988] 2 S.C.R. 903 at paras. 121-122, 138. The critical point is that the police are not to engage in random virtue testing: R. v. Mack at para. 138; R. v. Barnes, [1991] 1 S.C.R. 449 at paras. 23-27.

[35] The defence argument in this case is premised on the first branch of Mack. The argument is, as I have mentioned, that the police did not have reasonable suspicion when, in the course of the text conversation, they offered the opportunity to Mr. Davey to commit the offence.

[36] In assessing whether the police have reasonable suspicion, a reviewing court looks to the Debot factors and asks these three questions: first, was the information compelling? Second, was the informant credible? And third, was the information provided by the informant corroborated? See: R. v. Debot, [1989] 2 S.C.R. 1140 at para. 60. A deficiency in one of the Debot factors can be made up with strength in the other two areas: R. v. Debot, supra, at para. 60; R. v. Buffong, supra, at para. 4. I specifically find:

• The tip was compelling. The information provided by the informant was specific. There were four specific pieces of information: a telephone number; information that someone was advertising that they were selling cocaine; that the police could reach out and indicate they were looking for party favours; and that the target would usually deliver the drugs. That was a significant degree of specific information related to a specific telephone number.
• Given the lack of information about the reliability or history of the informant, the tip had a limited amount of credibility, although I would not say it had no credibility. The only information available to DC Gerry (other than the specifics of the tip itself) was that the informant had provided information in the past. There was information that may not have been known specifically by DC Gerry but was known institutionally by the Toronto Police. The informant handler did have a great deal of information about the confidential informant.
• I find that the tip was sufficiently corroborated when the officer received the response of “hi yes im available today”. I accept DC Gerry’s evidence that in his experience (even if it was only one year on the drug squad) a positive response to a question of this nature indicated that the target had drugs available for sale. DC Gerry testified that he had engaged in numerous drug-related conversations. He may not have been the most experienced drug squad officer, but there was nothing to suggest he was not telling the truth or that his evidence was implausible. As well, while he only had one year on the drug squad, DC Gerry was an experienced police officer. Moreover, common sense suggests that a positive response to an open-ended question means that the person answering is not confused about the nature of that question. After all, the recipient of the question did not respond “who is this?” or “what is this about?” As well, the recipient did not simply fail to respond, as might be expected if he thought it was a kind of junk mail in some form. Although DC Gerry formed reasonable suspicion after the initial response, it should also be noted that there was a positive response to the reference to favours and delivery – two aspects of the tip.

[37] DC Gerry testified in cross-examination that he was not provided with information from the handler as to whether the tip itself was corroborated. The police are not required to corroborate the actual criminal activity. That would be an impossible standard to meet in many, if not most cases. What is important is that all corroborative information be taken together: R. v. Ifesimeshone, 2024 ONCA 834 at para. 30. The corroboration in this case were the responses received from Mr. Davey, especially the initial response. The police can form reasonable suspicion based on the responses received, even if they do not have reasonable suspicion when they make the call (or the text) to the suspected drug dealer. The target’s responsiveness to the tip can confirm the tip’s reliability: R. v. Ahmad, supra, at paras. 54-55.

[38] That is what happened here. I find that the police had sufficient information to send a text, but not enough to form reasonable suspicion. The limited credibility of the tip was made up by the compelling nature of it and the subsequent corroboration during the text conversation: Debot, at para. 60. “Hey you available” was language specifically chosen by DC Gerry because that was the language that, he testified, would be recognized by drug dealers. I disagree that DC Gerry showed tunnel vision by assuming right from the beginning because he assumed that the target was a drug dealer. I think that is not tunnel vision; that is a working theory based on information known to him. If DC Gerry had received a different response, such as “who is this?” or a series of responses that did not indicate drug trafficking, and yet persisted, that would be an indication of tunnel vision. The police must approach an investigation with an open mind, but that does not mean that they cannot have a working theory and then test it. After receiving the positive response, DC Gerry then asked a question that was specific to the tip: whether the person on the other end had “favours”. Even if I am wrong that reasonable suspicion crystallized after the first response, there is no question that it crystallized when DC Gerry mentioned “favours” in his text. The mention of “favours” cannot be construed as going beyond offering the opportunity to commit the offence and then inducing it. “Favours” is a neutral term on its own. DC Gerry testified that it usually specifically means a party drug.

[39] I respectfully disagree with the defence argument that because “yes I’m available” could have pertained to some other crime, such as the purchase of sexual services, it was too ambiguous for DC Gerry to have continued the conversation. I accept DC Gerry’s evidence in that respect.

[40] I therefore find that the police had reasonable suspicion to believe that Mr. Davey was engaged in drug trafficking when they offered him the opportunity to commit an offence after asking that initial question.

Disposition

[41] The application for a stay of proceedings based on entrapment is dismissed.

R.F. Goldstein
Released: January 21, 2025