R. v. Gladue, 2011 ABQB 194

Court of Queen ’ s Bench of Alberta Citation: R. v. Gladue, 2011 ABQB 194 Date: 20110325 Docket: 090863572Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - Chay Brooks Gladue Applicant/Accused Corrected judgment: A corrigendum was issued on April 11, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________ I. Introduction [ 1 ] Mr.

Gladue (“the Accused”) is charged with one count of unlawfully trafficking a controlled substance, cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c.19. [ 2 ] On November 9, 2010, Mr. Gladue appeared before me and pled guilty to that charge. On that same date, his counsel applied for a stay of the charge against him, alleging an abuse of process caused by police entrapment. The Crown led their evidence related to that application that day.

[ 3 ] Due to the importance of this issue, the Crown requested that both parties make written and oral submissions about the possibility of police entrapment in this matter. I agreed, and the parties came back before me on February 10, 2011 to argue that issue alone. On that date, the parties requested a further adjournment to March 10, 2011 to prepare their materials and submissions. I agreed, and the hearing on this issue took place on March 10, 2011. [ 4 ] For the reasons that follow, I find that Mr. Gladue is entitled to a stay. II.

Facts [ 5 ] In May of 2009, Sergeant Bruce Edwards was employed with the Edmonton Police Services (“EPS”) as the Sergeant in charge of the Undercover Operations Unit. [ 6 ] During that month, Sergeant Edwards received a “Drugs Undercover Street Team Request for Assistance Form” (“the Form”) from Constable David Crisp via interdepartmental mail. The Form stated that Constable Crisp had received two “dial-a-doper” numbers from an informant.

This matter only involves one of the two phone numbers supplied (“the dial-a-doper number”). [ 7 ] As Sergeant Edwards explained during the hearing on November 9, 2010, a dial-a-doper operation is a method used by drug traffickers to traffic to the street-level drug user. Essentially, users gain access to a specific phone number after achieving a certain level of trust with the traffickers, and the number can be used to arrange purchases of a variety of drugs. Presumably, the level of trust is to ensure that the phone number does not fall into the hands of the police.

Sergeant Edwards’ explanation did not form expert evidence of what constitutes a dial-a-doper operation, and is only included to give context to the investigation completed by the EPS. [ 8 ] The Form submitted to Sergeant Edwards stated that the dial-a-doper number was being used to sell crack cocaine in the “downtown areas of Edmonton”. The informant stated that the drugs were often sold at the “Mac D’s at 82nd and 75th”. Constable Crisp testified on November 9, 2010 that he understood this phrase to mean the McDonald’s on 82 Avenue and 75 Street in Edmonton.

The informant also stated that a typical area where these drugs are sold was 83 Avenue and 79 Street, also in Edmonton. [ 9 ] The Form did not give Sergeant Edwards a vehicle description nor a physical description of any individuals associated with the dial-a-doper number. [ 10 ] At the time he received the Form, Sergeant Edwards did not do a police database search of the dial-a-doper number, nor did he attempt to obtain any additional information on the tip.

According to his evidence on November 9, 2010, Sergeant Edwards assumed that any investigation on the tip had already been conducted by the police officer supplying the number. [ 11 ] Sergeant Edwards also testified that had the Form included some problem with the information, he would have contacted the reporting officer directly to verify its contents, but that usually the information provided to him on these forms is quite sparse, generally just a name and a phone number. [ 12 ] Constable Crisp testified that he did not have any corroborating information relating to the dial-a-doper number, nor did he attempt to verify the accuracy of the informant’s information through other investigative techniques. [ 13 ] On June 23, 2009, Sergeant Edwards instructed Constable John Smith to phone the dial-a-doper number to arrange a purchase of cocaine.

Constable Smith first called the dial-a-doper number at 21:56 p.m. on the night of June 23, 2009, and spoke with an unknown male. [ 14 ] Constable Smith testified before me that he asked the male if he was “rolling.” During the preliminary inquiry on June 24, 2009, Constable Smith said he asked if the male was “working” or “rolling”, and in cross-examination on November 9, 2010, Constable Smith agreed with defence counsel that he did not remember exactly what wording he had used. After this question, the male on the

phone answered that he was, and asked “Who are you?”. Constable Smith responded, “Johnny.” The male then asked what the officerwas looking for. [15] Constable Smith asked for four half-gram pieces of crack cocaine for $100.00, by saying “I would like to get four for onehundred.” After replying that the price would be $110.00, the male on the phone told Constable Smith to meet him at Bonnie DoonShopping Centre. Constable Smith responded that he was in a different part of the city, and that it may take him awhile to get to BonnieDoon Shopping Centre.

The male on the phone requested that Constable Smith call when he was ten minutes away. [16] Upon arriving at Bonnie Doon Shopping Centre, Constable Smith called the dial-a-doper number a second time, advising themale on the phone that he was ten minutes away. The male directed Constable Smith to meet him in front of the sports bar in the mallarea, and Constable Smith provided a description of his covert police vehicle to the caller.

He then hung up and called Sergeant Edwards,who directed Constable Smith to attend at the sports bar. [17] Constable Smith parked just outside “Bonnie’s Lounge” on the west side of Bonnie Doon Shopping Centre and called thedial-a-doper number a final time to ensure that the individual was on his way. The male answered, replying that he was five minutesaway from the meeting area. During one of the calls, the male on the phone apologized for being late. [18] In total, Constable Smith made three calls to the dial-a-doper number.

Constable Smith could not identify the person on thephone from his voice, and he could not tell if it was the same person who had answered the phone all three times. [19] After ten minutes, the Accused arrived in a Cadillac, which he pulled up next to Constable Smith’s car so that the two spokethrough their driver’s side windows. The Accused again apologized for being late. Constable Smith gave him $120.00 of police buymoney, and the Accused gave him four pieces of suspected cocaine and $10.00 in change.

The Accused then apologized again for beinglate and said that Constable Smith should call anytime. [20] Defence counsel took no issue with the fact that the substance provided by the Accused was crack cocaine, nor the weight ofthe cocaine, which Constable Smith testified was approximately 2 grams. The Accused was then arrested. [21] At the hearing on November 9, 2010, counsel for the Defence chose not to call any evidence. III. The Law [22] The Accused has made an application for a stay of proceedings.

The burden of proof is on the Accused to show, on a balanceof probabilities, that the conduct of the EPS amounted to an abuse of process in the form of entrapment. [23] The law of entrapment was described by the Supreme Court of Canada in the case of R. v. Mack, (SCC),[1988] 2 S.C.R. 903 (“Mack”) as an attempt to balance two equally desirable objectives. It is crucially important that police in Canada beallowed considerable leeway in their investigation of crime.

However, this objective must be balanced against the right of citizens to befree from the police engaging in random virtue testing, or inducement of criminal activity. [24] The Mack decision of the Supreme Court is the leading case in Canada for the test for entrapment. At pp. 964-965, JusticeLamer sets out the two principal branches of the test: ... there 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 isalready engaged in criminal activity or pursuant to a bona fide inquiry;

(

b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunityand induce the commission of an offence. [25] The R. v. Barnes, (SCC), [1991] 1 S.C.R. 449 (“Barnes”) decision of the Supreme Court reaffirmed the testin Mack, but clarified it by outlining the “bona fide inquiry” exception to the general rule against entrapment.

At p. 463 of that decision,Justice Lamer wrote that: An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspectedthat criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any personassociated with the area with the opportunity to commit the particular offence.

Such randomness is permissible within the scope of abona fide inquiry. [26] In Barnes, an undercover police officer approached an individual in a notorious area of drug trafficking in Vancouver, askinghim if he had any marijuana. The Supreme Court found that despite a lack of reasonable suspicion that the accused in that case wasengaged in criminal activity, the police acted pursuant to a bona fide investigation.

Central to this conclusion were Justice Lamer’sfindings that the police were genuinely attempting to investigate and repress criminal activity, and that the area that the police weretargeting was sufficiently precise to exclude the possibility of “random virtue-testing.” [27] Justice Lamer defined random virtue-testing as the opposite of a bona fide investigation at p. 463 as follows: Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence withouta 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. [28] This test, created in Mack and refined in Barnes, remains the leading test in Alberta, as the Alberta Court of Appeal wrote inthe recent case of R. v.

Juneja, 2010 ABCA 262 at para. 24, decided in September, 2010. [29] In sum, the Supreme Court has held that in order for the police to present an individual with an opportunity to commit a crime,the police must prove that they reasonably suspected one of two possibilities: either that the individual is already engaged in a criminalactivity, or that the physical location with which the individual is associated is a place where criminal activity is occurring.

The scope ofreasonable suspicion is therefore central to this case. [30] Reasonable suspicion is a lower standard than “reasonable and probable grounds,” but a higher standard than mere suspicion.The jurisprudence on this was summarized by Justice Hill in the case of R. v. Williams, 2010 ONSC 1698 at para. 44, a portion of whichI will reproduce here: . . .

(3) The reasonable suspicion standard has been described as not “unduly onerous” (R. v. Mack, at 554) and “necessarily ...low”: R. v.Cahill (1992), (BC CA), 13 C.R. (4th) 327 (B.C.C.A.) at 339. It is an intermediate standard: R v. A.M. (2008), 2008SCC 19 , 230 C.C.C. (3d) 377 (S.C.C.) at para. 60, 82. Because reasonable suspicion “is a less demanding standard thanreasonable grounds” (R. v. Bennett (1996), (QC CA), 108 C.C.C. (3d) 175 (Que. C.A.) at 183), it has been correctlyobserved “that a reasonable suspicion will much more frequently be wrong than will be reasonable and probable grounds”: T.

Quigley,“Brief Investigative Detentions: A Critique of R. v. Simpson” (2004) 41 Alta. L. Rev. 935, at para. 20.

(5) While a reasonable suspicion involves lesser probability than reasonable and probable grounds, it cannot be limited to a hunch orfeeling without extrinsic evidence: R. v. Barnes, at para. 16. Accordingly, the standard is not a hunch based on intuition gained byexperience (R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 at para. 30) or a well-educated guess: R. v. A.M., at para. 91. Anofficer's subjective belief must be accompanied by objectively verifiable evidence supporting reasonable suspicion: R. v. A.M., at para.42, 80.

(6) What is reasonable “by its very nature, must be assessed in context”: R. v. Jackpine (2006), 2006 SCC 15 , 207 C.C.C.(3d) 225 (S.C.C.) at 243. The totality of circumstances viewed as a whole must be considered: R. v. Jacques, (SCC),[1996] 3 S.C.R. 312 at para. 25. Reasonable suspicion “is dependent on both the content of the information provided to the police and itsdegree of reliability”: R. v. Lal [(1998), (BC CA), 130 C.C.C. (3d) 413 (B.C.C.A.)], at para. 30; R. v.

Bennett, at 181.While the existence of reasonable suspicion is very much a fact-specific inquiry, “it is important that the test laid out in Mack not beapplied in a mechanistic fashion. If it is, there is a danger that sight will be lost of the rationale for the defence of entrapment that hasbeen elucidated in that decision”: R. v. Benedetti, [[1997] A.J. No. 536 (C.A.)] at para. 19. [31] If entrapment is found in this case, then this Court must consider granting a stay of proceedings to the Accused. In theSupreme Court decision of R. v.

Jewitt, (SCC), [1985] 2 S.C.R. 128, the Supreme Court held a stay of proceedings wasthe appropriate remedy for an abuse of process claim when an accused has pled guilty, at p. 148: The stay of proceedings for abuse of process is given as a substitute for an acquittal because, while on the merits the accused may notdeserve an acquittal, the Crown by its abuse of process is disentitled to a conviction.

No consideration of the merits -- that is whether theaccused is guilty independently of a consideration of the conduct of the Crown -- is required to justify a stay. [32] Even though this remedy is associated with the allegation of entrapment, a stay in this context should still only be granted inthe “clearest of cases” (Mack at p. 974). IV. Issues [33] The following questions will determine whether entrapment occurred in this case: 1. Did the police give the Accused an opportunity to commit a crime? 2. Did the police action fall into one of the two legitimate exceptions to entrapment: (

a) Did the police have reasonable suspicion that the Accused was already engaged in criminal activity, or (

b) Did the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity isoccurring? 3. Notwithstanding falling into one of the exceptions, did the police go beyond providing an opportunity and induce the commissionof an offence? [34] On the facts before me, there is no indication that inducement was present in this case. An analysis of question three istherefore unnecessary and will not be considered in this decision. V. Positions of the Parties A. The Position of the Defence

[ 35 ] The Accused argues that this is a clear case of police entrapment that can only be remedied by a stay of proceedings. [ 36 ] The distilled argument of the Defence is that the EPS did not have a reasonable suspicion to believe that the Accused was already engaged in a criminal activity, nor did they engage in a bona fide investigation, as they did not focus on a sufficiently precise geographic area. [ 37 ] Regarding reasonable suspicion of the Accused’s criminal activity, the Defence submits that neither Sergeant Edwards nor Constable Smith had any information about this particular Accused before calling the dial-a-doper number on June 23, 2009.

They did not have a physical description of the Accused, nor did they have a description of his vehicle or license plate to match with the person who answered the dial-a-doper number. Constable Crisp testified that he had names associated with the dial-a-doper number, but none of these names were adduced at trial, and Mr.

Gladue’s name was not mentioned. [ 38 ] Regarding the lack of a bona fide investigation, the Defence argues that a “cold call” to a phone number, with no idea of who would answer the phone, is not sufficiently precise policing to meet the requirement that police not engage in random virtue-testing. [ 39 ] One major concern of the Accused is the fact that the reasonable suspicion of the EPS rested heavily on an informant tip.

Defence counsel was prevented from acquiring information on the tipster due to informant privilege, meaning that the reasonable suspicion of the police was hard to ascertain either through disclosure or from the prosecution’s case at trial. [ 40 ] Due to the fact that police were unable to confirm that this particular Accused was associated with the dial-a-doper number, the fact that the tip gave two Southside addresses after stating that the drugs were sold in “downtown areas of Edmonton,” and the fact that the informant had a criminal record, the Accused submits that the tip was not compelling nor credible enough to give the police the reasonable suspicion required to proceed. [ 41 ] The Defence also notes that the tip was not corroborated, as the police failed to do any searches that would link this particular Accused to the dial-a-doper number given by the tipster.

Further, Constable Smith did not ask the male on the phone to meet in one of the locations listed by the informant, instead letting the male on the phone designate Bonnie Doon Mall as the meeting point. [ 42 ] Finally, the Defence submits that there may be deeper concerns underlying the tip collection practices of EPS, as it appears the higher-level members on the drug team do not do deeper research into the credibility of the tip, and the street-level members do not disclose any facts relevant to the credibility of the informant on the form submitted to their Sergeant. B.

The Position of the Crown [ 43 ] First, the Crown argues that the Defence failed to make out the first step in alleging that entrapment occurred here, as there was no solid evidence that the police ever offered this Accused an opportunity to commit a crime. Crown counsel noted that Constable Smith was not certain in his testimony who was communicating with him on the phone. Further, the evidence of the Constable was confused and there were no notes to add credibility to his assertions.

Finally, the Crown asserted that the phrase “four for one hundred” could not be interpreted as an opportunity to commit a crime without expert testimony on what that phrase meant in the drug world. [ 44 ] In the Crown’s submission, it is equally possible that it was a criminal confederate speaking with the officer, and that there is no way to know whether the police spoke with the Accused at all before meeting him at Bonnie Doon Shopping Centre.

The Crown submits that the Defence application for entrapment must fail on this ground. [ 45 ] In the alternative, the Crown argues that the police in this case did have subjective and objective reasonable suspicion that the

Accused was engaged in criminal activity when the opportunity to sell drugs was given by the police. [ 46 ] Objectively, the police had the informant information given to Sergeant Edwards by Constable Crisp. This information included a specific dial-a-doper number, known to be used for trafficking cocaine, and names and locations associated with that number. [ 47 ] Subjectively, Constable Crisp knew that the informant had personal knowledge that the phone number was being used to traffic drugs.

Constable Smith felt that the conversation leading up to the phrase “four for a hundred” indicated that the individual on the phone was a drug dealer. [ 48 ] By asking if the male was “rolling,” the Crown submits that Constable Smith gained additional grounds to form subjective reasonable suspicion that the phone number was associated with drug trafficking.

Additionally, the fact that the male on the phone asked what the caller was looking for and did not ask details about who the caller was gave additional reasonable suspicion to the police. [ 49 ] In sum, the Crown asserts that the EPS did in fact have reasonable suspicion about the Accused when the opportunity to traffic cocaine was provided to him. [ 50 ] The Crown asks that I dismiss this application for a stay. VI. Analysis 1.

Did the police give the Accused an opportunity to commit a crime? [ 51 ] The question that must be considered at this stage is whether I was convinced, on a balance of probabilities, that the police offered the Accused an opportunity to sell drugs. [ 52 ] As noted above, this question was highly contested during the hearing before me on March 10, 2011. The Crown submitted that Constable Smith did not know who was on the phone and the Accused did not testify, meaning that I have no firm evidence to find that the Accused was the male who answered the dial-a-doper number.

Defence counsel responded that there were enough facts in this case to suggest that the Accused was in fact on the phone with Constable Smith and was therefore offered an opportunity to commit a crime by the police. [ 53 ] I am satisfied on a balance of probabilities that the police in this case did offer the Accused an opportunity to commit a crime. The following are the reasons why I believe that this to be more likely than not: 1. The individual on the phone was male. The Accused is a male. 2. The individual on the phone said he would “meet” Constable Smith at the sports lounge near Bonny Doon Mall.

The Accused was the one who met Constable Smith at the sports lounge near Bonny Doon Mall. 3. The individual on the phone told Constable Smith that he would be arriving late. The Accused arrived late and apologized to Constable Smith for arriving late twice during the exchange. 4. The individual on the phone offered Constable Smith four grams of cocaine for one hundred and ten dollars. When the Accused arrived, he sold Constable Smith four grams of cocaine for one hundred and ten dollars, without any conversation about what Constable Smith wanted.

5. There was no evidence before me that anyone other than the Accused answered the phone. There was no indication that the Accused had any criminal confederates, that he belonged to a drug organization that divided its members up for various tasks, and there was no evidence that the Accused was with anyone in his car when he arrived. [ 54 ] When those facts are considered, I am convinced on a balance of probabilities that the Accused was the individual on the phone when Constable Smith called the dial-a-doper number.

Any other suggestion by the Crown is based on pure speculation. [ 55 ] I am also convinced on a balance of probabilities that the statement by Constable Smith, “I would like four for one hundred”, was an opportunity for the Accused to commit a crime. Although I did not have expert testimony on the meaning of this phrase, I did have testimony from Constable Smith that he was using this phrase intentionally to solicit drugs from the Accused, that was his stated goal.

I also know that the Accused understood this statement to be a request for drugs, as the Accused began negotiations as to price as soon as this statement was uttered. [ 56 ] Accordingly, I find that the police did present an opportunity for the Accused to commit a crime when the statement “I would like four for one hundred” was said by Constable Smith. 2.

Did the police action fall into one of the two legitimate exceptions to entrapment? [ 57 ] The two legitimate exceptions to entrapment are when the police have a reasonable suspicion that the Accused was already engaged in criminal activity, or when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. [ 58 ] There were no oral submissions made on the second exception to police entrapment, pertaining to a sufficiently precise geographical area and a bona fide police investigation.

I will therefore limit my analysis in this case to the following question: am I convinced, on a balance of probabilities, that the police did not have a reasonable suspicion that the Accused was already engaged in criminal activity? i.

Before the call was made [ 59 ] I find that the police did not have reasonable suspicion that the Accused was already engaged in criminal activity before the dial-a-doper number was dialed by Constable Smith. [ 60 ] The collective knowledge of the police before the call was the following: Knowledge of Constable Crisp: · Constable Crisp knew the dial-a-doper number, · Constable Crisp knew the informant personally, and knew that the informant had personal knowledge that the dial-a-doper number was being used to traffic cocaine, · Constable Crisp knew names associated with the dial-a-doper number, though at trial none of these names were adduced,

· Constable Crisp knew certain specific locations where the individual answering the dial-a-doper usually trafficked cocaine, and · Constable Crisp knew that the informant had a criminal record. Knowledge of Sergeant Edwards: · Sergeant Edwards knew the dial-a-doper number, and · Sergeant Edwards knew that the dial-a-doper number could lead to a purchase of cocaine. [ 61 ] There is no indication, in any of this information, that the EPS had any knowledge of Mr. Gladue personally.

Constable Crisp may have been aware of names associated with that number, but no evidence was led that those names included “Chay Gladue”. [ 62 ] The EPS practice on these dial-a-doper investigations was, according to Sergeant Edwards in his testimony, “basically a cold call to this unknown person.” [ 63 ] In the decision of R. v. Swan , 2009 BCCA 142 (“ Swan ”), the British Columbia Court of Appeal considered a very similar situation. In that case, the Det. Cst.

Cratchley stated that in order to combat dial-a-doper operations, his department would make “cold calls” and that “95 percent or more would be an unknown person, unknown name, everything unknown from start to finish” (at para. 25). [ 64 ] The British Columbia Court of Appeal found that cold-calling numbers that were suspected to be associated with drug trafficking was insufficient for reasonable suspicion. In the Swan decision at para. 23 the Court wrote: In this case, it is common ground that the mere fact that Det. Cst. Cratchley gave Cst.

Dhaliwal a telephone number from his list did not give rise to a reasonable suspicion that the person who answered the phone was engaged in drug-related activity. At best, this piece of information amounted to “mere suspicion” that this may be so. [ 65 ] Before the call was made, I find that collective police knowledge was insufficient for reasonable suspicion that this particular Accused was already engaged in criminal activity. ii.

During the call [ 66 ] There is the possibility that during the call, the police could have furthered their investigation of the dial-a-doper number and developed reasonable suspicion that the Accused, personally, was involved in drug trafficking. [ 67 ] This is what occurred in the R. v. Imoro , 2010 ONCA 122 (“ Imoro ”), aff’d 2010 SCC 50 . In that case, the police knew that someone was selling drugs on the twelfth floor of an apartment building. An undercover police officer rode an elevator to the twelfth floor with another unknown individual, and when they got off the elevator, they were greeted by Mr.

Imoro, who told them both to come with him. The undercover officer asked Mr. Imoro “can you hook me up?” and Mr. Imoro responded “yes.” [ 68 ] The Ontario Court of Appeal found that at this point, the officer did not have reasonable suspicion that Mr. Imoro was trafficking drugs. As Justice Laskin wrote for the Court at para. 14 of that decision: I accept the trial judge's finding that when the officer asked Mr. Imoro, “Can you hook me up?” he did not have reasonable suspicion that

Mr. Imoro was engaged in drug trafficking. [69] It was only when the officer viewed Mr. Imoro dealing drugs to the unknown individual from the elevator that the officergained sufficient reasonable suspicion to offer Mr.

Imoro an opportunity to commit a crime. [70] In this case, the EPS gained the following knowledge during the call to the Accused: Knowledge of Constable Smith: · Constable Smith knew the dial-a-doper number, · Constable Smith knew that the male on the phone was willing to converse with an unknown individual, · During the call, Constable Smith knew that the Accused answered affirmatively to being asked if he was “working” or “rolling”,and · During the call, the caller asked Constable Smith what he was looking for. [71] I find that even with the addition of this knowledge, the police did not have reasonable suspicion that the Accused wasengaged in a criminal activity when Constable Smith told the Accused he would like “four for one hundred”. [72] Even if Constable Smith had a subjective intuition that this conversation was being held with a drug dealer, the SupremeCourt in R. v.

A.M. has stated that his subjective belief must be bolstered by objectively verifiable indicators, at para. 80: Of course if “reasonable suspicion” is construed as nothing more than a subjective standard, it may lead, as critics fear, to abuse in termsof arbitrary police action and racial profiling. Realistically, the possibility of after-the-fact accountability will not help a lot of innocentpeople who have been put to embarrassment by false positives.

However, “reasonable suspicion” requires the police officer's subjectivebelief to be backed by objectively verifiable indications, as is discussed more fully in Kang-Brown [2008 SCC 18] and by the B.C. Courtof Appeal in R. v. Lal (1998), (BC CA), 113 B.C.A.C. 47. [73] Looking at the conversation between Constable Smith and the Accused, there is a lack of objectively verifiable indications tosuggest that the Accused was engaged in criminal activity before Constable Smith asked for the drugs.

The conversation up to that pointwas the following: “Are you working/rolling?”, “Yes, who are you?”, “Johnny”, “What are you looking for?”. The only phrase I see inthat conversation that could lead the police to believe that this individual may be engaged in criminal activity is the Accused’s positiveresponse to the question about him “working” or “rolling”. [74] Defence counsel made numerous submissions on the way that “rolling” or “working” could be interpreted that does notnecessarily suggest a drug interaction.

Further, I did not have any expert testimony on street jargon or drug trafficking terminology toassist me in determining whether this did in fact create a reasonable suspicion on the part of the police that the Accused was traffickingdrugs. [75] The Swan decision is also instructive on this point. In that decision, the Court ruled that the phrase “are you working” isinsufficient for reasonable suspicion. At para. 28 of that decision, the Court held: In my view, the trial judge erred in relying on Mr. Swan's conduct following his affirmative answer to the question of whether he was

working as a basis for concluding that Mr. Swan was dealing in drugs. That question and answer were readily susceptible to a perfectly innocent characterization; that is, that Mr. Swan was working, as opposed to trafficking in illicit drugs. Such a question and answer cannot be viewed as having an inherent, or even a likely, drug connotation. The same is true of the brief conversation at the outset of the call. The inherent ambiguity of the question “Are you working?” was acknowledged by Det. Cst.

Cratchley, who described one cold call in which the same script was followed and the recipient of the call thought that he was being invited to sell some tools to the undercover operator. [ 76 ] The knowledge gained by Constable Smith on the phone with the Accused was simply too imprecise and too vague to bolster the already insufficient suspicion of the police prior to the call. I am unable to find that the police had a reasonable suspicion that the Accused was engaged in criminal activity at the time when the opportunity to commit a crime was given to him over the phone. VII.

Conclusion [ 77 ] I find that the defence has established entrapment. The application for a stay of proceedings is granted. Heard on the 9 th day of November, 2010, the 10 th day of February, 2011 and the 10 th day of March, 2011. Dated at the City of Edmonton, Alberta this 25 th day of March. J.J. Gill J.C.Q.B.A. Appearances: Daniel Song Song Law Corporation For the Applicant/Accused Patrick Cashman Public Prosecution Service of Canada For the Respondent/Crown _______________________________________________________ Corrigendum of the Reasons for Judgment

of The Honourable Mr. Justice J.J. Gill _______________________________________________________ Please note the Citation Number has been corrected to read: Citation: R. v. Gladue, 2011 ABQB 194