R v Yousuf, 2015 ABQB 734

Court of Queen ’ s Bench of Alberta Citation: R v Yousuf, 2015 ABQB 734 Date: 20151118 Docket: 140080565Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Bikila Yousuf Accused Corrected judgment: A corrigendum was issued on December 1, 2015; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice S.L. Hunt McDonald _______________________________________________________

Introduction [ 1 ] At the commencement of these proceedings on September 28, 2015, the accused entered a plea of guilty on all six counts of the Indictment dated November 6, 2014 contrary to s 5(1) of the Controlled Drugs and Substances Act , and three counts of proceeds of crime contrary to s 354 of the Criminal Code of Canada.

This Court accepted the guilty plea. [ 2 ] The Court then commenced hearing of the accused’s claim of entrapment which he alleges justifies the Court to order a stay of proceedings on the basis he was induced to commit the crimes on the basis of improper police conduct. [ 3 ] Detective Christie of the drug unit was called to testify by the Crown.

He said the reason he started his investigation was that homicide officers had expressed their belief that the accused was a drug trafficker. [ 4 ] Defence counsel immediately requested an adjournment and made submissions requesting the Court to issue a judicial stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms or alternatively requested an exclusion of all hearsay communication attributed to the homicide officers by Detective Christie. [ 5 ] On September 30, 2015, I issued a decision that the stay application and request for exclusion of the evidence was premature. [ 6 ] As all the evidence has now been presented to this Court, the Applicant (accused) seeks an order staying the proceedings against him pursuant to sections 7 and 24(1) of the Charter and Rights and Freedoms on the basis of entrapment. [ 7 ] The Applicant (accused) also renewed the application for exclusion of all hearsay comments and opinions attributed to the “homicide offices” by Detective Christie.

Alternatively, the Applicant seeks a stay of proceedings under s 7 of the Charter pursuant to an abuse of process. Facts [ 8 ] Detective Christie has been employed with the Calgary Police Service (CPS) since 2006. He was a member of the drug unit from September 2011 until August 2013. He was the primary investigator involved in the investigation of the accused. Detective Christie is currently attached to the centralized investigation unit. [ 9 ] Detective Christie testified that homicide officers had expressed to him their belief that the accused was a drug trafficker.

Detective Malsam-Dudar from the CPS Homicide Unit provided Detective Christie with information that she believed indicated that the accused was a person who was involved in drug trafficking in Calgary. This information was provided to Detective Christie on August 29, 2012. [ 10 ] On that date, Detective Malsam-Dudar passed the following information to Detective Christie of the drug unit relating to the accused, namely:

a) a Crime Stoppers tip that a house at ** Whitefield Place N.E. which was related to the accused was suspected as a site of drug trafficking (the Crime Stopper tip was dated August 16, 2010);

b) She told Detective Christie she had received a verbal tip from a confidential source saying that someone by the name of “T” was a dealer of drugs;

c) a written report containing observations of surveillance on the accused conducted by the homicide unit from February to May of 2012; and

d) a target sheet of the accused and also of his girlfriend which included a picture of the subject, name, date of birth, associated vehicles, residence and name of associates including friends and family members. [ 11 ] The Crime Stopper’s tip included the following details – the house located at ** Whitefield Place is a drug house; a younger black male and a younger Caucasian male live at the residence, the residence has blinds that are always closed and there is moisture on the windows.

The owners have pit bulls. [ 12 ] The verbal tip from the confidential source stated that a male by the name “T” deals drugs. [ 13 ] During the surveillance conducted on the accused between the dates of February - May 2012 by the homicide team, the homicide team observed the accused on several occasions to conduct what appeared to be drug meets with various people throughout Calgary. [ 14 ] Detective Christie spoke with the person from the CPS regarding “T” being a drug dealer. The homicide team referred to him as the “source handler.” He confirmed to Detective Christie that he thought the source was reliable.

A source handler determines the credibility of the information being provided which includes determining how many times the informant has provided information in the past, what the motivation is for providing the information and the detail of the information. The source handler told Detective Christie he had not had previous dealings with the source. He said, however, he said he did not doubt the credibility of the source.

This source handler was unable to confirm the reliability of the recent information pertaining to the person by the name of “T” as a drug trafficker. [ 15 ] Detective Christie explained that a Crime Stoppers tip is a tip given by an anonymous tipster who contacts a phone hotline operated by the CPS.

[ 16 ] Detective Christie also received a surveillance

summary provided by the surveillance members of the homicide team. It summarized each day of surveillance on the accused. There were several occurrences where the accused was followed to various locations throughout the City of Calgary where he was observed to conduct short meetings with other individuals and with both parties leaving in separate directions after the short meeting. Detective Christie testified that such types of meetings could be consistent with a drug transaction. [ 17 ] Detective Christie conducted a PIMS check on Mr. Yousuf and was able to find out where he currently resided.

Detective Christie was also able to confirm that the accused had previously resided at ** Whitefield Place from a check-up slip. Detective Christie explained that a police officer submits a “check-up slip” for informational purpose when he comes into contact with somebody for various reasons and no criminal charges are laid. Notably, in one of those check-up slips there was an alias for Mr.

Yousuf under the name “T.” At trial, Detective Christie acknowledged that the PIMS check with information about Whitefield Place and “T” dated back to 2010. [ 18 ] The drug team then decided to start their own investigation into Mr. Yousuf. On August 29, 2012, they set up surveillance for Mr. Yousuf at his last known address. The operation was called “Operation Kaput” and this was the first involvement of the drug unit in the operation. October 4, 2012 [ 19 ] On October 4, 2012, the accused was under surveillance by another homicide team.

The homicide team notified Detective Christie of the drug team of the accused’s whereabouts. Detective Christie decided to deploy Constable Patram as an undercover operator to make contact with the accused. Constable Patram has been with the CPS since 2012. He first became involved with the Operation Kaput on October 4, 2012. [ 20 ] The objective of the first encounter was to have the undercover officer make contact with Mr. Yousuf under the guise of selling cheap electronics. He was to either sell or trade some property for drugs.

Constable Patram was directed to approach the accused in order to obtain his phone number and first name. [ 21 ] At approximately 1830 hours, the accused had parked in the parking lot of Superstore at Country Hills Blvd. N.W., Calgary. Constable Patram parked his vehicle directly in front of the accused’s vehicle. Constable Patram exited his vehicle and approached the driver’s side of the accused’s vehicle. The accused partially rolled down his window. Constable Patram engaged the accused in a conversation and asked whether he was interested in buying the iPod.

The accused replied that he was not interested but that his uncle was currently in Superstore and would buy everything he had. Constable Patram told him he had more stuff in his trunk and to come over and have a look. The accused said he had to talk to his girlfriend first. Constable Patram walked around to the back of his vehicle and waited. About a minute later the accused exited his vehicle and came to Constable Patram’s trunk to have a look. Constable Patram then showed the accused items that he was selling. Constable Patram introduced himself as Moe and the accused introduced himself as Tyson.

The accused asked how much the items were. Constable Patram told him he couldn’t purchase any of the property because it was already spoken for by somebody else who was going to trade him the property for “hard” which is the street name for crack. [ 22 ] Constable Patram told the accused that he could get the accused whatever he needed. Constable Patram said the goods ranged from $100.00 to “whatever.” He also told the accused that he would do a trade for “hard.” Constable Patram testified that he asked the accused if he was able to get “hard” and the accused nodded.

After he nodded his head yes, Constable Patram asked for the accused’s phone number.

They exchanged cell phone numbers. [ 23 ] Constable Patram testified that throughout the encounter he never used the word “cocaine.” He also agreed during cross- examination that the accused did not confirm he would get “hard” for him and the accused did not tell him he sold “hard” or provided it to other people. [ 24 ] Detective Christie testified that based on what Constable Patram told him about this overall interaction and the fact that the accused was interested in purchasing property from Constable Patram, exchanging phone numbers and the fact that the accused did not “shy away from paying in - - using drugs as currency” supported his suspicion that the accused was drug trafficking.

October 4 – November 7, 2012 [ 25 ] Between October 4 and November 7, 2012, Detective Christie directed Constable Patram to try and make contact with the accused. [ 26 ] On October 18, 2012, Constable Patram texted the accused to arrange a meeting to purchase drugs. The accused stated that he was still out of town until the next day. Constable Patram texted him again on October 19, 2012. He asked if the accused was back yet. The accused said he was in Edmonton but would probably be back the next day. [ 27 ] Constable Patram sent another text message on October 23, 2012.

Constable Patram asked if the accused was around. The accused asked what was up. Constable Patram told him he did not want to talk business on the phone but was “looking.” The accused asked him what he had and Constable Patram said he had a PlayStation 3. The accused texted back saying he had too many of those, so Constable Patram said he had a little “paper” (meaning money) and was looking for a “ball” (meaning an eighth of an ounce of cocaine).

He received no response from the accused. [ 28 ] On October 30 and November 1, 2012, Constable Patram tried to contact the accused but received no response. [ 29 ] On November 7, 2012, Constable Patram received a text message from the accused that said “hey, I’m back around now.” The conversation continued on as follows:

Cst. Patram: Cool man, you gonna be around in a bit? The male: Ya Cst. Patram: Cool, you good to hook me up . . . looking for a ball. The male: Did you text me earlier? Cst. Patram: Yeah man. Seeing if you could hook me up with a ball? The male: Don’t do those. Unless you want to pay 250 Cst. Patram: Shit man. Is that the best you can do? The male: Yeah, bro. It’s expensive right now. Cst. Patram: When can you meet? The male: Can you get gold? Cst. Patram: It will take some time, but I got paper paper right now. The male: I got a G and a half left. ... Cst. Patram: How much? The male: Need buck fifty for it. Cst.

Patram: Cool, where can I meet ya? The male: Where I saw you last. Cst. Patram: I’ll be there in 20. [ 30 ] Constable Patram drove to the Superstore and texted the same number to say he had arrived. He received a message asking where he was parked and what was he driving. Constable Patram responded that he was parked at the liquor store and was in a black Jimmy. He observed a black four-door car parked beside him. He observed the accused and his girlfriend inside the car. Constable Patram exited his vehicle and got inside the rear seat of the vehicle.

When they met at the Superstore Parking lot, Constable Patram asked the accused if he was steadily selling drugs? The accused told him that he was recently in Vancouver but was back in town now and “good to go.” Constable Patram testified that he was unsure if these were the exact words the accused had used. [ 31 ] The accused also stated that he was mobile and could meet Constable Patram wherever he wanted. Constable Patram observed the accused reach his hand into the back seat area of the vehicle.

Constable Patram stuck out his hand and the accused placed a small baggy containing crack cocaine in his hand. [ 32 ] After Constable Patram gave the accused $150.00, he asked if it was good to call him if he needed more drugs. The accused said “yes.” Constable Patram subsequently determined that the drugs weighed 1.1 grams. November 8 to December 4, 2012 [ 33 ] From November 8, 2012, to December 3, 2012, Constable Patram and the accused had continuing text communications. Constable Patram sent the accused a text message on November 8, 2012. The night before the accused had indicated he wanted a receiver.

He asked the accused what type of receiver he would like. The response he received stated that the accused would like “a Harmon Kardon, just high-end ones.” He sent a response saying “cool man. I’ll let you know.” The accused responded “thanks and then, Gold ??” The accused then sent another saying “or silver”. Constable Patram sent one back saying “working on that for ya.” Constable Patram received a message back saying, “Is it going to happen, you think?” Constable Patram replied back: “Receiver shouldn’t be a problem. Just need a few days.

Gold a bit tougher but I’m trying.” [ 34 ] The accused then asked him if he dealt in clothes. Constable Patram messaged back that he “don’t usually do clothes. What you looking for?” A message back was received saying “Diesel jeans, sweaters, shirts, jackets, G-Star, same.” He received a second message from the accused saying: “I got way better stuff now.” Constable Patram responded “Cool man.

I’ll let you know when I get the stuff.” [ 35 ] On November 11, 2012, he received a text message from the same number asking “Any gold yet or the other shit?” Constable Patram did not reply to that message. [ 36 ] Constable Patram responded on November 12, 2012, saying that he was sorry he missed him, the receiver is coming this week sometime.

He also said “I will know tomorrow about the other shit.” He received a response saying “Okay, sounds good.” [ 37 ] On November 13, 2012, he received a message saying “Hey, what’s good brother?” Constable Patram did not respond right away and he received a second text with two question marks. Constable Patram texted back saying, “I got a line on a Harman 5.1 AVR 700. Let you know when I got it. Trade you straight for a ball of the better shit.” The accused sent two texts back asking about the

specifics of the receiver. [ 38 ] On November 16, 2012, Constable Patram sent a text to the same number saying “Yo, going to get your receiver now. You good to meet later?” The response was “yes.” The Constable responded, “Sweet, I’ll let you know when I got it.” You good for a straight up trade for a ball?” The accused replied “Got to look at it. Go from there?” He then asked if it was in the box and another message saying, “Gold?” Constable Patram responded “Yeah, man. Still in the box. Brand new, $600 in store.

I made sure I got a good one for you.” [ 39 ] That same day, they exchanged further texts about the receiver. Constable Patram then sent a text reading, “Same place in 30?” He received a text back saying, “Can’t meet for an hour or two. Got a birthday din to go to.” The third message said “Can I meet you after that?” Constable Patram replied “Ah, fuck. I’m as busy as shit. Any way, you can bust away for a second?” [ 40 ] Constable Patram testified that he subsequently had a meeting that day but it was not with the accused. [ 41 ] On November 22, 2012, the objective of the day was to meet to purchase drugs.

The text message

summary that day is as follows: Cst. Patram: Yo, man. What’s up? You good to hook me up today? Cst. Patram: Yo, man. You there? The male: Yeah Cst. Patram: You good to meet? About an hour later, Cst. Patram sent another saying “ Hey, I’m good to meet now if you can” The male: Not for a bit Cst Patram: Cool, man. Doing some work in a bit. How long, you think? The accused: Around three. [ 42 ] Constable Patram did not receive a response for a couple of hours and then he received a text message saying, “You still need?”, to which Constable Patram responded, “Ah, fuck. Heading out of town now.

Catch up with you next week.” The accused responded saying “sorry bout that. I was waiting for proper stuff. You know what I mean?” Constable Patram said, “Yeah, np bro. Save some of that good shit for me.” He got a message back saying “I will, my man.” [ 43 ] On November 27, 2012, the objective of the day was to set up a meeting to purchase drugs from the accused. They exchanged text messages on this day but did not meet. [ 44 ] On November 28, 2012, Constable Patram sent a text message saying that his buddy just got some high-end girls’ clothes. He received a text back asking what he had.

That day, the extent of the conversation between them was about clothes. [ 45 ] On November 29, 2012, Constable Patram sent a message “Yo, man. So I was able to get a pair of jeans and two nice shirts for your girl. Three – 150 in the store.” He received a message asking what kind. Constable Patram responded that he had Citizen and Wilfred, “high end shit.” Constable Patram sent a second message saying,“You good with 2 grams for this shit.” He received a message saying, “No, I’m good on those.

Not high-end.” Constable Patram responded “cool or K. how much for two.” Constable Patram sent a message asking, “You good to hook me up tonite?” He also sent a picture of the clothes he had and said, “How about 100 for clothes and I make the rest up in paper for the two?” He received a response saying “I’m okay thanks.” Constable Patram sent a text saying “Cool, can you hook me up for the two, straight up cash?” He did not receive a response. [ 46 ] On December 3, 2012, the objective was to attempt to set up a meeting with the accused to purchase drugs. Constable Patram sent a text message saying “Yo, what’s up?

Coming into town tonite. You good to meet tomorrow?” He received a text back saying “yeah.” Constable Patram replied: “Cool, man. You deal with that chick?” That was the extent of the conversation. [ 47 ] On December 4, 2012, the objective was to make a meet with the accused to purchase drugs. Constable Patram sent a text reading, “Yo, man.

You still good to meet today?” He did not receive a response back immediately and sent another “You there, man?” Constable Patram received a message saying “yeah.” Constable Patram again sent a text to the accused and asked if he had his “2 grams.” The accused replied that he was “not really in a position to cover for that.” Constable Patram responded, “That or my $200 or at least that bitch’s name?” Constable Patram received a text back with a female’s name. Constable Patram then asked the accused why she was representing him. The accused replied that “She’s not representing me at all.

I asked a friend of a friend to do me a favour. She will get hers.” Constable Patram replied “Cool, man. Fuck, I was pissed, dude.” The accused replied “As was I. I will try and do what I can, like throw out extra until we’re caught up. My lawyers fucking soaked me dry, man.” Constable Patram replied “Fuck, I hear that, man. Can you do anything for me now?

I need some ‘shit’ now.” The accused responded saying “come to the Sunridge Mall.” The accused asked him what he needed and Constable Patram replied that he needed a gram. [ 48 ] Constable Patram received a text saying, “What you got for paper so I can try and work something out for you?” He sent a message back saying “How much do you have: What kind of deal can you give me, seeing as I’m out two already?” The accused asked what he had for paper. Constable Patram responded that he “had 100.

What kind of weight can you do?” Constable Patram received a message back saying “One and a half.” The Constable replied “Cool. Be there in ten.” [ 49 ] Constable Patram met the accused in the afternoon at the Sunridge Mall, in the parking lot of Old Navy. Constable Patram texted the accused and said “K, I’m parked in front of Old Navy.” They exchanged several texts at this point. Five minutes later

Constable Patram observed a vehicle parked in front of his vehicle. The accused was inside. When the Constable exited his car, hewalked up to the accused’s car and knocked on the window. The accused motioned for him to get in. Constable Patram motioned for himto roll down the window. They had a discussion about the female that met with him on a previous occasions and the accused advised himthat he would not be meeting with anyone else but him. Constable Patram asked to see the drugs before he gave him the money. Helooked at the drugs, it was crack cocaine. He then gave the accused the money.

The accused took the $100.00. [50] On December 12, 2012, he was directed to contact the accused again via text in an attempt to purchase drugs. He textedsaying “Yo, man. It’s Moe. This is my new number. Yo, what’s up? Need to meet tonite.” He received a message back saying “what doyou need homie?” Constable Patram replied asking if he could hook him up. He said he needed 1.5 for $100.00. He received a messageback saying that he was just waiting to reload, so give him a bit.

They exchanged various text messages and eventually the accused agreed to meet at the 7-11 on 36th Street N.E. by 39th Ave. [51] Just after 11:00 p.m. Constable Patram observed the accused and another male walk from the west side to the east side of the7-11. He introduced Constable Patram to his friend, Tony. He told Constable Patram that his friend Tony had just gotten out of jail andwas trying to get on his feet. The accused told Constable Patram that he was unable to get him anymore cocaine that he was to contactTony and Tony would get it for him.

The accused then sold Constable Patram 2.3 g of cocaine for $200.00. Issues [52] The two issues in this case are as follows: 1) Pursuant to s. 24(1) of the Charter, the accused applies for an exclusion of all hearsay comments and opinions attributed to the“homicide officer” by Detective Brett Christie in his testimony.

In the alternative, the accused applies for a stay of proceedings bothunder s. 7 of the Charter and abuse of process. 2) Did the CPS provide the accused with an opportunity to commit the offence of trafficking without acting on a reasonable suspicionthat he was already engaged in criminal activity pursuant to a bona fide inquiry?

Exclusion of Hearsay Comments [53] On September 29, 2015, counsel for the Defence made an application to exclude all hearsay comments and opinions attributedto the “homicide offices” or in the alternative, for a stay of proceedings pursuant to an abuse of process. [54] Defence counsel raised the issue that the Crown had failed to provide disclosure of Detective Malsam-Dudar’s notes and files.The Defence submitted that if the Crown relied on this evidence as part of the reasonable suspicion evidence then the defence should beentitled to the files and notes of Detective Malsam-Dudar upon which she made her assessment. [55] Defence counsel submitted that they made several requests for disclosure of any prior investigations that were conducted thatled the accused being identified as a target for Operation Kaput. [56] In oral argument before me, Defence counsel submitted that they received the information the week before the trial date, thiswas too late to adequately prepare for trial.

Furthermore, I was advised by Crown counsel that Defence counsel had actually received thedisclosure in relation to the homicide file as he is acting for the same accused in that matter.

Counsel for the Defence did not respond tothis assertion. [57] Defence submitted that Detective Christie relied on the opinion of Detective Malsam –Dudar in forming his opinion.Furthermore, Detective Christie relied on an unknown officer regarding the reliability of a confidential source that provided informationin relation to a person that went by the letter “T.” [58] Defence counsel relied on various cases included R v Chaplin, (SCC), [1995] 1 SCR 727 where the Courtstated at para 21: This Court has clearly established that the Crown is under a general duty to disclose all information, whether inculpatory or exculpatory,except evidence that is beyond the control of the prosecution, clearly irrelevant, or privileged: R. v.

Stinchcombe, supra, at p. 339; R. v.Egger, (SCC), [1993] 2 S.C.R. 451. The Crown obligation to disclose all relevant and non-privileged evidence, whetherfavourable or unfavourable, to the accused requires that the Crown exercise the utmost good faith in determining which information mustbe disclosed and in providing ongoing disclosure. Failure to comply with this initial and continuing obligation to disclose relevant andnon-privileged evidence may result in a stay of proceedings or other redress against the Crown, and may constitute a serious breach ofethical standards.

With respect to the latter, of necessity, great reliance must be placed on the integrity of the police and prosecution barto act in the utmost good faith. It is for this reason that departures from this onerous obligation are treated as very serious breaches ofprofessional ethics. [59] The Crown responded that the file and notes of the homicide unit and in particular, Detective Malsam- Dudar were notrelevant to this inquiry and the entrapment hearing.

She submitted, relying on R v Debot, (SCC), [1989] 2 SCR 1140 thatif the police can rely on hearsay to justify a warrant of search and arrest, it makes sense that they can rely on hearsay to justify areasonable suspicion.

The Crown submits that the focus in this case is what happened subsequent to the drug unit receiving theinformation from the homicide unit. [60] I stated in my decision on September 30, 2015, that I needed to hear the evidence that the Crown intended to call in theentrapment hearing to make a determination of whether Detective Christie acted on his own independent assessment as opposed tocommencing a criminal investigation based on the opinion expressed to him by Detective Malsam-Dudar.

[61] I have now heard the evidence on this matter, and I find that Detective Christie formed his own opinion based on theinvestigation conducted by the drug unit. The issue in this case is not the formation of reasonable suspicion of the homicide detective: itis about what subsequent steps were taken by the undercover operator. The file of the homicide detective is not relevant to this inquiry.

Entrapment The Accused’s Position [62] With respect to the issue of entrapment, Defence counsel argues that the CPS officers did not have a reasonable suspicion tobelieve that the accused was already engaged in drug trafficking. Counsel for the accused submitted that the investigating officers reliedon information that was not current when Constable Patram approached the accused in October 2012. The surveillance conducted on theaccused had taken place over four months earlier.

Due to the dated nature of the information, the Defence submits that the investigatingofficers lacked the reasonable grounds to suspect that the accused was involved in drug trafficking. The Defence submits that the officerslack of reasonable suspicion is further indicated by the fact that the confidential tip provided to the officers had not been corroborated atthe time. [63] Furthermore, the Defence argues that when the Constable approached the accused he was in a parking lot. He was notengaged in any suspicious behaviour.

The initial conversation may have established that he was interested in stolen goods but nothingabout his willingness to trade drugs for it. The Defence argues that the only thing that has been established at this meeting is that theaccused may know where to find drugs. In addition, viewing the totality of the circumstances it took more than a month between theinitial encounter between Constable Patram and the accused and the moment when the accused actually suggests a willingness intolooking into obtaining the drugs to sell to Constable Patram.

The Crown’s Position [64] The Crown submits that the police did not engage in random virtue testing. The Crown submits that the police acquiredreasonable suspicion that the accused was engaged in drug trafficking. The distinguishing features of this case are as follows:

a) The accused was not a random person. He had been identified by the homicide unit as an individual believed to be involved in drugtrafficking;

b) The importance of what transpired on October 4, 2012, including the interaction between Constable Patram and the accused, theconversation between them, the words used, and the demeanor of the accused;

c) The accused provided his cell number to Constable Patram directly; unlike the situation in Swan, where the police placed a numberof calls from a list of suspected numbers;

d) The importance of what took place between October 4, 2012, to November 12; the continuing communication between ConstablePatram and the accused;

e) The accused took the initiative to text message Constable Patram on November 7, 2012, and they arranged a meet where theaccused sold 1.1 g of cocaine to Constable Patram for $150;

f) The importance of the text communication between Constable Patram and the accused on November 7, 2012 to December 3, 2010until the second drug transaction took place on December 4, 2012. [65] The Crown acknowledged that the information provided by Detective Malsam-Dudar in and of itself did not constitutereasonable suspicion but Detective Christie of the drug unit initiated a drug investigation which lasted from August 29, 2012, toDecember 13, 2012 to determine if there was reason to suspect that the accused was a drug dealer. [66] In particular the Crown submitted that on October 4, 2012, after the meeting between the accused and Constable Patram, thedrug unit had reasonable suspicion that the accused was a drug dealer.

In the alternative, the reasonable suspicion was confirmed onNovember 7, 2012. [67] According to the Crown, when Constable Patram asked if the accused would do a trade of “hard” for electronic goods thatConstable Patram had really asked the accused if he was dealing drugs, similar to what took place in Imoro. Constable Patram indicatedthat the accused nodded his head, indicating yes. The Crown submits that the conversations were investigative steps which led to areasonable suspicion when the accused nodded yes in response to Constable Patram’s question about selling properties for “hard”.

Entrapment The Law [68] The accused has made an application for a stay of proceedings. The burden of proof is on the accused to show on a balance orprobabilities that the CPS’ conduct amounted to an abuse of process in the form of entrapment: R v Gladue, 2011 ABQB 194, aff’d 2012ABCA 143 at para 22. Entrapment is raised after a finding of guilt has been made but before a conviction is entered. The question ofinnocence is not in issue. It is the conduct of the state that is in issue. [69] R v Mack, (SCC), [1988] 2 SCR 903 set out the two principle branches of the test:

. . . there is entrapment when,

a) the authorities provide a person with an opportunity to commit an offence without engaging on a reasonable suspicion that this person is already 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 opportunity and induce the commission of an offence. [ 70 ] Reasonable suspicion has been held to be “fact-based, flexible, and grounded in common sense and practical everyday experience”: R v Chehil , 2013 SCC 49 at para 152 . [ 71 ] Justice Gill provides a thorough discussion of the law in Gladue. In Gladue, Constable Crisp came into information concerning drug trafficking.

He passed the information along to Sergeant Edwards who received the information and then directed an officer to make a drug buy as an undercover officer. No steps were taken to verify the tip by the officer who received it or by the sergeant who directed a subsequent operation as a result of the tip. Constable Smith placed the call and asked the person answering the phone if he was “rolling.” Constable Smith was asked what he was looking for.

Ultimately, the applicant sold the constable approximately two grams of crack cocaine. [ 72 ] In Gladue the court found that an “unverified tip, received from a first time informant with a criminal record, was not enough to raise reasonable suspicion.” Justice Gill stated at para 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 criminal activity, or that the physical location with which the individual is associated is a place where criminal activity is occurring.

The scope of reasonable suspicion is therefore central to this case. [ 73 ] Key to this issue is whether the police had reasonable suspicion. Reasonable suspicion is a lower standard than “reasonable and probable grounds” but a higher standard than mere suspicion: Gladue at para 30. [ 74 ] The Crown relied on R v Imoro, 2010 ONCA 122 , aff’d 2010 SCC 50 . In Imoro , the police received an anonymous tip that a man was selling drugs in an apartment building in Toronto. The police decided to investigate. An undercover officer went to the apartment building and rode the elevator to the twelfth floor.

When the elevator doors opened, a man, who later turned out to be Mr. Imoro approached the officer and said “come with me”. The officer responded “you can hook me up?” Mr. Imoro answered yes. Mr. Imoro then led the officer inside his apartment and sold some marijuana to another man. The officer asked for “hard” meaning crack cocaine. Mr. Imoro responded that he only had “soft” meaning powder cocaine. The officer asked for $40.00 of soft. [ 75 ] The officer returned to Mr. Imoro’s apartment the next day and purchased another $40 worth of powder cocaine. The police then obtained a search warrant for Mr.

Imoro’s apartment. They executed the warrant and seized cocaine and marijuana and the police money. [ 76 ] The Court of Appeal overturned the trial judge’s decision. Although the Court of Appeal accepted the trial judge’s finding that when the police officer initially asked Mr. Imoro if he could hook him up, he did not have reasonable suspicion that Mr. Imoro was engaged in drug trafficking. However, the Court of Appeal could not accept the trial judge’s companion finding that the officer’s question provided Mr. Imoro with an opportunity to sell drugs. [ 77 ] Specifically, Mr.

Justice Laskin, speaking for the court, stated at paras 15 and 16: However, I cannot accept the trial judge's companion finding that the officer's question provided Mr. Imoro with an opportunity to sell drugs. That view of the evidence mischaracterizes what occurred. This mischaracterization stems from a failure to properly distinguish between legitimately investigating a tip and giving an opportunity to commit a crime: see R. v. Townsend, [1997] O.J. No. 6516 (Gen. Div.) . By the question "Can you hook me up?" all the officer really asked Mr. Imoro was whether he was a drug dealer.

The question was simply a step in the police's investigation of the anonymous tip. It did not amount to giving Mr. Imoro an opportunity to traffic in drugs. That opportunity was given later when the officer and his fellow passenger in the elevator were inside Mr. Imoro's apartment. By then, having observed a drug transaction between Mr. Imoro and the other man, the officer certainly had reasonable suspicion - indeed virtually certain belief - that Mr.

Imoro was engaged in drug trafficking. [ 78 ] This case was affirmed by the Supreme Court of Canada, 2010 SCC 50 . [ 79 ] In R v Ralph, 2014 ONCA 3 , application for leave to appeal dismissed [2014] SCCA No 262, the police received a tip that a person with a particular phone number was selling drugs. The undercover officer called the number and 41 minutes later received a call back. As a result of the conversation the undercover officer met with the perpetrator and purchased a quantity of cocaine. In all, the officer met with the appellant on seven occasions.

The appellant submitted that the officer did not have a reasonable suspicion that the appellant was involved in drug trafficking when he first made the call. The court determined that the officer’s statement in this case “I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up…I need product” is similar to the “Can you hook me up” question in Imoro.

In other words it was a legitimate investigative step. [ 80 ] In R v Ahmad, 2015 ONSC 652 , the applicant challenged the police conduct on the basis that the police provided him with an opportunity to commit a crime without acting on reasonable suspicion or a bona fide inquiry. The court noted that an initial call on information from an unknown tipster has been held to be a legitimate first investigative step where a bona fide investigation confirms the information. The Court found that when the applicant asked “what do you need?” the words confirmed his suspicions that he was speaking to a drug dealer.

The Court also found it critical that the applicant called the officer back as he said he would. The steps in the conversation that preceded the offer were legitimate investigative techniques that lead to a reasonable suspicion, not an opportunity for

the applicant to commit a crime he would not have otherwise. [ 81 ] In R v Olazo , 2012 BCCA 59 , the court noted that a tip from an informant of unknown reliability will create a reasonable suspicion when some “objective” or extrinsic” piece of information in the tip is confirmed. Confirmation of the tip must precede the offer. The court noted that reasonable suspicion is an objective standard.

For the purposes of entrapment, the pertinent question is whether objectively speaking the police had reasonable suspicion that the suspect was engaged in the drug trade when they presented an opportunity to traffic. [ 82 ] Defence counsel relied on R v Swan, 2009 BCCA 142 , where the accused’s cell number was given to an undercover officer as a dial-a-dope number. The officer contacted the accused and asked him whether he was “working” a phrase used in the drug trade selling drugs.

The court of appeal overturned the trial judge’s decision that it was not entrapment finding that trial judge had erroneously concluded that investigating officer had reasonable suspicion on the basis of the accused’s conduct subsequent to the officer’s question. In my view, this case is distinguishable on the facts.

The court was critical that the police were content to proceed with the investigation based on a bare minimum of information regarding the telephone numbers compiled and had no interest in distinguishing between anonymous tips written on a matchbox or napkin and more reliable tips providing further information about a particular suspect or telephone number. [ 83 ] In R v Coutre , 2013 ABQB 258 , Moen J. issued a stay of proceedings because the police had no reasonable suspicion that the accused was engaged in criminal activity.

In Coutre , Sergeant Eliuk was provided with a telephone number and the name of the person using that number for the purposes of selling crack cocaine. The informant was unknown to Sergeant Eliuk. The informant said he had purchased drugs from the number but did not say when. Sergeant Eliuk determined that the informant had a criminal record but no crimes of dishonesty. He gave the information to Sergeant Edwards who was in charge of the DUST unit. Sergeant Edwards did not ask Sergeant Eliuk anything about the information to protect the source’s identity and failed to follow up on the source of the information.

Sergeant Edwards gave the number to Constable Smith and directed that he attempted to arrange a cocaine purchase. He phoned the number and asked “are you rolling?” The unknown male at the other end of the telephone replied that he was and asked what Constable Smith wanted. A cocaine buy was arranged. The use of the words “rolling” was not enough to elevate the circumstances beyond mere suspicion. [ 84 ] In R v Williams, 2014 ONSC 2370 , the police received an anonymous tip that the accused was dealing drugs. The police did not investigate the reliability of the information provided by the informant.

The officer who ultimately received the information made no inquiries about the reliability of the source. There was no information whatsoever about the source. The police officer called the accused and almost immediately stated “I need 80”. The accused sold crack cocaine to the officer that night and again 11 days later. The Court concluded that the words “I need 80” uttered almost immediately out of the gate provided an opportunity for Mr. Williams to commit an offence, which he did. In this case, entrapment crystalized during the first conversation.

Application to the Facts [ 85 ] To reiterate, the key issue in this case is reasonable suspicion. The focus is on ensuring that the police have an objective and reasonable basis for their actions. The police cannot provide an opportunity to persons to commit an offence without reasonable suspicion. It is also important to reiterate that the reasonable suspicion standard is a lower standard than reasonable or probable grounds but a higher standard than mere suspicion. [ 86 ] It is important to note that entrapment law distinguishes legitimate investigative steps from providing an opportunity to commit an offence.

In Williams , the court notes that conceptually the distinction is straightforward but the case law demonstrates that its application tends to lead to “subtle variations, sometimes leading to apparent inconsistencies:” at para 20. Steps taken to investigate the reliability of a tip, falling short of providing an opportunity to commit an offence will not give rise to entrapment: Olazo at para 19 . [ 87 ] Arguably, when the police make a call pretending to be a buyer that could in and of itself be said to be part of providing an opportunity to commit an offence.

A great deal turns on the specific facts of each case and in particular the specific words exchanged between an undercover operator and the target of the investigation. The court in Olazo referred to the case of Imoro and noted that the Court of Appeal, in Imoro, took a narrower view and classified the words “Can you hook me up?” as part of the investigation. Defence counsel attempts to distinguish this case on the basis that the suspicion was only confirmed in Imoro when the police officers saw the accused selling drugs to another man.

However, importantly the court still found that the initial question was part of the investigative steps. [ 88 ] In Ralph , the Ontario Court of Appeal, likened the words “I need product” to “Can you hook me up?” in Imoro and found that it was a legitimate investigative step. When the appellant responded, the response together with the anonymous tip was sufficient to provide the officer with reasonable suspicion. [ 89 ] Applying Imoro, Olazo and Ralph to this case I find that Constable Patram’s initial questions designed to set up a deal could be seen as investigative steps rather than opportunity.

By engaging in preliminary conversation regarding a drug transaction, in my view the police can raise a reasonable level of suspicion without risking entrapment. For the purposes of entrapment the pertinent question is whether objectively speaking the police had a reasonable suspicion that the suspect was engaged in the drug trade. [ 90 ] In this case, the CPS received information from the homicide unit including a Crime Stoppers tip, confidential source information, surveillance

summary from February to May 2012 and a target sheet. Although it is acknowledged that this information did not create reasonable suspicion it is still part of the totality of the circumstances that I must review. I find that the drug investigation on October 4, 2012 raised the level of suspicion to reasonable suspicion. [ 91 ] Starting with the first encounter on October 4, 2012, the Constable engaged the accused in conversation about selling stolen property. At one point Constable Patram asked the accused if he could get some “hard” meaning cocaine. The accused nodded his head, yes.

I accept the Constable’s evidence on this point. The accused appeared to understand what the word “hard” meant. In other words, he responded in a manner that showed he understood. Constable Patram was inquiring whether or not the accused was prepared to engage in

a drug transaction. Furthermore, the accused identified himself as Tyson which confirmed the information from the confidential source that “T” deals drugs. This was also confirmed in a check up slip that “T” was an alias for the accused. The accused also gave the undercover police officer his phone number, supporting Constable Patram’s suspicions that he was open to selling drugs. [ 92 ] There were continued text messages exchanged between the two parties, albeit on several occasions the Constable texted the accused and did not receive a reply.

Counsel for the Defence points to October 18, 2012 as the moment when the opportunity arises as Constable Patram texts the accused and says he is “looking for a ball”. I would classify this question as part of the investigative steps similar to what was used in Imoro. The question was simply a step in the police’s investigation. [ 93 ] If I am wrong in my analysis of the events on October 4, 2012, I find that the drug unit continued to take legitimate investigative steps to confirm reasonable suspicion. The accused initiated the communication on November 7, 2012.

Constable Patram said during this text message exchange he texted “cool, are you good to hook me up? Looking for a ball”. The accused’s response that he “Don’t do that. Unless you want to pay 250” confirmed that he was dealing drugs. At this point the accused clearly knew what a “ball” was. His response that it was expensive reinforced Constable Patram’s understanding that accused was involved in drug trafficking.

At this point, Constable Patram had acquired a reasonable suspicion that this person was engaged in the drug trade and could then proceed to offer him the opportunity to commit the offence. [ 94 ] This case can be distinguished from the cases where the person is unknown. This was a specific individual that had been identified by the homicide unit. This case is distinguishable from Swan where the police basically placed a phone call from a list of numbers they suspected to be used in drug trafficking.

The police in that case received anonymous tips written on a matchbox or napkins and no attempt was made to distinguish these types of tips from more reliable tips. [ 95 ] In

summary, the key question is whether the police had a reasonable suspicion that the suspect was engaged in drug trafficking when they presented an opportunity to traffic. The Court must consider the totality of the circumstances when assessing reasonableness on an objective basis. A reasonable suspicion was acquired on October 4, 2012. However, if CPS did not acquire reasonable suspicion on this date, it was confirmed by November 7, 2012. [ 96 ] Entrapment has not been established by the accused in this case.

Conclusion [ 97 ] I find that on the basis of the evidence before me the undercover police officer had a reasonable suspicion that the accused was engaged in drug trafficking before he made a purchase of cocaine from him.

He did not rely on the hearsay evidence of the homicide detective to base the arrest of the accused on the drug charges and accordingly the Defence’s application for a stay of proceedings is dismissed. [ 98 ] Accordingly the accused has not met the onus of establishing entrapment on a balance of probabilities and his application for a stay of proceedings is denied. [ 99 ] Furthermore, the accused’s application for a stay of proceeding or exclusion of all hearsay comments and opinions attributed to the homicide officers is denied. [ 100 ] The accused is convicted on the three counts that he unlawfully trafficked in cocaine contrary to s 5(1) of the Controlled Drugs and Substances Act and three counts of the accused having in his possession proceeds of crime contrary to s 354 of the Criminal Code of Canada , both contained in the Indictment.

Heard on the 28 th , 29 th and 30 th days of September, and October 21, 2015. Dated at the City of Calgary, Alberta this 18 th day of November, 2015. S.L. Hunt McDonald J.C.Q.B.A.

Appearances: Carmen Choi for the Crown Pawel Milczarek for the Accused _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice S.L. Hunt McDonald _______________________________________________________ The surname of the accused has been amended throughout to read “Yousuf” not “Yousef”.