R v Underwood, 2016 ABQB 90

Court of Queen ’ s Bench of Alberta Citation: R v Underwood, 2016 ABQB 90 Date: 20160212 Docket: 130837099Q1 Registry: Edmonton Between: Her Majesty the Queen In Right of Alberta - and - Cecil Underwood Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ I. Introduction [ 1 ] Cecil Underwood pled guilty to one count of trafficking in OxyContin, contrary to s 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 (CDSA ) and applies for a stay of this charge under the doctrine of entrapment.

[2] On July 18, 2013, Mr. Underwood was taking supplies to the Northlands Racetrack and planned to pick up dinner for histrainer and three grooms. [3] He stopped, as he often did, at Hollywood Pizza, located between 117 and 118 Avenue near 91 Street, a 10 minute drivefrom the track. He arrived at approximately 6:45 pm. [4] At this point Constable Candace Budynski was working as a “decoy”, posing as a prostitute. [5] Shortly after parking, Const. Budynski approached Mr. Underwood’s driver’s window. A conversation ensued and sherelayed her “menu” of services and prices. Eventually, Mr.

Underwood gave her a single OxyContin pill and he was arrested. [6] The law of entrapment was explained by the Supreme Court in R v Mack, (SCC), [1988] 2 SCR 903, 90 NR173 [“Mack”]. Police must be allowed considerable leeway and initiative in the investigation of crime, particularly in “consensual”crimes such as prostitution, drug and gambling offences. These crimes are often committed in secret and it is difficult to obtain evidenceof their commission after the fact: at pp 916-917.

But if police provide someone with the opportunity to commit a crime, they mustreasonably suspect that the person is already engaged in criminal activity or that the physical location of the person is one associatedwith ongoing criminal activity: at p 956. [7] In this case, the Crown fairly concedes that an opportunity to commit a crime was provided to Mr. Underwood when Const.Budynski asked for and later offered to purchase an OxyContin pill. [8] The scope of reasonable suspicion is central to the analysis of whether the opportunity provided to Mr.

Underwood amountsto an abuse of process. [9] Here, the Crown argues the police had a reasonable suspicion Mr. Underwood was committing crimes and therefore noentrapment occurred. The defence argues that when the police agent’s efforts to target Mr. Underwood for prostitution provedunsuccessful, she pressured him to providing her with one of his OxyContin pills and she did so without having the requisite reasonablesuspicion. [10] One of the issues to be addressed is whether Const.

Budynski was required to have a reasonable suspicion that Mr.Underwood either had drugs in his possession or was about to traffick in them, or whether it is sufficient that she had a reasonablesuspicion he was engaged in any form of criminal activity. II. The Evidence A. Mr. Underwood [11] Both Mr. Underwood and Const. Budynski gave evidence. Because they differ significantly on the scope of theirconversation, their credibility and reliability as witnesses is of paramount importance. [12] Mr. Underwood testified that shortly after parking, he saw a woman walking on 118 Ave. As described by Mr.

Underwood,“she looked like a rose in a burnt out forest”. This was Const. Budynski. She said hello and he replied that it was a beautiful day. Sheapproached his driver’s window and leaned in, asking him if he wanted company. Mr. Underwood assumed she was a prostitute. He hadnever been approached by a prostitute before. She suggested he might “want something” and outlined her services and the various prices. [13] Mr. Underwood admitted to joking with her and “kibitzing” back and forth, engaging in “basic garbage talk” as he waited forone of his business associates to arrive.

This associate was bringing him some cash to pay a bill at Northlands and they intended to getthe pizza and go to the track together. [14] At one point Mr. Underwood told Const. Budynski he thought she was a cop. She denied this and asked him if he was a cop. [15] Mr. Underwood reports Const. Budynski became increasingly aggressive, attempting to get him to commit to her services. Atone point, she leaned into his truck window and apparently spotted his prescription bottle of OxyContin sitting in his truck console.

Sheasked what he had and he replied “Oxy”. [16] She asked if she could have a pill, repeatedly saying “please” and eventually said she would buy one for $40.00. [17] By this time, he had seen the associate he was meeting walk into the pizza place. He wanted to get rid of the woman so he“stupidly” took one of the two pills he was going to take himself and gave it to her. [18] She walked away and the police arrived to arrest him. [19] Mr. Underwood denied initiating the conversation with Const.

Budynski, denied striking any kind of a deal for sexual servicesin exchange for OxyContin, denied telling her that his associate was bringing him cash for OxyContin and denies ever giving or sellinghis OxyContin to a third party prior to this occasion. He maintained it was Const. Budynski who first raised the issue of OxyContin byasking him what he had. B. The Medical Evidence [20] In emotional testimony, Mr. Underwood said he neither intended to nor was capable of engaging sexual services as he hasbeen impotent for many years. In 2003, he had a penile implant inserted, but the surgery was unsuccessful.

[21] He also suffers from a variety of medical conditions resulting in chronic pain. He has taken prescription OxyContin (nowOxycodone) since 2003. One of his medical conditions is his severely reduced ability to absorb materials such as iron, magnesium,testosterone and opiates like OxyContin. As a result, he was taking 20 OxyContin pills per day in July 2013. [22] Over the objections of the Crown, I admitted some of Mr. Underwood’s medical records from his family physician Dr.Kibria. The records include a computer

summary of his medical conditions, which referred to the failed implant surgery in 2003performed by another doctor, and his prescription history from August 2014 to January 2016. A covering letter, purportedly signed byDr. Kibria and on his letterhead, confirms that Mr. Underwood has been his patient since 2003 and since that time, has been prescribedOxyContin 40-80 mgs for management of chronic pain. [23] Mr. Underwood identified the records as being his.

Relying on Ares v Venner, (SCC), [1970] SCR 608, 14DLR (3d) 4, I admitted the records as I was satisfied of their reliability and authenticity without the need to call Dr. Kibria to have therecords proven through him. C. Constable Budynski [24] On July 18, 2013, Const. Budynski was seconded to the vice unit and working as a “decoy”, posing as a prostitute. She wasworking the area of 91 St. and 118 Ave. [25] On this occasion, the police were targeting prostitution. However, Const. Budynski’s cover manager had also given herpermission to work toward an arrest if a drug transaction presented itself.

As such, she was working as both a decoy and an undercoverofficer. [26] Contrary to Mr. Underwood, Const. Budynski testified that he initiated the discussion. When she approached his truck, he“got right down to business” and asked her if she had a place. She gave him the menu of services and they engaged in sex talk. [27] Mr. Underwood said he was waiting on a guy who was bringing him cash “for something”. This caused her to suspect that heeither had drugs on him or that he was waiting to make a drug transaction.

She asked him what he had and he replied “I’ve got Oxyies”.She denied seeing his prescription bottle of pills at this point. [28] They struck their deal: anal and oral sex for $100.00. He confirmed he had cash and told her he was meeting the guy at thepizza place. At this point, Mr. Underwood asked her if she was a cop. Const. Budynski denied she was and asked him if he was a cop.Continuing in her role playing, she said “fuck you” and started to walk away. [29] At this point, Mr. Underwood brought up the OxyContin again.

Her evidence was unclear as to the precise language he usedbut believes he said “I’ve got Oxyies”. Const. Budynski took this to mean he was offering her OxyContin so she returned to the truck andasked for one OxyContin pill. She denies pleading for a pill or repeatedly saying “please”. Mr. Underwood wanted the sex services forone pill, telling her it was 80 mgs. She felt this was an attempt to “upsell” or rip her off as the street value for one pill is $40. She did notsee any OxyContin in the vehicle. [30] They agreed to the sex for $60 and one OxyContin. He placed the pill on the windowsill of his truck.

She did not provide himwith cash and she walked away. He made no attempt to stop her. D. Analysis on Credibility and Reliability [31] We do not have the benefit of an audio recording of the conversation between Mr. Underwood and Const. Budynski. [32] Mr. Underwood has the onus of establishing, on a balance of probabilities, entrapment occurred. The parties agree that theanalysis of the assessment of credibility, set out in R v W(D), (SCC), [1991] 1 SCR 742, 3 CR (4th) 302 has noapplication. Rather, the assessment of the credibility and reliability of both Mr. Underwood and Const.

Budynski is approached as it is inany civil action. [33] I conclude that while it appeared to me that Const. Budynski made every effort to be complete and accurate in her evidence,the method and manner in which she recorded her notes brings the reliability of her evidence into question. [34] Const. Budynski began making her notes at 6:48 pm on July 18, 2013. While this is within a short time of the events, the formof the notes required the Constable to create a narrative, as it would appear in a transcript.

As our common experience in readingtranscripts of evidence indicates, this is not how conversation often unfolds. For example, people routinely talk over one another. Often,people do not speak in complete sentences. [35] The form of notes Const. Budynski prepared is marked by an element of artificiality and I find it would be very difficult,perhaps impossible, to remember particulars of what was said, by whom and in what order. [36] Further, by the date of this incident, Const. Budynski had acted as a prostitute decoy about 80 times in five years.

Althoughshe was not asked directly, one can safely assume she would not have any specific recollection of this arrest. [37] On the other hand, Mr. Underwood did not keep any notes of this incident and gave his evidence about two and a half yearsafter the fact. While the events may have been burned in his memory as defence counsel suggests, I conclude it would be equallydifficult for Mr. Underwood to remember particulars of what was said, by whom, and in what order. [38] Both Mr. Underwood and Const. Budynski appeared to be very credible witnesses. Mr.

Underwood was compelling whentestifying in chief and gave fairly detailed evidence in a spontaneous way. For her part, Const. Budynski appeared to make scrupulousefforts to be honest and complete in her evidence. She was equally compelling. Yet their evidence on key aspects of their conversation

differs dramatically. In my view, not much turns on who initiated the conversation. The key points are whether a deal for sex had beenagreed upon, whether Mr. Underwood enticed Const. Budynski back to his vehicle by referring again, to the OxyContin, and whether ornot Mr. Underwood offered an OxyContin pill as partial payment for sexual services. [39] Const. Budynski’s graphic testimony painted Mr. Underwood as a willing john who negotiated anal and oral sex for $100.00,then attempted to negotiate a better deal by offering an OxyContin pill.

In her account, the end result was that the agreed upon sexualservices were to be paid with $60.00 and one OxyContin pill. [40] Mr. Underwood’s evidence suggests he was a stupid dupe who got in over his head and foolishly gave the officer one of hisOxyContin pills to get rid of her. [41] It is tempting to prefer the evidence of a police officer over an accused. They are, after all, trained professionals. Yet theCourts have recognized the danger in doing so.

As Dickson J (as he then was) observed in R v Graat, (SCC), [1982] 2SCR 819 at 840, 144 DLR (3d) 267: ... there may be a tendency for judges and juries to let the opinion of police witnesses overwhelm the opinion evidence of otherwitnesses. Since the opinion is admitted under the “compendious statement of facts” exception, rather than under the “expert witness”exception, there is no special reason for preferring the police evidence over the “opinion” of other witnesses. As always, the trier of factmust decide in each case what weight to give what evidence.

The “opinion” of the police officer is entitled to no special regard. ... [42] Const. Budynski testified that Mr. Underwood got right down to business by asking her if she had a place. She took this as aclear indication that he wanted to pay for sexual services over a longer period of time. Mr. Underwood was never asked about thisstatement in cross-examination. In my view, this is a key point, because it strongly suggests Mr.

Underwood was engaging incommunication for the purposes of prostitution, a criminal offence, rather than simply engaging in garbage sex talk as he suggests. [43] The rule in Browne v Dunn ((1893) 6 R 67 (HL)) mandates that a party cannot argue the credibility of a witness unless thatwitness has an opportunity to respond to the evidence used to challenge their credibility.

If the rule is breached, the trier of fact is entitledto give the evidence which challenges credibility less weight. [44] Recently, our Court of Appeal in R v Clark, 2015 ABCA 160, 121 WCB (2d) 389 commented that the rule in Browne v Dunnis either engaged or it is not. In a criminal context, if the trier of fact intends to apply the rule to the detriment of the accused, the accusedmust be given an opportunity to address the issue, by possibly recalling the witness: para 13. [45] In this application, the onus of proof, on a balance of probabilities, rests with Mr. Underwood.

He has already pled guilty totrafficking in a controlled substance. [46] In R v Werkman, 2007 ABCA 130 at paras 11-12, 404 AR 378, the Court specifically rejected the argument that a trial judgehad committed an error by not recalling witnesses of his or her own motion in response to a Browne v Dunn scenario. In R v Clark, atpara 15, Côté JA characterized that step as “a very dubious procedure.” Accordingly, I did not feel compelled to raise the breach ofBrowne v Dunn with the Crown during closing argument and conclude that I am entitled to give less weight to Const.

Budynski’sevidence on this point. [47] Yet, even ignoring her evidence that Mr. Underwood “got right down to business”, the evidence of Const. Budynski served toundermine the version of events described in Mr. Underwood’s evidence. Mr. Underwood testified he had never been approached by aprostitute before and had no intention of paying for sexual services, yet he did not shut down the discussion with Const. Budynski.Rather, he willingly engaged her in “basic garbage talk”, which included the menu of services and the prices for these services. Mr.Underwood did not provide details of their discussion.

After hearing the evidence of Const. Budynski, I am left with the clear impressionthat Mr. Underwood was not as naïve as he suggests. She testified in graphic detail, about the sexual comments Mr. Underwood made. Ifhis sex talk with Const. Budynski was all in jest, it is curious as to why he would spontaneously inquire whether she was a cop. Thatinquiry certainly suggests Mr.

Underwood did not view this as some casual conversation but instead recognized he was negotiating forsex, what was at the time a criminal offense. [48] I also find his reference to meeting someone who was bringing him money to be circumspect. Mr. Underwood was unclear atwhat point in the conversation he asked Const. Budynski whether she was a cop and at what point he mentioned meeting someone whowas bringing him cash. [49] I accept that it was Const. Budynski who asked Mr. Underwood what he had.

If she had spotted the prescription bottle andasked about it as he testified, he could have simply said “it’s my medication”. Instead, he answered “Oxy”. It is difficult to believe Mr.Underwood was not aware of the interest this would spark. [50] Even if I question the reliability of the specifics of what was said, I find overall that Const. Budynski provided a more logicalnarrative and sequence of events. [51] I accept Const. Budynski’s evidence that while discussing whether the other was a cop, the apparent negotiations broke downand she walked away. It was Mr.

Underwood who brought up the OxyContin again, and she returned to the vehicle. Her evidence that hetried to upsell the pill because it was 80 mg was corroborated by Mr. Underwood’s medical records which show his prescription variedbetween 40 and 80 mg tablets. [52] I accept that when she returned to the vehicle, Mr. Underwood found Const. Budynski to become increasingly aggressive. [53] I have some difficulty with Const. Budynski’s evidence that a price of $100.00 for oral and anal sex had been agreed upon andthis was later revised to $60.00 and one OxyContin pill.

While impotency does not preclude all sexual activity, it is odd that he wouldpay for services at the higher end of the scale that included

an act he was apparently physically incapable of. The fact Const. Budynskidid not pay Mr. Underwood for the pill is a neutral factor as it is consistent with both a negotiated deal for sex of some kind, or Mr.

Underwood simply relenting and giving her a pill to get rid of her. [54] Overall, I prefer Const. Budynski’s evidence over Mr. Underwood’s evidence. [55] Accordingly, I make the following findings of fact from the evidence: - Mr. Underwood and Const. Budynski first engaged in a discussion about the services she could offer and the prices she wouldcharge; - Mr. Underwood’s bottle of prescription OxyContin was visible in his center cup holder. Const. Budynski asked him what he hadand he replied Oxy; - Mr. Underwood questioned whether Const. Budynski was a cop, she began walking away from the vehicle and Mr.

Underwoodreferred again to his OxyContin prompting her to return to the vehicle. - Const. Budynski aggressively asked for a pill, eventually telling Mr. Underwood that she had $40.00 to buy one. III. The Law of Entrapment [56] In Mack, at p 959, Justice Lamer summarized when entrapment occurs, when:

a) authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the person isalready engaged in criminal activity or pursuant to a bona fide inquiry; or

b) notwithstanding that the authorities have a reasonable suspicion or are acting in a bona fide inquiry, they go beyond providing anopportunity and induce the commission of an offence. [57] The issue of entrapment is only considered after an accused person has been found guilty, and is a separate procedure intendedto respond to police conduct that is an abuse of process and which warrants a stay of proceedings: R v Pearson, (SCC),[1998] 3 SCR 620, 233 NR 367. [58] Whether entrapment occurred requires an objective assessment of the conduct of the police and their agents against what “theaverage non-pre-disposed person would have done”.

Requiring the police to have either a reasonable suspicion or a bona fide inquirymilitates against the risk that police “test the virtue of people on a random basis”: Mack at p 956. [59] In this application, there was no bona fide inquiry based on the physical location of Mr. Underwood. The issue is whetherConst. Budynski had a reasonable suspicion Mr.

Underwood was already engaged in criminal activity when she asked him for anOxyContin pill. [60] The Crown argues that the reasonable suspicion test has been refined through the recent Supreme Court decisions in R vChehil, 2013 SCC 49, [2013] 3 SCR 220 [“Chehil”] and R v MacKenzie 2013 SCC 50, [2013] 3 SCR 250, and the Alberta Court ofAppeal decision in R v Navales, 2014 ABCA 70, 569 AR 203 [“Navales”].

These decisions involved “sniffer dog searches” deployed toinvestigate drug offences and whether the reasonable suspicion standard had been met by police. [61] In Chehil, it was argued that factors relied upon by the police to ground their reasonable suspicion must be assessedindividually and each factor must support reasonable suspicion. This approach was rejected by the Court in favour of an assessmentbased on the totality of the circumstances. At para 6, the Court outlined the reasonable suspicion standard: ...

The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed todetermine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behavior. It does notrequire the police to investigate to rule out exculpatory circumstances.

The Court of Appeal correctly concluded that the trial judge erredin assessing the factors individually rather that in their entirety ... [62] In short, the reasonable suspicion standard addresses the possibility of uncovering criminal behavior, not a probability ofdoing so: Chehil at para 32; Navales at para 18. Still, the constellation of facts, based in the evidence, must be capable of supporting alogical inference of criminal behavior.

If the link between the constellation of factors and criminal behavior cannot be established bylogical inference, the Crown must lead evidence to connect the circumstances to criminality, either through statistical evidence orthrough evidence of the officer’s training and experience. IV. Was Mr. Underwood Entrapped? A. Did Const. Budynski Have a Reasonable Suspicion Mr. Underwood wasEngaged in Drug Trafficking? [63] Here, the Crown relies on Const. Budynski’s training and experience to link the circumstances existing to the possibility Mr.Underwood was involved in criminal behavior.

She has been employed for 10 years with the Edmonton Police Service in patrol division.Since approximately 2011, she would occasionally be seconded to work for the day in the vice unit, either as a decoy, where she wouldpose as a prostitute, or as an undercover agent involved in drug transactions. Prior to July 2013, she had worked as a decoy approximately80 times. The training to work as a decoy is minimal and involves safety briefings and learning to walk and talk like a prostitute.

[ 64 ] Her training as an undercover agent involved an 11 day course that covered “dial-a-doper” operations, the street names for various drugs and drug lingo. It was not clear from the evidence how many of the approximately 12 undercover drug operations she was involved in resulted in arrests. [ 65 ] As I have preferred the evidence of Const. Budynski over that of Mr. Underwood in most respects, I conclude she had the requisite reasonable suspicion that Mr. Underwood was engaged in criminal activity. [ 66 ] According to Const. Budynski’s evidence, her suspicion that Mr.

Underwood either had prohibited drugs on him or that he was waiting on a drug transaction occurred when, after the discussion of sexual services, Mr. Underwood told her that he was waiting on a guy and he was bringing Mr. Underwood cash “for something”. Constable Budynski then asked what Mr. Underwood had and he replied that he had “Oxyies”. [ 67 ] Mr. Underwood then asked if she was a cop. After telling him she was not a cop and walking away, Mr. Underwood brought up the OxyContin again. She interpreted this to mean he was offering OxyContin to her.

She returned to the vehicle and asked for one. [ 68 ] As the Crown fairly concedes, the opportunity to commit a crime was provided by Const. Budynski to Mr. Underwood when she asked for an OxyContin pill and later offered to buy one for $40.00. [ 69 ] Mr. Underwood admits to engaging in garbage talk and “joking back and forth” with Const. Budynski about various services. This communication is sufficient in my view to ground Const. Budynski’s reasonable suspicion that he was intending to engage in an offence under the now repealed s 213(1)(

c) of the Criminal Code , RSC 1985, c C-46 that prohibited communication for the purposes of engaging in prostitution. [ 70 ] A reasonable suspicion can arise during the course of an unrelated investigation: R v Imoro , 2010 ONCA 122 , 264 OAC 362, aff’d 2010 SCC 50 , [2010] 3 SCR 62. Thus, Const. Budynski’s reasonable suspicion with regard to Mr. Underwood’s possible drug offences can arise in the course of an undercover operation aimed at prostitution.

In some cases, it is not sufficient to rely solely on a reasonable suspicion regarding a suspect’s possible crime in one area to satisfy the requirement for a reasonable suspicion in a different area of crime. To hold otherwise casts far too wide and unwieldly a net. [ 71 ] However, there are also circumstances as here, where the criminal activities of communicating for the purposes of prostitution and drug possession or trafficking are interwoven and a reasonable suspicion in one area can ground the other. [ 72 ] On the evidence I accept, I am satisfied Const. Budynski had a reasonable suspicion that Mr.

Underwood had drugs on him or was waiting on a drug transaction, prior to asking for an OxyContin pill. [ 73 ] I am mindful that there is no requirement on the part of the police to identify Mr. Underwood prior to acquiring a reasonable suspicion that he is engaged in criminal activity: R v Benedetti , 1997 ABCA 169 , 200 AR 179; R v Gladue , 2012 ABCA 143 , 524 AR 237, leave refused [2012] SCCA No 305. [ 74 ] According to Const. Budynski’s evidence, she never saw the OxyContin bottle in Mr. Underwood’s truck nor was there any evidence of any drug indicia in his truck.

The reference to his “waiting on a guy to bring him cash for something” provided Const. Budynski with a subjective intuition that Mr. Underwood might have drugs on him or was waiting on a drug transaction. This statement is arguably vague and ambiguous when assessed in isolation and the statement is capable of an

interpretation that does not suggest the possibility of criminality. [ 75 ] Const. Budynski testified that when Mr. Underwood said “I’ve got Oxy” as she was walking from the vehicle, she took this to mean that Mr. Underwood was prepared to sell drugs to her. Defence counsel argued that Mr. Underwood’s saying “I’ve got Oxy” as Const. Budynski was walking away is consistent with Mr. Underwood attempting to prove to her that he was not a police officer and that such an

interpretation does not suggest he was offering to sell her drugs. [ 76 ] While OxyContin is potentially contraband, it can be legitimately possessed. It seems to me that it is more plausible that Mr. Underwood said “I’ve got Oxy” to lure Const. Budynski into further discussions involving the possibility of drugs for sex. [ 77 ] Courts take solace when a police officer’s subjective belief is bolstered by objectively verifiable indicators. The entire contextual backdrop must be considered. [ 78 ] Const. Budynski testified that the sex trade workers on 118 Ave are particularly vulnerable and often drug addicted.

While working as a decoy, she has been approached for sex, to purchase drugs or to provide sex in exchange for drugs. While she was not qualified as an expert in the relationship between drug use, drug trafficking and prostitution, there is ample jurisprudence noting the link. Recently, in Canada v Bedford , 2013 SCC 72 , [2013] 3 SCR 1101 the Court observed, at para 86: First, while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. ...

As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population ... Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money .

Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice” ... — these are not people who can be said to be truly “choosing” a risky line of business ... [Emphasis added, citations omitted.] The Supreme Court also specifically acknowledged the expert evidence received by the trial judge in Bedford v Canada , 2010 ONSC 4264 , 327 DRL (4th) 52 which documented the relationship between street prostitution and drug addiction. [ 79 ] Thus, there is no clean and neat demarcation between communicating for the purposes of prostitution and Const.

Budynski’s reasonable suspicion that Mr. Underwood was possibly involved in criminal activity involving OxyContin. Her reasonable suspicion was grounded in their communication about sexual services and the subsequent statements suggesting he either had drugs on him or that he

was waiting on a drug deal. [80] Although I have concluded that a reasonable suspicion existed, I must still consider whether the police in this instance, wentbeyond simply providing an opportunity to traffic in drugs to inducing Mr. Underwood to doing so. [81] The goal of such an undercover operation is to affect an arrest. On the evening in question, Const. Budynski had permission totarget both prostitution and drug offences. [82] Const. Budynski did not have extensive experience in undercover drug operations. She admitted she was excited over theprospect of making a drug arrest.

She is clearly passionate about her work with the vice unit and believes in the social utility of targetingjohns who prey on vulnerable, often drug addicted women. It is through this lens that the actions of the police are to be assessed. B. Relevant Considerations and Their Weight [83] An entrapment hearing is not about the culpability and morality of Mr. Underwood. This application is not about whether Mr.Underwood intended to hire a prostitute or merely engaged in sex talk. The issue is whether the police went beyond permissible limits toattract Mr. Underwood into the commission of an offence.

In Mack at p 965, the Court provides a non-exhaustive list of factors toconsider: • the type of crime being investigated and the availability of other techniques for the police detection of its commission; • whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into thecommission of a crime; • the persistence and number of attempts made by the police before the accused agreed to committing the offence; • the type of inducement used by the police including: deceit, fraud, trickery or reward; • the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoingcriminal activity; • whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy andfriendship; • whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substanceaddiction; • the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harmcaused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; • the existence of any threats, implied or express, made to the accused by the police or their agents; • whether the police conduct is directed at undermining other constitutional values. [84] Prostitution and drugs are the type of consensual crimes recognized as requiring creative initiatives by police that ofteninvolve decoys or undercover agents. [85] While drug offences are a scourge on society, this offence is at the very lowest end of the continuum. [86] It is difficult for me to comment on what the average person, with both strengths and weaknesses, in the position of Mr.Underwood, would do.

This was not a clean and neat drug transaction. Even if Const. Budynski asked Mr. Underwood what he had, thecritical fact is that Mr. Underwood could have allowed Const. Budynski to walk away when he asked her if she was a cop. Instead, hetold her he had Oxy, which resulted in her returning to the vehicle. Even if she then pressured him into giving her a pill and later offeredto buy one, it was Mr. Underwood who ensured the contact continued, and with drugs on the agenda. [87] Mr. Underwood was not a vulnerable target and there was no evidence the police used any threats against him.

On theevidence I have accepted, he was a willing participant in the sexual dialogue and the interaction with Const. Budynski. C. Conclusion [88] In my view, the police actions in this instance did not amount to a testing of the virtues of people on a random basis and didnot approach the “calculated inveigling and persistent importuning” referenced by Justice Estey in R v Amato, (SCC),[1982] 2 SCR 418, 140 DLR (3d) 405. [89] Entrapment is found in only the clearest of cases. Mr. Underwood has not proven on a balance of probabilities that hecommitted the offence of trafficking only as a result of police conduct. V.

Procedural Issues [90] At the start of this application, there was debate over who had the obligation of calling the police witness. This became a non-issue as Mr. Underwood gave evidence first. This effectively shifted the burden onto the Crown to meet the prima facie case establishedby Mr. Underwood. As a result, the Crown called Const. Budynski and defence counsel was able to cross-examine her.

[91] Nonetheless, counsel invited me to comment on this procedural issue given the dearth of authority. What is the appropriateprocedure in the event the accused does not testify? [92] The only authority cited was R v Virgo (1993), (ON CA), 67 OAC 275, 22 WCB (2d) 458 (Ont CA)[“Virgo”], which suggests that in addition to the legal burden, the applicant also bears the evidentiary burden of calling witnesses,including, if necessary, police witnesses.

The applicant has no automatic right to cross-examine but must first have that witness declaredhostile or adverse in interest. [93] The Court in Virgo, referred to its earlier decision in R v Maxwell (1990), (ON CA), 1 OR (3d) 399, 42OAC 71 (Ont CA) [“Maxwell”]. In that case, the Ontario Court of Appeal allowed an appeal , holding that the trial judge had erred ingranting a non-suit to the Crown after the accused, but no police witnesses had testified.

The Court commented that while the legalburden rests with the accused to establish entrapment on a balance of probabilities, the evidentiary burden still rests with the Crown. [94] The Court in Virgo, referring to the Court’s decision in Maxwell, stated: There is no suggestion in those reasons that Maxwell should have an “automatic” right to cross-examine the police officers on theentrapment hearing. I see no reason why the normal rules respecting hostile and adverse witnesses should not apply to entrapmentproceedings. [95] With respect, this approach seems unfair.

Our criminal justice system values the accused who enters a guilty plea at theearliest opportunity. A guilty plea is the single biggest mitigating factor recognized in sentencing an accused. Yet, if an accused pleadsguilty in advance of the preliminary inquiry or trial, or if the preliminary inquiry is waived, they are deprived of hearing and testing thepolice evidence in advance of the entrapment hearing.

According to the authority in Virgo, the accused must then apply to have thepolice witness declared adverse or hostile before having the right to cross-examine. [96] This appears to me to be an overly cumbersome process and counter-intuitive. Normally, the Crown has the burden of provingreasonable suspicion beyond a reasonable doubt. Maxwell suggests that despite the legal burden resting with the applicant to proveentrapment on a preponderance of evidence, the evidentiary burden still rests with the Crown.

In my view, this would compel the Crownto make the police witnesses available to the applicant for cross-examination. The Crown would have the option of questioning thepolice witnesses in chief prior. VI. Conclusion [97] In conclusion, I find the police had a reasonable suspicion of possible criminal activity at the time they presented anopportunity for Mr. Underwood to commit a crime, and their actions were within acceptable limits. [98] I find Mr. Underwood has failed to establish entrapment on the preponderance of evidence and his application for a stay isdismissed. Heard on the 22nd day of January, 2016.

Delivered orally on the 11th day of February, 2016. Dated at the City of Edmonton, Alberta this 12 day of February, 2016. Dawn Pentelechuk J.C.Q.B.A. Appearances: Rowan Kunitz for the Crown Jamal Sawani

for the Accused]