R v Fox, 2021 ABQB 545

Court of Queen’s Bench of Alberta Citation: R v Fox, 2021 ABQB 545 Date: 20210715 Docket: 190122028Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Brad Fox Applicant _______________________________________________________ Oral Reasons for Decision of the Honourable Mr. Justice J. S. Little _______________________________________________________ These oral reasons follow a two day entrapment hearing. I. Background [ 1 ] Before the different procedure established by our Court of Appeal in R v Bank , 2021 ABCA 223 at paragraph 173 , Mr.

Fox pled guilty to one count of trafficking cocaine between November 28, 2018 and January 23, 2019 and then requested an entrapment hearing. The single count indictment covered three separate drug sales by Mr. Fox to undercover officers on November 28, 2018, January 22, 2019, and January 23, 2019. [ 2 ] Four police officers and Mr. Fox testified. Based on the evidence presented, Mr. Fox argues that he has proven entrapment on a balance of probabilities and that because his is one of the clearest cases, his conviction should be stayed. He raises two arguments: 1.

That the undercover police officer to whom he first sold cocaine did not have reasonable suspicion before providing him with an opportunity to commit the crime, and 2. That the undercover officers who used the same telephone number to contact him for the second and third buys cannot rely on the first buy to ground their reasonable suspicion. II. When was Reasonable Suspicion Formed for the First

Transaction? [ 3 ] In R v Ahmad , 2021 SCC 11 , the Supreme Court determined that, while preferable that on receiving a bare tip that a phone number is being used to sell drugs, the police first conduct an investigation to provide a foundation for reasonable suspicion before trying that phone number, the police are entitled to form a reasonable suspicion in the course of a call to that number. Reasonable suspicion is a low bar.

Criteria to be considered are the target’s responsiveness, the use of language of the criminal activity, and the police officer’s experience in that area of criminal activity. [ 4 ] The initial facts are not in dispute. The police Crime Stoppers line received a tip that a certain telephone number associated with the name Nidal was being used to sell cocaine. That tip was passed on to the Drug Undercover Street Team (DUST).

A cover manager who testified as UC 8340 then directed an undercover officer who testified as UC 8490 to contact that number to see if she could purchase drugs but confirmed that she would have to form her own reasonable suspicion before actually engaging in a transaction. [ 5 ] We have the exact words of the initial text trail reproduced from a screen shot. UC 8490 texted the number and asked what’s up. The recipient, whom we now know to be Mr. Fox, questioned who was asking and was told Serena. He said he did not know any Serenas and that she must have the wrong number.

UC 8490 texted back that she hoped not since she wanted to party. Mr. Fox asked how she got this number, and she responded that it was from Matt, who told her to text him. Mr. Fox asked who Matt was, and she said a tall white guy she met at the Pint. Mr. Fox then said he could not help her and was sorry. [ 6 ] The balance of the remote contact is then by phone, and accordingly we do not have the actual text. UC 8490 testified that she called the number about 30 minutes later. They had a very general conversation.

UC 8490 testified that at this stage, she was using drug culture terms like “I wanna party” and “can you help me out” but that there was no specific talk of drugs or quantity or money. She told him she was at a Boston Pizza, he said he was eating and would come by later, and he asked her to have Matt call him. She called that a “vouch check” whereby a dealer may require a known reference for a new contact, and she testified that his offer to come by later was typical of a drug transaction. [ 7 ] She testified that forty minutes later, he called to ask where she was and said he would be by in 15-20 minutes.

Close to an hour passed, and UC 8490 called him to ask if he was close. He said he had forgotten and was downtown. She called him a few minutes later to change the meeting place to Canadian Brewhouse, and he asked her to call when she got there. She did so. [ 8 ] When he arrived, he parked close to her, she got in his car, and he drove a short distance, parking next to a dumpster. She remembered seeing a baby seat in the car. She asked him who Justin was – a name that showed up on her phone from two recent missed calls. He said that was a company name. She asked him his name, and he said Eric.

He then asked what she needed. She said 1 for 100 soft, which is drug talk for a gram of cocaine, he handed her two small bags, and she handed over marked money. [ 9 ] He called her later to apologize for having been rude. [ 10 ] She had no further contact with Mr. Fox until January 22, 2019 other than her receipt of a text from his number containing a general mailout, what Mr. Fox called a “fan out”, to his customers advertising some special deals on drugs. [ 11 ] Mr.

Fox acknowledged the accuracy of the text trail, but his recollection of the phone calls differs. [ 12 ] He testified that when she called back, he was sitting down to eat with a buddy and remembers telling him that she was persistent and sounded pretty hot. He asked her what she wanted and she said a 100 piece, a rare request which means cocaine. So he decided to meet her but then forgot about her. When she called back, he told her he had forgotten but agreed to come and see her at the Brewhouse.

When he arrived, she got in his car, they drove to the end of the parking lot, and he observed her for a bit before asking what she wanted. She said $100 worth, so he sold cocaine to her. [ 13 ] UC 8490 refreshed her memory when necessary by referring to notes made contemporaneously and a report prepared from those notes some days after. Her memory was not impeached on cross-examination.

While, as defence counsel pointed out, she was quite junior at the time, she had been on downtown patrol for a year and a half before joining DUST, had been the primary investigator on about 50 drug possession charges, and had participated as a primary investigator, assistant, and cover manager in about 20 undercover operations. She had taken a two week course on undercover drug operations which covered drug language, pricing, and practice scenarios. This was her sixth buy in two months. [ 14 ] Mr. Fox acknowledged being a drug dealer.

He has an extensive record of convictions against the administration of justice, including assault of a peace officer, obstruction of justice, and 15 failures to comply. Coincidentally, UC 8490 had used the pseudonym Serena, which was the name of Mr. Fox’s ex-girlfriend whom he claimed was responsible for his failures to comply, though in the text trail he denied knowing any Serenas. He testified that he might have done a hundred of this type of drug transaction around the time of this one.

He claimed to have a clear memory of the telephone conversation with UC 8490, yet he forgot to call her back after his meal and after receiving what he testified was a rare request. And he had no memory at all of the third call. [ 15 ] The offender bears the onus of proving entrapment on a balance of probabilities. I need not conduct a WD analysis respecting his testimony.

But in this credibility contest, I accept the testimony of UC 8490, a trained undercover operator junior enough to want to ensure that she did things by the book and who clearly understood that she had to form reasonable suspicion before presenting an opportunity, paid close attention to her role, and took notes. She testified that she had been building towards reasonable suspicion in every communication with Mr. Fox and that it peaked when he arrived to meet her, drove her to the end of the parking lot, and asked her what she needed. [ 16 ] The only corroborating evidence for Mr.

Fox’s theory, that she presented an opportunity in the first phone call before there was any basis for reasonable suspicion, is the testimony of UC 8490’s cover manager UC 8340. Cover managers stay in close contact with their operators, and she testified that in an early phone call, UC 8490 told her that the deal was pending with Eric, which she said

meant that the type of drug, quantity, and price had been agreed upon. UC 8490 testified that she told her cover manager only that a meeting had been arranged. I note that neither UC 8490 nor Mr. Fox testified to Mr. Fox using the name Eric until he and the undercover officer were in the car. By the time of the second buy, UC 8490 used the name Eric, and I can conclude only that UC 8340 in referring to Eric and that a deal was pending might have been confusing the first buy with the second. [ 17 ] Mr.

Fox has not persuaded me on a balance of probabilities that UC 8490 offered to purchase drugs too early in this transaction. I find that UC 8490 did not present an opportunity to Mr. Fox until she had developed a reasonable suspicion that he was a dealer. III. Effect of the First Transaction on the Other Two [ 18 ] If I am wrong in my conclusion that Mr. Fox was not entrapped in the first transaction, I will deal with whether entrapment in that transaction tainted the next two. [ 19 ] The second and third buys were on January 22, 2019 and January 23, 2019.

Officer Dickson testified that, independently of DUST, he and his Special Projects Team had been investigating the same phone number since December 21, 2018 based on the same Crime Stoppers tip. It was not until his unit was some way into that investigation, which involved surveillance of the Nidal previously associated with that number and Mr.

Fox as an associate of Nidal, that he did a conflict check with DUST and determined that DUST had already done a buy from that number on November 28, 2018. [ 20 ] I find that by January 22, 2019, his team had independently developed a reasonable suspicion before he asked DUST to conduct a second buy by UC 8490 and a third buy the next day by UC 8583. [ 21 ] That being the case, I find that for the second and third buys, the police had formed a reasonable suspicion independently of the November, 2018 buy and that it was unnecessary for the undercover officers to form their own reasonable suspicion. IV.

Clearest of Cases [ 22 ] Mr. Fox argues that he made frequent attempts to get rid of UC 8490 and that it was her persistence which resulted in the ultimate purchase and sale. [ 23 ] UC 8490 testified that in the drug culture hierarchy, the dealers are on top, and it is not uncommon for users to appear to be desperate. I accept her

interpretation of the texts and calls leading up to the first buy. The language of the texts tells me that UC 8490 was angling towards a drug purchase without specifically saying so. I accept also that Mr. Fox was being careful how he responded to what was essentially a cold call from an unknown potential customer. He testified that that was required in his business. I reject the notion that UC 8490 was unduly persistent or that Mr.

Fox was attempting to get rid of UC 8490 and eventually succumbed to her persistence by meeting surreptitiously in a parking lot and exchanging conveniently wrapped illegal drugs for money. [ 24 ] Wakeling, JA in Bank at paragraphs 131-136 cites examples of two initial conversations between an officer and a target, one of which satisfies the reasonable suspicion criteria during the conversation and the other one of which does not but leads to a meet where the purchase and sale occurs.

The second scenario is similar to the one before me. [ 25 ] I have already determined that UC 8490 had formed reasonable suspicion by the time of the ultimate meet based on an

interpretation of the initial text and her recollection of the subsequent conversations. But, instead of parsing the language used and determining who called whom and when, if I were to look at the entire first transaction from start to finish, I see an initial call from an experienced drug purchaser to an experienced drug dealer which resulted in the purchase and sale of an illegal drug. [ 26 ] Looking at the second and third buys, I see the police investigating a phone number, determining that Mr.

Fox is associated with that number, then determining that one of their colleagues has purchased drugs through that number in the recent past, and asking her to try again. She does, and also asks if a friend can call, who also does.

Both calls result in sales. [ 27 ] Given the first principles of the doctrine of entrapment, namely that the police not engage in random virtue testing nor use nefarious means to induce ordinary citizens into committing crimes, I do not see the case before me as being one of the “clearest of cases” which would justify a consequent stay of the conviction even with a finding of entrapment. V. Conclusion [ 28 ] I find that the entrapment argument fails and that Mr. Fox’s conviction stands. [ 29 ] Thank you to counsel for their comprehensive written briefs provided in advance of the hearing.

They helped considerably in narrowing the issues. Heard on the 12 th day of July, 2021 to the 13 th day of July, 2021. Oral judgment delivered the 14 th day of July, 2021.

J.S. Little J.C.Q.B.A. Appearances: Angela Duffield for the Respondent David Wolsey for Applicant