R. v. Ketch, 2017 BCSC 2263

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ketch, 2017 BCSC 2263 Date: 20171205 Docket: 165076-4 Registry: Victoria Regina v. Douglas Lawrence Ketch Before: The Honourable Madam Justice J. DeWitt-Van Oosten Oral Reasons for Judgment Counsel for the Crown: John N. WalkerCounsel for the Accused: Michael T. MulliganPlace and Dates of Hearing: Victoria, B.C. December 5, 2017Place and Date of Judgment: Victoria, B.C. December 5, 2017 I.

INTRODUCTION [1] On October 25, 2017, I found Douglas Lawrence Ketch guilty of two offences under the Controlled Drugs and Substances Act,S.C. 1996, c. 19 (the "CDSA"): Count 1: unlawful trafficking in a controlled substance, Cocaine, contrary to s. 5(1); and, Count 2: unlawful possession of a controlled substance, Cocaine, for the purpose of trafficking, contrary to s. 5(2). [2] At trial, Mr. Ketch raised the defence of duress under s. 17 of the Criminal Code, R.S.C. 1985, c. C-46.

I found that the Crowndisproved the defence beyond a reasonable doubt. [3] My Reasons for Judgment on conviction are reported at 2017 BCSC 1953. [4] Mr. Ketch has not been sentenced. After the convictions were entered, he gave notice that he intended to apply for a stay ofproceedings based on the doctrine of entrapment. [5] The stay is sought as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act,1982, being

Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. [6] I heard submissions on the issue today. [7] No further evidence was called specific to the application for a stay. Instead, in advancing entrapment, Mr. Ketch relies uponthe evidence already called at trial. Both parties agree that the whole of the trial record is open for consideration in determining themerits of the application. II. ANALYSIS A. Legal Principles [8] The leading authority on the doctrine of entrapment is R. v. Mack, (SCC), [1988] 2 S.C.R. 903. At para. 130,the Supreme Court held that entrapment is established when one of the following two scenarios is shown to have occurred: (

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

b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing anopportunity and induce the commission of an offence. [Online version.]

[9] Mr. Ketch relies on the second of these branches in advancing his argument. [10] I agree with Crown Counsel that in light of this reliance, the question before the Court is whether, assuming police had areasonable suspicion that Mr. Ketch was engaged in criminal activity (which is not materially challenged here), the action taken underProject E-Piracy went beyond "providing an opportunity" and, instead, induced Mr. Ketch to commit the offences for which he nowstands convicted: R. v. Mack, para. 118. [11] In deciding whether police have induced the commission of an offence, within the meaning of R. v.

Mack, this Court mustconsider a number of factors, including (but not limited to): • 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; and, • whether the police conduct is directed at undermining other constitutional values: R. v.

Mack, para. 133. [12] For the purpose of entrapment, the conduct of police is to be assessed objectively: R. v. Mack, para. 132. Moreover, a"subjective evaluation of the accused's predisposition to commit the offence" is irrelevant to the analysis under the second branch: R. v.Cahill (1992), (BC CA), 13 C.R. (4th) 327 (B.C.C.A.); 1994 CarswellBC 465 (CA), para. 43. [13] The accused bears the burden of establishing entrapment on a balance of probabilities: R. v. Mack, paras. 152 and 154.

TheCrown concedes that where this test has been met, amounting to an abuse of process, the Court does not retain a residual discretion torefuse to enter a stay of proceedings. Indeed, as explained in R. v. Swan, 2009 BCCA 142: [46] ... a finding of entrapment is tantamount to a finding that allowing convictions to be entered would bring the administration ofjustice into disrepute.

Where the Court finds entrapment, it has, by definition, found that the circumstances gave rise to the "clearest ofcases" entitling the affected individual to a stay of proceedings. ... [48] Once the administration of justice has been brought into disrepute, the court has no alternative but to enter a judicial stay ofproceedings. B. Positions of the Parties [14] Counsel for Mr. Ketch argues that the evidence called at trial, and the findings of fact made on conviction, provide amplefoundation for a conclusion in favour of entrapment. [15] In his words, "Project E-Piracy did not detect a crime.

It spent 10 months manufacturing one". [16] In support of this argument, the accused points to: • the "dogged" nature of his pursuit by police, which lasted 10 months and required numerous direct and indirect interactions withMr. Ketch to achieve the police objective; • the undercover officer's testimony that Matthew Holland (as police agent) was "working Ketch hard" to obtain a commitment toproduce drugs; • Mr. Holland's testimony to this same effect. In response to questions put to him by defence counsel, Mr.

Holland acknowledged attrial that he "tried really hard … [he was] trying [his] best … any which way to get Mr. Ketch to sell [him] some drugs so [that he would]get [his] money" as an agent; • the references to violence that permeated the March 25, 2014 Cactus Club conversation between the agent and the accused,including references to a propensity for violence on the part of the agent;

• evidence of the accused apologizing to the agent for not being able to produce drugs as quickly as he wanted. According to thedefence, this shows that police were not investigating ongoing (or active) activity; rather, the accused had to locate, make arrangementsfor and then produce drugs before an offence would have occurred; • the "strong monetary incentive" offered to the accused to follow through on the agent's request for drugs; • the agent's "pre-existing reputation for serious violence" that, analyzed objectively, is said to have amounted to an implied threatagainst Mr.

Ketch if he did not produce what was asked of him; • evidence of mental and physical vulnerability on the part of the accused; and, • drug trafficking is "routinely prosecuted" based on evidence gathered through means that do not involve the use of a police agent. In other words, it was not necessary for police to resort to the use of Matthew Holland. [17] Mr. Ketch argues that in its cumulative effect, this evidence shows that the offences committed on April 3, 2014 were clearlybrought about by police conduct and would not have occurred without police involvement. But for the persistence of the pursuit ofMr.

Ketch, actively assisted by Matthew Holland, with a reputation for violence, the accused would not have arrived in the Costcoparking lot in Langford with two kilograms of Cocaine in his vehicle, one of which was then sold to the agent for $51,000. [18] The Crown says the accused has not met his onus in establishing entrapment, in fact or in law. [19] According to Crown Counsel, Mr. Ketch has "failed to establish the underlying facts in support of the argument headvances…".

Moreover, "many of the factual allegations he makes [in support of entrapment] have already been rejected by this Court". [20] This includes (but is not limited to), the finding set out at para. 105 of my Reasons for Judgment on conviction: On the evidence, I am satisfied beyond a reasonable doubt that the first essential element of the defence of duress has been disproved bythe Crown.

Based on the audio recording of March 25, the Blackberry exchanges, and the testimony of Matthew Holland, onceconsidered within the context of the evidence as a whole, I am convinced there was no explicit threat of death or bodily harm made to theaccused for the purpose of compelling him to commit the charged offences. Furthermore, I find as a fact that the acts, conduct or wordsof Matthew Holland, as established on the evidence, could not reasonably be construed as an implied threat to the accused, of the kindrequired by the defence of duress … C.

Application of Legal Principles to the Facts [21] On the whole of the evidence called at trial, I am not persuaded that entrapment has been established to the requisite standard ofproof. I have reached this conclusion with specific reference to the factors for consideration laid out in R. v. Mack. [22] First, counsel for the accused is correct that use of a paid police agent to approach, establish a rapport with, and then solicitdrugs from an intended target is not necessary to investigate drug trafficking.

I accept that there are other investigative techniquesreasonably available to police that do not engage this level of interaction with a suspect, with all of its attendant impacts. [23] However, the law is clear that the fact of a paid agent's involvement, standing alone, does not render police conduct inherentlyabusive. This is particularly true when the investigation is focused on a relatively sophisticated type of offending, such as the large-volume distribution or sale of illicit drugs. [24] As noted in R. v. Dikah (1994), (ON CA), 89 C.C.C. (3d) 321 (Ont.

C.A.), at p. 328, "the role of paid agentshas long been accepted as a valuable tool in fighting the drug trade". [25] I am also not persuaded that an average person in the position of this accused would be induced into the commission of a crime,as opposed to availing themselves of the "opportunity" provided by police. [26] At trial, I accepted that Matthew Holland likely presents as an intimidating figure, particularly to those who may be aware of hiscriminal antecedents and reputation for violence as an enforcer. However, I also found that in his interactions with Mr.

Ketch, "there wasno explicit or implied threat … of present or future death or bodily harm": 2017 BCSC 1953, para. 88. [27] There was "no evidence of Matthew Holland committing violence in the presence of the accused during project E-Piracy; noevidence of him brandishing a weapon; and, no evidence of an aggressive and threatening demeanour toward the accused…": 2017BCSC 1953, para. 104. [28] In my view, these findings cannot be ignored in assessing whether an average person who is similarly situated to the accused,experiencing the same set of dynamics that unfolded in this case, would be induced into the commission of a crime within the meaningof R. v.

Mack. [29] Although I accept that police were persistent in their efforts to engage Mr. Ketch and have him commit to the sale of drugs, itwas not done with a level of intensity, or modes of conduct, that carried a threat of harm or some other form of adverse consequence tothe accused in the event a transaction did not occur. [30] The manner in which the interaction unfolded between police, the agent and Mr.

Ketch was not such that it can reasonably besaid, from an objective point of view, that the capacity of an average person to resist the pressure imposed would have been overborne. [31] Indeed, when he apologized to Matthew Holland on March 25 for not being in a position to deliver the product that was wantedfrom him, Mr. Ketch was met with patience and, subsequent to the meeting, it was Mr. Ketch who initiated conversation in follow-up tothe requests made.

[ 32 ] The circumstances surrounding the interaction between Matthew Holland and the accused, as established at trial, necessarily inform the application of the entrapment doctrine. [ 33 ] Applying the third factor listed in R. v. Mack , the police were unquestionably persistent in their pursuit of Mr. Ketch. Counsel for the accused places particular emphasis on this factor, stressing that the targeted investigation lasted for about 10 months; consisted of repeated attempts to establish contact with Mr.

Ketch, both in-person and through electronic devices; and, it took considerable effort on the part of police to bring a transaction to fruition. [ 34 ] However, I found as a fact at trial that notwithstanding the length of the investigation against Mr. Ketch, he ultimately "held his own" during this interaction; there was no evidence of a "power imbalance" between Matthew Holland and this accused; it was Mr.

Ketch who initiated contact with police within a couple of days of the March 25 meeting; the conversation was "business-like"; and, he was the person who "set the terms of the arrangement for purchase and sale", including the date, time and place of the transaction: 2017 BCSC 1953 , at paras. 91 , 92 and 95. [ 35 ] In my view, the evidence in this case is profoundly different from what was before the trial Judge in R. v. Mack .

Based on those facts, the Supreme Court determined that the "persistence of the police requests" made of the appellant was in direct response to, or “as a result of”, the " equally persistent refusals " by the appellant to engage in the sale of drugs: R. v. Mack , para. 158 . [Emphasis added.] [ 36 ] The appellant testified in R. v.

Mack and explained that he repeatedly refused the invitations extended by the police agent to engage in illicit drug activity; was "adamant" with the agent that he "had no knowledge of drug sources" and, in fact, he "asked to be left alone": para. 4. [ 37 ] He furthermore testified that although he wanted nothing to do with the agent, he was "terrified" of him and felt threatened. This was the reason why he succumbed to the pressure placed on him: R. v. Mack , para. 4 . The trial Judge found support for the appellant's evidence in the testimony of the police witnesses: R. v.

Mack , para. 7 . [ 38 ] In the case before me, there is no comparable evidentiary foundation. [ 39 ] The fourth factor under the R. v. Mack analysis is focused on the type of inducement used by police. As noted, there was no evidence of threats used against Mr. Ketch to produce drugs. In terms of a monetary reward, he was offered nothing other than the cost of the drug purchase, a value that he set. [ 40 ] On the fifth factor, the timing of the police conduct, I am satisfied that police "instigated" (or initiated) the particular offences for which Mr.

Ketch now stands convicted. [ 41 ] However, I am also satisfied that Mr. Ketch was known to police (as well as Matthew Holland) for involvement in criminal activity; he was known to have contacts for the production of drugs; and, his conduct during the March 25 meeting at the Cactus Club, wherein he reached out to a number of contacts in the presence of Matthew Holland for the purpose of soliciting drugs, demonstrated the existence of contemporary and ongoing relationships with persons who I infer were drug suppliers or traffickers. The subsequent Blackberry dialogue bears this out.

Within this overarching context, I do not view the police role as "instigators" to be a significant factor in the analysis. See R. v. Mack , para. 125 . [ 42 ] There is no evidence of police exploiting Mr. Ketch's "human characteristics" during the course of this investigation, a sixth factor for consideration under R. v. Mack . [ 43 ] Nor do I find that police exploited a "particular vulnerability" on his part, a seventh factor for the Court to consider. I accept there is evidence of Mr.

Ketch having sustained a previous head injury, which impacts his memory; however, there is no indication from the evidence that this condition rendered him more susceptible to Matthew Holland's influence than he otherwise might be. [ 44 ] In applying the last three of the R. v. Mack factors, as referenced in para. 11 of these Reasons , I do not find the state conduct in this case "disproportionate" to the harm caused by the accused in possessing two kilograms of Cocaine and selling one of them. [ 45 ] In R. v.

Mack , at para. 157 , the Supreme Court recognized that drug trafficking is a crime: … for which the state must be given substantial leeway. The drug trafficking business is not one which lends itself to the traditional devices of police investigation. It is absolutely essential, therefore, for police or their agents to get involved and gain the trust and confidence of the people who do the trafficking or who supply the drugs.

It is also a crime of enormous social consequence which causes a great deal of harm in society generally … [Emphasis added.] [ 46 ] As explained earlier, and with specific reference to my Reasons for Judgment on conviction, I have found, as a fact, that there were no threats made to Mr. Ketch by police or Matthew Holland during the course of this investigation, implied or express. [ 47 ] And, finally, counsel for the defence makes no argument that the conduct of police in this case was "directed at undermining other constitutional values": R. v.

Mack , para. 128 . [ 48 ] On the whole of the evidence called at trial, I am not satisfied that entrapment has been made out on a balance of probabilities. The accused has not established that police went beyond “providing an opportunity" to commit the offences for which he has been convicted. [ 49 ] Whether the doctrine of entrapment is appropriately engaged in a particular set of circumstances warranting a stay of proceedings, involves a case-by-case analysis: R. v. Mack , para. 124 . [ 50 ] On the facts of this case, I have determined that the requisite burden of proof, borne by the accused, is not met.

[ 51 ] In my view, the argument made in favour of entrapment by Mr. Ketch suffers from the same fatal weakness that manifested itself in R. v. Cahill , a decision put before me by the Crown. [ 52 ] There, the appellant was convicted of three counts of trafficking in Cocaine. The essential elements of the offences were not in dispute. Instead, the primary issue at trial "was whether the conduct of the police, during the course of the investigation leading up to the commission of [the] offences, resulted in the unlawful entrapment of the appellant and amounted, therefore, to an abuse of process": R. v.

Cahill , paras. 2–3 . [ 53 ] The trial Judge found it did not and the application for a stay was denied. [ 54 ] In R. v. Cahill , a civilian agent used during the course of an undercover operation was provided with a weekly stipend for his expenses while working with police and "promised a tax free award at the end of the operation": at para. 7. Upon completion, he received just under $80,000 for about 15 months' work: R. v.

Cahill , para. 7 . [ 55 ] The trial Judge found, as a fact, that the agent "seriously abused" his position as agent, including cheating people out of money, committing assault and making violent threats that were taken seriously by the recipients: R. v. Cahill , para. 8 . In her words, the agent "virtually terrorized" the small community from which he was operating: R. v.

Cahill , para. 8 . [ 56 ] However, there was no credible evidence before the Court that the appellant, who sold drugs to an undercover officer arising out of his interaction with the agent, was himself impacted (and thereby driven) by this conduct: [45] The evidence of the five witnesses from Gibsons, which described the manner in which Barry abused his position as a police agent , and which the trial judge accepted, did not reveal misconduct directly relevant to the appellant's claim of entrapment … [ R. v. Cahill .] [Emphasis added.] [ 57 ] The appellant in R. v.

Cahill testified that he agreed to complete two or three drug deals in order to get himself, as well as an associate, "out from under" the agent's threats: paras. 23–26. However, the trial Judge did not find this testimony credible. Among other things, she found that his conduct was "inconsistent with a terrified person who is induced and threatened into the commission of illegal acts": R. v.

Cahill , para. 39 . [ 58 ] Rejecting this testimony left the trial Judge with no evidentiary foundation, specific to the appellant’s circumstances, from which entrapment could reasonably be said to have been established on a balance of probabilities. [ 59 ] The trial Judge found that the appellant in R. v. Cahill failed to meet his burden of proof. This determination was upheld on appeal. I. CONCLUSION [ 60 ] For the reasons provided, I find that Donald Lawrence Ketch has failed to establish entrapment on a balance of probabilities.

As such, his application for a stay of proceedings on this basis is denied. [ 61 ] The convictions stand. This matter must now move toward sentencing. "DeWitt-Van Oosten J."