R. v. Schulte Date:, 2013 BCPC 164

Citation: R. v. Schulte Date: 20130524 2013 BCPC 0164 File No: 153462-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Ban on Publication pursuant to s.517 CCC REGINA v. RORY MATTHEW SCHULTE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BLAKE Counsel for the Crown: J. Vivian Counsel for the Defendant: P. McKay Place of Hearing: Victoria , B.C. Date of Judgment: May 24, 2013

[1] THE COURT: First of all, I want to thank counsel for their focussed submissions, which allow me to give a decision soquickly after the fact. [2] These are my reasons, then, on the entrapment application. [3] At an earlier stage in this proceeding I found that the evidence proved beyond a reasonable doubt that on the dates of September10th, 2010, and September 17th, 2010, the accused person engaged in acts which constituted unlawful trafficking in the controlledsubstance heroin.

The actions of the accused on those two dates involved the sale of relatively small amounts of the illegal substance toan undercover police officer. [4] The accused takes the position now that his actions arose from entrapment by the police and that the court should enter ajudicial stay of proceedings rather than a conviction as a result. [5] It is acknowledged that on an application of this sort the accused has the burden of proving that entrapment occurred, and thatthe burden is discharged upon proof being shown on a balance of probabilities.

In that respect, I adopt the reasoning of the BritishColumbia Court of Appeal in R. v. Swan 2009 BCCA 142 , [2009] B.C.J. 623 at paragraphs 46 to 48. [6] It is important to understand the context in which the entrapment principle arises in order to assess its availability to an accusedin any individual case. As was stated in R. v. Mack (SCC), [1988] 2 S.C.R. 903, entrapment is a principle which appliesdespite the fact that the accused has actually committed an offence.

The principle arises in situations where the court concludes that thebehaviour of the agents of the state is so unfair or wrong that, notwithstanding the culpability of the accused, the state should not reap the"benefit" of that behaviour in the form of a conviction. [7] The principle involves recognition of the fundamental values which, over the long term, hold the community together. One ofthose fundamental values is the preservation of the purity of the administration of justice.

Acknowledging that entrapping an individualinto committing offences is improper is a mechanism for ensuring that the administration of justice continues to command the respect ofthe community. [8] At the same time, it is recognized that the agents of the state must, of necessity, engage in some furtive techniques in order toassist in the fight against crime.

With respect to the charge of drug trafficking, this countervailing principle has special meaning becausethe crime itself often involves consensual participants and may be particularly difficult to root out as a result. [9] Thus the court said in Mack, a case which I have already referred to, at paragraph 152: . . . [T]his crime is obviously one for which the state must be given substantial leeway. The drug trafficking business is not onewhich lends itself to the traditional devices of police investigation.

It is absolutely essential, therefore, for police or their agents to getinvolved and gain the trust and confidence of the people who do the trafficking or who supply the drugs. It is also a crime of enormoussocial consequence which causes a great deal of harm in society generally.

This factor alone is very critical . . . [10] Similar comments are made in the Swan case to which I have already referred. [11] In Mack at paragraph 115, the court expressed the view that entrapment may be found where the authorities have provided anopportunity for a person to commit an offence without having reasonable suspicion that he or she would do so beforehand, or where theygo beyond merely providing an opportunity and induce the commission of an offence through unfair or oppressive tactics. [12] It is the first limb of that test, concerning the reasonable suspicion of the police, which is a primary concern in this case,although I did hear evidence addressing both aspects of the matter. [13] The evidence before me on this application discloses that between late July 2010 and mid-August of 2010, the police receivedinformation from three independent sources that led them to the investigation in this case.

The sources all implicated a person namedEndicott in the offence of drug trafficking, using the dial-a-dope method of operation. [14] The police were well acquainted with Mr. Endicott. They had arrested him for similar operations in 2007, although theoutcome of those proceedings is not clear. Sergeant Brown testified before me that whatever the outcome of the proceedings may havebeen in 2007, he knew of Mr. Endicott's propensity to engage in drug trafficking and was in no doubt about it because Mr.

Endicott hadbragged to him about it to a considerable extent at the time. [15] The police knew the accused to have been an associate of Mr. Endicott in some way in those earlier years, but his preciseinvolvement in drug-related activity at that time is also unclear. Sergeant Brown testified that he thought that the accused had beenarrested at much the same time as Mr. Endicott but he was not sure.

In any event, it is common ground that he was never prosecuted atthat time. [16] In my view, the events of 2007 could have very little, if any, impact in the creation of reasonable grounds for suspicion againstthe accused person in 2010. [17] Sergeant Brown indicated that the police did not rely on the history of the accused to any significant extent when determininghow to proceed in the summer of 2010, but instead relied upon the new information provided by the three informants. [18] That information was quite detailed. In

summary, it described the nature of the drugs that Mr. Endicott was selling, beingcocaine in the information provided by the one informant, and cocaine and heroin in the information provided by the second informant. [19] All of the informants described the fact that there was a minimum purchase amount of $40 and two of them said that the

telephone number to use in obtaining the drugs was area code 250, 208-9345, and that the phone was manned on a 24 hour basis withdifferent individuals taking shifts. [20] The third informant did not refer to a specific telephone number but confirmed the existence of shifts over a 24 hour period. [21] Two of the three informants referred to the fact that after a drug order was placed, the seller would arrive at an appointedlocation on foot.

Two of the three informants referred to "Rory" as one of the persons manning the phones, and Rory was known to thepolice as being the accused. [22] None of these informants was of known reliability, but the degree of detail provided is compelling. The overlap in theinformation is also of significance, in my view. [23] I note what was said in R. v. Debot (SCC), [1989] 2 S.C.R. 1140 that while there are general categories to beused for assessing the strength or weakness of informant information, the categories need not all be filled to the same extent.

Weaknesses in one category may be compensated for by strengths in others. [24] Given the extent of the reliance which the police placed on the informant information the question that I have to determine iswhether the information from those sources was sufficient to give rise to a reasonable suspicion of the sort described in the first limb ofthe test enunciated in Mack. [25] I posed the test in that way because I accept the defence submission that the content of the first telephone call between theundercover investigator and the person later found to be the accused cannot itself properly be categorized as merely investigative innature. [26] Using language in common usage in the drug trade locally, the officer making that first telephone call provided the opportunityto the accused to engage in drug trafficking virtually immediately.

She was not gathering her suspicions at that stage, and therefore thecontent of the conversation itself cannot be considered in assessing whether the level of reasonable suspicion had been reached. [27] In that respect, this case must be differentiated from many of those which have been cited to me in argument, such as R. v.Imaro 2010 ONCA 122 or R. v. Olazo 2012 BCCA 59 , [2012] B.C.J. 234 (C.A.).

Unlike the situation in those cases, thequestion here must be whether the undercover operator had reasonable suspicions when she began that first call with the accused onSeptember 10th. [28] The term "reasonable suspicion" has been the subject of some judicial comment. I have referred to the decisions of R. v. Cahill(1992) (BC CA), 12 B.C.A.C. 247, R. v. Williams 2010 ONSC 1698 and R. v. Olazo, which I have already referred to,for guidance in that respect. [29] In the Cahill case, Mr.

Justice Wood, as he then was, said this, and I quote: . . . as a matter of abstract theory, a reasonable suspicion means something more than a mere suspicion and something less than abelief based upon reasonable and probable grounds. [30] In my view, the term reasonable suspicion implies that the suspicion in the mind of the investigator must be subjected to anobjective assessment of reasonableness. [31] It did not escape my attention that in his evidence in this case, Sergeant Brown was very clear in articulating the reasons whythe undercover operator was directed to commence the investigation and the reasons why she was directed to call the telephone numberwhich had been provided. [32] Sergeant Brown was, in my view, an unusually articulate and perceptive witness.

He was particularly clear in noting that theinformation provided by the informants was not being used to obtain a search warrant, nor to make an arrest, but merely to pursue anavenue of investigation. [33] His focussed assessment of the situation and his clear understanding of the legal standards to be me is encouraging.

Thespecificity of the information which the police had in this case was, in my view, of an entirely different nature than that which was usedby the police in the Swan case, and that case is plainly distinguishable on that basis alone. [34] I do acknowledge that the information which the police had was not specifically directed at the accused person. The police didnot know, importantly, that when they called the number provided, they would be speaking with the accused.

As a result, the accusednow takes the position that the status of the information which the police had must be said to fall below the level of "reasonablesuspicion". [35] After careful consideration I must say that I cannot accept the defence argument in that respect. I note specifically what wassaid in R. v. Mack at paragraph 109: Of course, in certain situations the police may not know the identity of specific individuals, but they do know certain other facts,such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring.

In those cases it is clearlypermissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves undersuspicion. [36] I note also that in the case of R. v. Barnes (SCC), [1991] 1 S.C.R. 449 at paragraph 18, the Supreme Court of

Canada used the specific passage that I just referred to, to find that it was permissible for the police to approach individuals within certain areas known for high levels of drug trafficking activity and ask those individuals if they have drugs for sale, even without specific knowledge ahead of time that the person questioned might be interested in such a transaction. [ 37 ] In the Swan case at paragraph 22 the British Columbia Court of Appeal accepted that the Mack and Barnes cases were authority for the proposition that the reasonable suspicion may be found either in respect to the individual being targetted or with respect to the area being targetted. [ 38 ] In my view, that analysis is analogous to the situation involving a known telephone call being used for dial-a-dope operations. [ 39 ] In the circumstances which existed in the present case, I am of the view that the police were not engaged in random virtue testing but instead had reasonable suspicions when they used the information provided by the three informants and then telephoned the number which they had been given.

It was not necessary for the police to specifically determine who it was that they were speaking to before providing the opportunity for a drug transaction.

That assessment of the situation, in my view, is consistent with the general principles underlying the notion of entrapment and the general latitude allowed to police when conducting investigations of this sort. [ 40 ] I turn, then, to the second limb of the analysis contemplated in the Mack decision, involving an examination of the extent of the pressure brought to bear on an suspect to engage in criminal activity. [ 41 ] The first drug transaction in this case was followed by a period of some days, during which the undercover operator attempted to make contact with the accused to engage in further transactions. [ 42 ] Admittedly the accused was not terribly receptive to those overtures from the undercover operator, but he did eventually agree to provide the officer with more drugs, and he did so. [ 43 ] I have examined the evidence concerning the nature of the solicitations made by the police officer throughout the entire period between September 10th and September 17th.

I have examined them in reference to the sorts of factors set out in paragraph 129 of the Mack decision as being relevant on an assessment of whether the police went too far in attempting to induce a drug sale. [ 44 ] In my view there was no unfair pressure exerted. I have no information before me from which I could reasonably conclude that the accused was particularly vulnerable or operating under any sort of physical or mental challenges.

He is apparently an adult male of average intelligence who was not threatened or exploited in any way as far as I can determine. [ 45 ] He was somewhat hesitant to deal with the person he did not know, apart from the single transaction which had happened on September 10th, but that is hardly surprising.

I would think it unusual if it were otherwise, given the nature of the transaction involved. [ 46 ] That, indeed, seems to me on the evidence to be consistent with the experience which the undercover operator had had from time to time when dealing with persons engaged in drug trafficking. [ 47 ] In the end result, I am not satisfied that the accused has shown that the principle of entrapment has any application to this case.

The police had reasonable suspicion to further their investigation in the manner in which they did, and they did not act improperly in any way in advancing the investigation once it had begun. [ 48 ] Accordingly, the entrapment application must be dismissed. [ 49 ] MR. McKAY: Thank you. So I take it at that point, then, you will register a conviction? [ 50 ] THE COURT: Yes. The conviction following upon my conclusion in February that the substance of the offence had been made out will now be formalized into the registered conviction. (reasons concluded)