R. v. Salvona Date:, 2011 BCPC 197

Citation: R. v. Salvona Date: 20110310 2011 BCPC 0197 File No: 172720-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NICHOLAS JAMES SALVONA RULING ON APPLICATION OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: Federal Crown: C. Choi Counsel for the Defendant: S. Hutchison Place of Hearing: Surrey , B.C.

Dates of Hearing: January 6, 7, 2011 Date of Judgment: March 10, 2011 INTRODUCTION [ 1 ] THE COURT : An undercover officer purchased $20 worth of crack cocaine from the accused after calling a cell phone number which her colleagues believed to be what is colloquially called a “dial-a-dope line.” I convicted him of trafficking in a controlled substance and possession of controlled substances for the purpose of trafficking.

He now seeks a stay of proceedings on the basis that the police conduct constituted entrapment because the officers did not have a reasonable suspicion that the person or persons using that number were involved in selling controlled substances. [ 2 ] Counsel agreed that the legal issue in this case is as stated in the case of R. v. Swan 2009 BCCA 142 of the B.C. Court of Appeal. The question is this: has the accused established that the police officer presented the accused with an opportunity to commit a crime without a reasonable suspicion that the accused was already engaged in the trafficking of drugs?

The critical issue for this case is whether the information provided by a confidential informer was sufficient to form the basis of a reasonable suspicion. CIRCUMSTANCES [ 3 ] Cpl. Dickson, a member of the Surrey RCMP Drug Squad, testified that on February 11th, 2009, he received a tip from a confidential informer that three cell phone numbers were connected to drug trafficking -- that is, they were “dial-a-dope” numbers. The

officer had known the informer for about three months. The informer had only a minor criminal record but was involved in the drug business. The officer did not find any information which suggested that the informer was unreliable or had given unreliable information in the past. The informer was not paid for providing this information. [ 4 ] Cpl. Dickson and other drug squad officers checked each of the phone numbers on the police computer information database. For two of the numbers, they found that there were drug related files or investigations related to those numbers.

However, the search found no such information relating to the phone number that the undercover officer used in this case. Cpl. Dickson said that he was confident that the information provided by the informer was reliable. [ 5 ] On August 22nd, 2009, an officer called the other two numbers. There was no response in that the officers were unable to generate any drug trafficking activity. The undercover officer then called the third number, that is the number used in this case. The evidence does not establish who answered the call. It was either the driver or the accused.

The call was quick and direct wherein the dealer immediately set up the meeting for the drug sale. The undercover officer did not have to encourage or inveigle the subject to sell the drugs. She made the purchase within minutes of making the call. [ 6 ] At trial the accused denied that he participated in the sale. He only admitted that he was the passenger in the vehicle from which the officer made the purchase. I rejected his evidence.

REASONABLE SUSPICION [ 7 ] A reasonable suspicion is something more than a hunch but is less than a reasonable grounds to believe that a person is committing or has committed an offence. There must be an objective basis for the suspicion, that is in this case the question would be: would a reasonable person in the position of the officer also believe that there was a reasonable suspicion that the suspect who answered the phone was involved in the sale of drugs, that is a suspicion formed before any conversation took place. ANALYSIS [ 8 ] The issue must be assessed by examining the totality of the circumstances.

I must not substitute my opinion for that of the officer. What was the nature of the informer's information? It can be characterized as follows. The informer had only had a relatively brief relationship with Cpl. Dickson. The informer had not previously supplied information which led to arrests or drug recoveries. The informer was involved in the drug business; was not paid or given any other benefit for providing this information. The informer had a minor criminal record. The informer had no record of having given unreliable or false information in the past.

Thus the informer could be regarded as potentially reliable. But given the lack of providing reliable information in the past, the information that he or she provided could not be relied on by itself to establish a reasonable suspicion. [ 9 ] The investigators checked the PRIME database and learned that the two other numbers had entries which showed that they were connected to drug activities. The officers did not do any further investigation. They did not do any surveillance of any vehicle that may have been connected to the numbers.

They did not ask other officers for any information that they knew about the cell number involved in this case or the other cell numbers provided by the informer. As well, the information relied upon in this case was about six weeks old, that is there was no attempt to update the information. [ 10 ] However, Cpl. Dickson testified that although the tip was about six weeks old by the time this operation took place, it was unusual that numbers which had once been used for trafficking drugs stopped being used for that purpose.

The main point in this case is that the police records showed that two of the three numbers provided by the informer were likely to be connected to the drug trafficking business. While the information was not described in detail, there is really no reason to conclude that it was of low or questionable reliability. [ 11 ] These circumstances made it more probable that the third number was connected to drug trafficking. That is the informer's tip was not in itself obviously unreliable or inaccurate. It was specific and came from someone involved in the drug business.

The informer had not given false or unreliable information in the past. The fact that two of the three numbers given to the police were likely connected to persons who sold drugs strongly suggested that the information was reliable. Thus the fact that the police had no specific information that the third number was involved in the drug trafficking business did not preclude the police from forming a reasonable suspicion. The suspicion was more than just a hunch. It was based on information which was reliable, specific and accurate. For these reasons I find that the accused was not entrapped.

The officer did not engage in what is often called “random virtue testing.” [ 12 ] The application for stay of proceedings is dismissed. It is therefore not necessary for me decide whether the fact that the accused denied any involvement in the offence precluded him from relying on the defence of entrapment. (RULING CONCLUDED)