R. v. Cordero Date:, 2012 BCPC 280

Citation: R. v. Cordero Date: 20120510 2012 BCPC 0280 File No: 182690-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NIKKI ANTHONY CORDERO RULING ON APPLICATION OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: Federal Crown: F. Lepine Counsel for the Defendant: B. Martland Place of Hearing: Surrey , B.C. Date of Hearing: April 13, 2012 Date of Judgment: May 10, 2012 [ 1 ] THE COURT : These are oral reasons on an application by Mr. Cordero.

INTRODUCTION [ 2 ] The accused was charged and convicted after a trial with possession for the purposes of trafficking of cocaine and heroin. Subsequent to his conviction the accused, through counsel, applied for a stay of proceedings based on a claim of entrapment. These are the reasons on that application.

FACTS [ 3 ] A confidential police informant provided information to a police officer that a phone number was being used as an active contact line for the purchase of narcotics by a distribution system known as "dial-a-dope." In this system, a customer wanting to buy narcotics will call the dial-a-dope phone number, a drug trafficker will answer the phone, and upon being satisfied with the order for narcotics, deliver the drugs to the customer's location.

This is a drug distribution system that is very difficult to interdict and highly pernicious because drug distribution becomes widespread into all areas of this community, including residential neighbourhoods. [ 4 ] In the case at bar, the informant had been providing police information about criminal activities for four years. None of the information provided by the informant had been proven to be false or inaccurate. Information provided by the informant concerned more than eight dial-a-dope operations.

On one occasion information provided by the informant led to a conviction. [ 5 ] An undercover police officer was given information received by the handler of the informant that the phone number was being used actively for a dial-a-dope distribution network which was being conducted on the Surrey/Delta boundary. The information from the informant was that the actual traffickers were said to be a South Asian male with a female passenger, and a solo, young Chinese male driving either a grey or silver Honda motor vehicle. Specified locations for drug sales were also provided.

The undercover officer phoned the active dial-a-dope number and pretended to be a customer for drugs previously unknown to the dealer. A conversation at 1:55 p.m. occurred as follows: CORDERO: Hello. CST. LONG: Hey. CORDERO: Hey. CST. LONG: Can you meet me? CORDERO: Yeah. Who's this? CST. LONG: It’s Crystal. CORDERO: Do I know you? Were you with Ken this morning? CST. LONG: Pardon? I can't hear you. CORDERO: I don't know you. CST. LONG: No, you don't know me. I got your number from Mike at 64th and 124th. CORDERO: Oh, yeah. Mike? Okay. What do you want? CST. LONG: I got 60, can you do 60?

CORDERO: What do you want? CST. LONG: Up. CORDERO: Where are you? CST. LONG: I'm at 68th and 121st by some park here. CORDERO: Okay. I'll be less than ten minutes. CST. LONG: Okay. Bye. The cell phone call was disconnected. [ 6 ] The undercover officer waited at the agreed meeting place, and while she was waiting she received a phone call from a person identified as "D" who said he was associated with the male Cst. Long had just spoken to on the dial-a-dope cell phone line. The purpose of the call was, based on its contents, to determine if the undercover officer was a police officer.

That conversation at 2:07 p.m. was substantially as follows: "Hello. "Who's this?" "D. I am D, the buddy of the fellow you just spoke with." "D" then asked a series of questions: "How do you know Mike?" "Are you a working girl?" "How did you get this number?" Then the undercover officer heard a telephone ring over "D's" line. "D" asked the undercover officer to hold on the line. Cst. Long heard one side of the conversation conducted by "D." She heard "D" speak to his caller and tell the caller to roll past the location where Cst.

Long was waiting and "check her out." She then heard "D" say, "It's all good, okay?" [ 7 ] At 2:10 p.m. the undercover officer saw a grey Mazda automobile driven slowly north bound by a sole Asian male, talking on a cell phone, on 121st Street pass the location where the undercover officer was standing, the driver staring at her. The Mazda was driven into a housing complex where the vehicle made a u-turn and then approached the location of the undercover officer. "D" told the

undercover officer to hang up and his buddy would call her. The driver of the Mazda, the accused in this case, signalled to theundercover officer who then approached the Mazda. The driver's window was open. She said to the driver, "I was just speaking to "D." Are you "D's" buddy?" The driver in this case, the accused, replied, "Yes, "D" works for me." The accused asked, "Are you a cop?" The undercover officer said, "No." The accused asked if she had any identification.

The undercover officer said she did not have anyidentification and showed the inside of her purse to satisfy the accused that she had no identification.

The undercover officer wassatisfied at the time that she was able to identify the voice of the driver as the first person she had spoken to on the cell phone. [8] The accused asked the undercover officer, "Do you have the 60?" The undercover officer asked if he had "the stuff." Theundercover officer then exchanged $60 (buy money, three $20 bills for which the serial numbers had been recorded by police and thebills photocopied) with the accused at the driver's window of the Mazda for three small rocks of cocaine packed in a plastic baggy. [9] Following the drug purchase the undercover officer used a cell phone to advise her cover officer that a drug buy had beenconcluded.

An arrest team of police then stopped the accused and he was removed from his vehicle and arrested. The accused wasplaced in a seated location on a sidewalk facing the street. The undercover officer drove slowly past that location and was able toidentify the accused as the person who had sold her three rocks of cocaine a few minutes earlier. [10] In the search of the accused incident to arrest, a small quantity of heroin was found on the person of the accused. The buymoney was also found in the vehicle driven by the accused at the time of his arrest.

THE LAW [11] In an application for a stay of proceedings the burden of proof is on the accused to prove on a balance of probabilities that theconduct of the police amounted to an abuse of process in the form of entrapment. If the accused proves entrapment, a stay of proceedingis an appropriate remedy, R. v. Jewitt, (SCC), 1985 2 SCR 128, but only in the clearest of cases. The law of entrapmenthas been described in R. v. Mack, (SCC), 1988 2 SCR 903, where the two principal basis for the test of entrapment setout at pages 964 and 965 are as follows:

a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this personis already engaged in criminal activity or pursuant to a bona fide inquiry, and

b) although having such a reasonable suspicion or actingin the course of a bona fide inquiry, the authorities go beyond providing an opportunity and induce the commission of an offence. [12] In the subsequent case of R. v. Barnes 1991 1 SCR 499, the court made it clear that: "a bona fide inquiry" can have apermissible aspect of randomness where the investigation is directed at a location defined with sufficient precision to exclude "randomvirtue-testing" where it is reasonably suspected that criminal activity is occurring.

The standard of reasonable suspicion is lower than"reasonable and probable grounds" but higher than mere suspicion. (See R. v. Kang-Brown 2008 SCR 18, and R. v. Williams 2010 Ont.SC 1698) [13] Recently, R. v. Swann 2009 BCCA 142, and R. v. Olazo 2012 BCCA 59 , 2012 BCJ 234 have been decided in theBritish Columbia Court of Appeal. [14] In Swann, the court found the question, "Are you working?" was susceptible to an innocent characterization and not necessarilya reference to trafficking drugs.

This was in circumstances where Swann had pleaded guilty to a count of possession of cocaine for thepurposes of trafficking, and then applied for a stay of proceedings based on entrapment. The police had, in that case, compiled a list oftelephone numbers suspected to being associated to persons involved in dial-a-dope transactions. The sources of the numbers werevaried, including anonymous tips and Crime Stoppers tips. The phone numbers were then given to an investigator who called thenumber and attempted to make a drug deal speaking to whoever answered the phone.

In Swann, the investigator called one of thenumbers given and asked two questions after giving the call-taker her name.

The questions were, "Are you working?" and, "Could youmeet me in 20 minutes?" and, "I need 40 up." [15] The Court of Appeal found that the list of phone numbers made no distinction between numbers obtained from anonymous tipsand "more reliable tips providing further information about a particular suspect or telephone number." Of that list of telephone numbers,the Court of Appeal concluded at paragraph 39: The best that can be said is that the numbers were linked to individuals about whom there may be only a mere suspicion that they may beinvolved in the drug trade.

The suspicion of the investigator arose only because the telephone number was on the list. [16] The court concluded that the police overstepped the bounds of a bona fide police investigation by proceeding armed with only amere suspicion "with the hope their unknown targets will provide something more which was a necessary precursor to the invitation totraffic in drugs." The Court of Appeal reversed the trial decision and found entrapment with the remedy of a stay of proceedings. [17] In R. v.

Olazo, cited above, the accused were arrested after selling cocaine to an undercover officer following a series of cellphone calls to a suspected dial-a-dope line. The cell phone number was provided by an informant who gave a police officer information. The information included a cell phone number for an active drug line in North Delta and Surrey, that it was operated 24 hours a day,seven days a week, where persons with the names of Dave or Chris worked the line on different shifts.

One of those persons was eitherChinese or Hispanic and they used two vehicles, a Cavalier and a gold-coloured Ford Explorer. [18] The informant had not previously provided information to the police and the reliability of the informant was uncertain. Thepolice officer who received the information then asked an undercover officer to contact the cell phone number to see if she could arrange

a drug purchase. The undercover officer made the phone call, asking the call recipient if they could meet, and negotiated to buy two "40 rocks" of cocaine for $70. The undercover operator and the call recipient agreed to meet at a specified location 20 minutes later. The purchase did not go ahead as the vendor did not show up when he told the undercover officer by telephone that he did not attend the specified location because he saw police presence there.

Further calls were made to the cell phone number provided by the informant and a buy meeting was arranged where the accused was arrested. [ 19 ] The trial judge in R. v. Olazo relied upon R. v. Swann , noting that no police investigation, corroboration nor confirmation of any of the information about the cell phone number or its subscriber was available. The trial judge equated the information obtained as nothing more than mere suspicion provided by the Crime Stoppers tip in R. v . Swann .

The Court of Appeal in Olazo at paragraph 17 concluded that: ... a tip from an informant of unknown reliability will create a reasonable suspicion when some "objective" or "extrinsic" piece of information in the tip is confirmed. At paragraph 18 the court also stated that: Confirmation of the tip must precede the offer.

Were it otherwise, determining reasonable suspicion would be a bootstrapping exercise and ex post facto reasoning would allow the opportunity made on mere suspicion, if taken up, to raise the level to the requisite standard: see Swann at para. 39 . [ 20 ] That said, the court in Olazo then referred to R. v. Imoro 2010 ONCA 122 , where the Ontario Court of Appeal concluded that the question put to a suspect, "Can you hook me up?" was not an opportunity to commit a crime, but rather part of a bona fide police investigation.

Laskin, J.A., of the Ontario Court of Appeal in that case noted: By the question “Can you hook me up?” all the officer really asked Mr. Imoro was whether he was a drug dealer. The question was simply a step in the police officer's investigation. In the subsequent decision of the Supreme Court of Canada in Imoro 2010 SCR 50, LeBel, J., stated: Like the Court of Appeal for Ontario, we are all of the view that there was no entrapment.

On the facts of this case, the brief conversation between the police officer and the appellant near his apartment could not ground a finding of entrapment. [ 21 ] Following the reasoning set out above, the Court of Appeal in R. v. Olazo concluded: By this approach police can achieve a level of reasonable suspicion... in the preliminaries of drug transaction without risking entrapment. The Court of Appeal found: ...the trial judge erred in excluding the first call placed by [the undercover officer] in deciding whether the police provided an opportunity based on reasonable suspicion. The call confirmed the tip.

The police acted on reasonable suspicion; there was no entrapment. In Olazo the court distinguished R. v. Snow on its facts. POSITION OF THE APPLICANT [ 22 ] Mr. Martland for the applicant argued initially that the police, including the undercover officer, did not have reasonable suspicion when the call was made to the dial-a-dope line. Further, the opening of the telephone conversation between the undercover officer and his client was capable of an innocent construction. Counsel relied on the cases cited above and added R. v. Gladue 2011 ABQB 194 to the submissions.

The facts in Gladue are that informant of unknown reliability supplied information about a dial-a-dope line to a peace officer. The officer forwarded a written request for investigation of the dial-a-dope line to an undercover street investigation team. [ 23 ] The information about the line which was provided included two specific street locations and a specific restaurant where drug dealing was alleged to take place. No vehicle description or physical description of any individual selling drugs was associated with the dial-a-dope line in the informant's information.

The police officer phoned the number and asked the call recipient if he was "working" or "rolling," and received a positive response. The investigator then negotiated the purchase of four half-gram pieces of crack cocaine for $110. A meeting place was arranged and the drug transaction was concluded a short time later and the accused was arrested. [ 24 ] The court in Gladue analyzed the conversation between the investigator and the accused as an opportunity to commit a crime.

It was submitted that on the facts of the case at bar the police acted without reasonable suspicion in calling the cell phone which led to the contact with the accused. The subsequent offer by the police to invite the accused to sell drugs to the undercover officer was therefore an abuse of process and the remedy of a stay of proceedings was appropriate. The court in Gladue was referred to R. v. Swann

but not to R. v. Olazo which was decided approximately one year after Gladue was decided. Defence counsel submitted that there had been an abuse of process because of entrapment and a stay of proceedings was the appropriate remedy. POSITION OF CROWN COUNSEL [ 25 ] Crown counsel took the position that while there was no decided case where evidence in support of a reasonable suspicion had come from a reliable informant, such information from a reliable informant was sufficient to support a reasonable suspicion.

Further, it was submitted that the initial conversation in this case, "Can you meet me?" followed immediately by "Yes" from the accused was not capable of an innocent construction given the conversation was between two complete strangers. The evidence of the undercover officer that her initial question was meant "Are you prepared to sell me drugs?" and there was no evidence to the contrary. The evidence of Cst. Vaughn Smith, an expert on street-level trafficking, called by the Crown, supported the conclusion of Cst. Long.

APPLICATION OF THE LAW TO THIS CASE [ 26 ] In the case at bar, the paramount issue is did the police have reasonable suspicion that the dial-a-dope line was actively selling narcotics before the call was made to that line by the undercover officer? The informant who supplied the cell phone number used by the accused to the police provided reliable information to the police over a period of four years, none of which information was found to be incorrect or false.

The informant provided information on at least eight other dial-a-dope lines which have been investigated and led, in at least one occasion, to a conviction. The informant has not been paid at any time; nor since the first arrest of the informant in 2006 had the informant received any benefit from the police in return for information provided. On that evidence which I have heard, the only rational inference to be drawn, and the one I draw, is that the informant is a reliable informant. This fact distinguishes the case from R. v.

Swann , which has no further application to the present facts. [ 27 ] The commencement of the call to the dial-a-dope line, "Can you meet me?" was not an opportunity but rather the opening gambit in an investigation. ( R. v . Olazo , paragraphs 22 at 26.) Like R. v.

Olazo , that initial question was, I find, an investigative step to see if the person answering the phone was prepared to respond positively to the opening query from a stranger, a query expressed in terms familiar to drug traffickers and otherwise obscure to ordinary persons. [ 28 ] In the case at bar, a tip from a reliable informant might itself be sufficient to found a reasonable suspicion, but coupled with the response of the accused to the initial question posed by Cst.

Long which confirmed the tip, she clearly at that time had a reasonable suspicion to act upon in continuing the investigation. [ 29 ] The case of R. v. Gladue cited above involved the use of information obtained from an informant of unknown reliability. This is a significant difference from the case at bar where a reliable informant had provided reliable information concerning a number of dial- a-dope operations over a four-year period.

Contrary to the approach of the Court of Appeal of British Columbia in Olazo , the court in Gladue did not address the issue of whether the opening questions and answers between the undercover officer and the person who answered the dial-a-dope line was sufficient to raise the information from a mere suspicion to a reasonable suspicion. [ 30 ] The court in R. v. Gladue quoted Laskin, J.A., from R. v. Imoro that when the officer asked the question "Can you hook me up?" the officer did not have a reasonable suspicion that the accused was trafficking in narcotics.

However, the court in Gladue did not then follow the finding made by the court in Imoro that the question was designed by the policeman to find out if the accused was a drug dealer. At paragraph 16 in the decision of the Ontario Court of Appeal, Laskin, J.A., stated: The question was simply a step in the police's investigation of the anonymous tip. It did not give the accused an opportunity to traffic in drugs. The court went on to conclude that the opportunity did not arise until the parties got down to the actual drug transaction. [ 31 ] As noted in R. v.

Olazo : Entrapment law distinguishes investigation from opportunity. Steps taken to investigate reliability of a tip falling short of an opportunity to commit an offence, will not give rise to the defence. At paragraph 25 of Olazo the court stated: By this approach police can achieve reasonable suspicion by engaging in the preliminaries of a drug transaction without risking entrapment. [ 32 ] The decisions of Gladue and Olazo cannot be reconciled, and I am bound to follow the decision of R. v. Olazo . In R. v.

Olazo the initial conversation between the undercover officer and the accused was very similar to that in the case at bar. There the court held the initial positive response was expressed in terms familiar to drug dealers but unfamiliar to ordinary persons. That same response was made by the accused in the case at bar and the response was intended to indicate a willingness to sell drugs that was supported on the evidence noted above. By that stage, the Court of Appeal found that Cst.

Long had acquired reasonable suspicion that: She was speaking to a person to engage in trafficking and that she could go on and provide the opportunity for the transaction. (Para. 26 of Olazo )

I find the detailed information provided by a long-term, reliable informant was sufficient in itself to give rise to a reasonable suspicionupon which Cst. Long in the case at bar could action without danger of entrapment. [33] In cases such as R. v. Charlton (BC CA), 1992 BCJ No. 1405, information from a reliable informant wasfound to be substantial support for a finding of reasonable and probable grounds for an arrest. Other like cases have found informationfrom a reliable informant is also sufficient to support reasonable and probable grounds for the issue of search warrants.

Reasonable andprobable grounds is a much higher standard than the test for reasonable suspicion described in Olazo. [34] On the facts of the case before this court, any doubt about reasonable suspicion disappeared when the initial investigative stepsin that initial phone call confirmed the fact that the accused was prepared to sell drugs to the undercover officer.

In circumstances wherepolice proceed with reasonable suspicion to conduct an undercover investigation, there is no entrapment. [35] The accused has failed to prove entrapment on the balance of probabilities in this case or at all and the application of theaccused for relief, based on entrapment, is dismissed. (RULING CONCLUDED)