R. v. WEINER Date:, 2013 BCPC 367

Citation: R. v. WEINER Date: 20130308 2013 BCPC 0367 File No: 187906-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALEX WEINER RULING ON APPLICATION OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: A. Turton Counsel for the Defendant: K. Johnston Place of Hearing: Surrey , B.C. Date of Hearing: March 8, 2013

Date of Judgment: March 8, 2013 [ 1 ] THE COURT : The accused has pled guilty to trafficking in cocaine. The issue before the court this afternoon is whether or not the police conduct in this investigation amounts to entrapment and if it does, the accused has argued that he is entitled to a judicial stay of proceedings. [ 2 ] The facts in the case at bar are that Cst. McKinnell, a youthful-looking male officer, although he has been a police officer since 2001 and has been involved in well over 100 drug investigations, he and his female partner, Cst.

Jill Wong, were posing as a couple and they were working in plainclothes as undercover operators in the area of the Tsawwassen Town Centre Mall. They had received unverified information that drug trafficking was going on in that area, particularly in the vicinity of a video store named Videoland. [ 3 ] At around 5:00 p.m. the accused approached Cst. McKinnell and asked if he had any smokes. Apparently the accused was offering to buy a cigarette, and the officer answered, "No, we don't have any smokes but we're looking for rock," referring to crack cocaine.

He was looking to buy three packages for $50, although they would normally sell for $60, and as the officer has pointed out, if you say three for $60 you are giving away to people in the drug selling community that you are police officers. They indicated to the accused that they were in a hurry, they needed to catch a ferry, and the accused willingly, from what I can gather, said he had to go to his guy to produce the product. He offered then to give the officers a ride to his guy, but as per police policy they were not going to get into a car driven by somebody else.

And they did later meet with the accused, who engaged in a hand-to-hand transaction and as is somewhat common, as described by the undercover operator, the accused wanted to share a small portion of the purchase for his own consumption. [ 4 ] Curiously, when he left the scene the officer wanted some form of collateral and the accused not only gave him his driver's licence but also gave him his cell phone while he went away. And as the officer acknowledged, clearly the accused is not a sophisticated drug dealer as further evidenced by the fact that he offered to give them a ride to the ferry.

At this point the transaction had been completed. [ 5 ] But in any event, the defence has characterized the officers' conduct as entrapment and has relied on two cases, R. v. Barnes , a 1991 decision of the Supreme Court of Canada, and R. v. Mack , a 1988 decision of the Court of Appeal. In the Barnes case, a case that originated out of the Granville Mall in Vancouver, the police were conducting a "buy-and-bust" operation in that area, which was considered to have a drug trafficking problem.

The undercover police were attempting to buy illicit drugs from individuals who appeared in the officers' opinion to be inclined to sell drugs. Mr. Barnes, who in the words of a police officer, was "dressed scruffy", was in the Granville Mall area when approached on a hunch by an undercover officer. The officer asked him if he had any weed. Despite a negative answer, the officer asked the question again and persisted until the appellant agreed to sell a small amount of marihuana. He was arrested shortly thereafter.

The entrapment defence was raised and the trial judge found, however, that the police officer had engaged in what he described as "random virtue testing" and granted a judicial stay for entrapment. This decision was ultimately overturned by the Court of Appeal and confirmed by the Supreme Court of Canada. [ 6 ] The Supreme Court of Canada stated at paragraph 18 that: ... the police may present the opportunity to commit a particular crime to persons who are associated with a location where it is reasonably suspected that criminal activity is taking place.

The court goes on to say: 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 clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion. They then went on to quote a statistical analysis of that area, which reflected a great deal of drug trafficking.

Prior to that the court stated that: The police department in this case focused its investigation on an area of Vancouver, a

section of Granville Street covering approximately six city blocks, where it was reasonably suspected that drug-related crimes were occurring. In my opinion, they would not have been able to deal with the problem effectively had they restricted the investigation to a smaller area. Although there were particular areas within the Granville Mall where drug trafficking was especially serious, it is true that trafficking occurred at locations scattered generally throughout the Mall. It is also true that traffickers did not operate in a single place.

It would be unrealistic for the police to focus their investigation on one specific part of the Mall given the tendency of traffickers to modify their techniques in response to police investigations. [ 7 ] The Crown has argued that, as noted by the court: ... the size of the area itself may indicate that the investigation is not bona fide . This will be particularly so (sic) when there are grounds for believing that the criminal activity being investigated is concentrated in part of a larger area targeted by the police.

In this case, however, for the reasons discussed above, it was reasonable for the Vancouver Police Department to focus its investigation on the Granville Mall. The accused argues that although the undercover officer was involved in a bona fide inquiry, she nevertheless engaged in random virtue- testing since she approached the accused without a reasonable suspicion that he was likely to commit a drug-related offence. She approached the accused simply because he was walking near Granville Street. [ 8 ] "The basic rule articulated in Mack is", the court continues:

... is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. Where such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry.

Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that: (

a) the person is already engaged in the particular criminal activity, or (

b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. [ 9 ] I find in this case that the accused, contrary to the Barnes case, was the one who approached the police officers. Now, clearly he did not initially approach them offering to sell narcotics, but after the officer pointed out or replied that he did not have any cigarettes to sell he simply asked the accused if he knew where he could purchase some cocaine, and the accused readily agreed to assist him with that.

This behaviour on the part of the police officer cannot, in my view, be characterized as persistent importuning or inveigling upon the accused. The accused seemed to have a pre-existing willingness to engage in this type of activity and the police were investigating drug trafficking in an area where they had information such activities were occurring. This, in my view, falls far short of entrapment in the case at bar. The officer was not engaged in random virtue-testing in this case. Accordingly, I dismiss the application for a stay of proceedings. (RULING CONCLUDED)