R. v. Bolender Date:, 2014 BCPC 194

Citation: R. v. Bolender Date: 20140829 2014 BCPC 0194 File No: 195466-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM JAMES BOLENDER RULING OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: A. Ip Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey , B.C.

Dates of Hearing: April 9, July 31, August 1, 2014 Date of Judgment: August 29, 2014 [ 1 ] William James Bolender has pled guilty on Information 195466-1 that on September 20, 2012, he trafficked in a controlled substance, cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act and on the same date in the same circumstances that he unlawfully possessed cocaine and heroin for the purpose of trafficking contrary to section 5(2) of the same Act . [ 2 ] He asserts he was entrapped by police investigators. He seeks a judicial stay of proceedings.

During the hearing to address this issue, I heard evidence from Sgt. Monique Desrosiers, Constable John Murray and Constable Brent Huff, all members of the Surrey RCMP drug

section and involved in the investigation. Admissions were also filed. [ 3 ] About quarterly each year, the Surrey Drug

Section follows up on information it has accumulated regarding suspected dial-a- dope drug lines in the area. One source of information for investigators is through tips left on the telephone tip line that the police maintained. Members of the public can call and leave information anonymously if they choose. [ 4 ] On July 28, 2012 at 3:01 p.m. a caller left information on the tip line alerting police that number 604-313-5220 was an active drug distribution line belonging to “Deb.” At 7:10 p.m. Sgt. Desrosiers returned the call and spoke to a male complainant. He informed Sgt.

Desrosiers that his sister and her boyfriend had drug addictions. He was paying his sister’s cell phone bill for her. He noted that in a 30-day period there were 947 calls on her bill, many of those calls to number 604-313-5220. He confronted his sister. She confirmed that number was her drug dealer. The caller was willing to testify and so he was not an anonymous caller or an informant who was not prepared to have his identity disclosed. [ 5 ] Sgt. Desrosiers said she did not follow up further to determine whether this caller had provided information to police in the past.

She could not say, therefore, whether he was reliable based on past contact with police although she assessed him during their conversation to be genuinely concerned for his sister and wanted to help her. She believed him to be credible. In reaching this conclusion she relied on information he provided and the fact that he was prepared to testify. She also referred in her evidence to her extensive police experience and her personal family history. [ 6 ] Sgt. Desrosiers did not do any other background checks respecting the caller nor did she arrange to see the phone bill or to interview the sister. [ 7 ] Sgt.

Desrosiers opened the file and entered the information she had been provided. That file information was marshaled with other drug line tip information for handling during the next quarterly operation against suspected dial-a-dope lines which took place in September 2012. [ 8 ] The next step in these investigations is for a drug

section investigator to call the number to determine if it is still an active telephone number. Constable Murray made a call to the number on September 6, 2012 at 2:17 p.m. The phone rang about five times. A male said “hello.” Constable Murray then hung up. No conversation took place. He was not a trained undercover operator and so his instructions, confirmed by Sgt.

Desrosiers, were not to engage in any conversation. [ 9 ] Constable Murray then searched the police database called Prime to see if any relevant information was associated to that number and found none. [ 10 ] Constable Murray then created a document referred to as a “Swan sheet” which set out the information gathered and steps taken by Sgt. Desrosiers and himself in respect to the telephone number. It is referred to as a “Swan sheet” because it is intended to address issues respecting entrapment in undercover operations identified by the British Columbia Court of Appeal in R. v. Swan 2009 (BCCA) 142.

That document is Exhibit 1. There is an inaccuracy in the information set out in the Swan sheet which was brought out in cross- examination. In her direct evidence and on the Swan sheet Sgt. Desrosiers states 947 calls were made to the telephone number in question over a 30-day period. In fact as Sgt. Desrosiers clarified in cross-examination, the caller told her that many but not all of the 947 calls were to that line. The precise number of calls to that line was not established by Sgt. Desrosiers. [ 11 ] On September 20, 2012, Sgt.

Desrosiers directed Constable Huff, a trained undercover operator, to call the line to try to make a drug purchase. Sgt. Desrosiers’ evidence is that she had formed a reasonable suspicion that this was an active dial-a-dope line. [ 12 ] Constable Huff reviewed the Swan sheet. He understood police must be acting on a reasonable suspicion before inviting a person to sell them drugs. [ 13 ] At 9:28 a.m. he called the number. A male answered. They exchanged greetings. Constable Hoff asked the male if he was around and said he was looking for a “40.” The male asked who he was. Constable Huff said his name was Brent.

He added “I’m guessing you’re not the ‘Deb’ I’m looking for,” referring to the name the complainant provided to Sgt. Desrosiers as being related to the drug line. The male said his name was Peter Parker. The male asked Constable Huff where he was and if he was mobile. Constable Huff said that he was not, had just gotten off work and was waiting for the bus at the Chevron at 152 nd and 72 nd Avenue. The male said to sit tight, he was at 152 and would call him. The call ended. [ 14 ] At 9:48 a.m. Constable Huff received a call from the suspect phone number.

He answered saying “Peter Parker.” The male replied “Brent, where are you?” Constable Huff said that he was at the Chevron at 152 nd and 72 nd Avenue. The male said he just went by and thought he would be waiting. Huff said he was sitting on the barricade on the north side of the parking lot. The male said he didn’t know Huff would be taking a nap, he said he would be right there. [ 15 ] A minute later a grey colored Honda Civic hatchback drove into the lot and proceeded towards Huff sitting on the barrier. Huff moved over and the vehicle hit the barrier.

The male driver reversed saying it was a good thing this wasn’t his car. He then said

“Brent?” Constable Huff confirmed he was Brent. Huff then leaned in the driver’s window. Mr. Bolender was the driver. He askedwhat Huff was looking for. Huff said he would take a 40 if he had one. He observed an orange pill bottle with multiple rocks of what hebelieved to be cocaine. Mr. Bolender put two rocks wrapped in Saran wrap into his own palm. He asked Huff how that looked. Huffsaid it looked good. Huff turned over $40 in two $20 bills which had been given to him by Sgt. Desrosiers. He picked the two rocksfrom Bolender’s palm which were later analyzed to be cocaine and thanked him.

Huff walked away, he gave a preplanned signal andBolender was then arrested by the cover team. [16] Bolender and the vehicle were searched. Bolender had in his possession the two $20 bills provided for the transaction. In thevehicle police found 2.84 grams of crack cocaine in a prescription container between the passenger seat and the centre console, a stickynote with the number 604-313-5220 written on it and affixed to the passenger side dashboard. A sticky note with the name Mike andanother number was affixed to the rear-view mirror.

Flaps of heroin weighing .32 grams and a baggy of methamphetamine weighing .17grams were found in the driver’s side door pocket of the vehicle. [17] The defence says investigators in this case did not develop sufficient information such that a reasonable suspicion could beformed that Mr. Bolender was already engaged in criminal activity before officers gave him the opportunity to commit the offence. Thedefence refers to R. v. Swan, supra. The Court of Appeal in that case referenced the following passages from the Supreme Court ofCanada decision in R. v. Mack (1988), (SCC), 2 SCR 903 and R. v.

Barnes, [1991] 1 SCR 499 in giving definition to thedefense of entrapment. The following is taken from Mack at paragraph 15. The defence is available when: (

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

b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunityand induce the commission of an offence… The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that thepolice will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the policepower to simply go out and test the virtue of people on a random basis. [18] In Barnes at paragraphs 23 and 24 the Supreme Court of Canada stated: The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual whoarouses a suspicion that he or she is already engaged in the particular criminal activity.

An exception to this rule arises when the policeundertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such alocation is defined with sufficient precision, the police may present any person associated with the area with the opportunity to committhe 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 withouta 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. [19] Reasonable suspicion is something more than a base or mere or unsupported suspicion and something less than proof beyond areasonable doubt. (R. v. Cahill (1992), (BC CA), 12 BCAC 247 at paragraph 32.) [20] The defence says Sgt. Desrosiers may have developed a subjective suspicion but it was not objectively supportable.

In order forher suspicion to be elevated to a reasonable level, the defence says, investigators should have followed up on the information providedby the informer and confirmed the state of the phone bill and/or spoken to the caller’s sister to confirm the information providedrespecting the suspect phone line. Inquiries to determine if the caller had provided reliable information in the past may have assisted inthis analysis.

The defence says the uncertain state of the information provided is telling when one considers that the police are unable tosay how many of the 947 calls were to the suspect line because no follow-up was done. [21] The defence says Constable Murray’s call about six weeks later adds nothing to the analysis beyond the knowledge that thetelephone number itself was still active.

It does not advance a suspicion that the line is a drug line when no conversation occurs and thisis particularly so when the call is made midday rather than in the early morning hours where some conclusions could be drawn based onthe usual 24-hour availability of dial-a-dope services. [22] The defence says Constable Huff was no longer in an investigative mode at the point he called the suspect line and set up ameeting on the morning of September 20, 2012. The defence points out that Constable Huff was under the direction from Sgt. Desrosiersto buy drugs.

At that point, with an inadequate basis for a reasonably based suspicion, Mr. Bolender was invited to commit the offenceand so was entrapped. [23] The defence says the circumstances are similar to those in Swan. In that case, similar to the present case, investigators severaltimes a year compile a list of suspected dial-a-dope lines from information gathered from various sources including a tip line. Officers

then call the numbers in an attempt to make a drug deal which would lead to an arrest. In Swan the undercover investigator called the number, exchanged names with the male who answered and then asked if he was working which could be interpreted as a reference to drug trafficking but has other meanings or

interpretations as well. The male said that he was. The Constable asked if he could meet in 20 minutes, that he needed “40 up” referencing $40 worth of cocaine in trafficking lingo. A meeting was arranged. The accused attended the meeting and provided cocaine for $40 and was arrested. [ 24 ] The Court of Appeal concluded the trial judge erred in finding that the circumstances did not give rise to entrapment. The court found the trial judge relied on subsequent conduct to conclude the expression “are you working” should be interpreted as a reference to drug trafficking.

Further, the trial judge referenced the serious nature of the offence and concluded this was a bona fide investigation as contemplated in Mack . The Court of Appeal found that the police operated on a mere suspicion when making the contact telephone call. The court concluded that this call like many others in the circumstances was simply a cold call where everything was unknown ( Swan paragraph 25). The court noted that the undercover operator in Swan had only the barest of information from an anonymous source.

The reasonably based suspicion must be present when the opportunity to commit the offence is offered, not acquired after that point. If the opportunity is offered before the point that a reasonable suspicion is formed, the police are engaged in random virtue testing and entrapment will follow. Reasonable suspicion must pre-exist the solicitation ( Swan at paragraph 29). [ 25 ] I disagree with the argument that the circumstances in Swan are similar to the present case.

At the point Constable Huff called the suspect number, police were aware that the information respecting the number was from a source prepared to testify and who had provided details, albeit of a hearsay nature, about a name associated to that number, a specific contact of his who utilized the number on many occasions relative to over 900 calls over 30 days to source drugs for herself and her boyfriend. Sgt.

Desrosiers had spoken to the potential witness and obtained the information directly and so had the opportunity, using her extensive policing and personal experience, to assess him, albeit over the phone, as credible. The phone number was still in service. [ 26 ] Thus, I conclude the call Constable Huff made was not the kind of cold call with nothing other than an anonymous tip about a phone number as was the case in Swan .

Substantially more information was available through a personal contact with the caller who was prepared to give evidence at a trial if required. [ 27 ] The Court of Appeal in Swan contemplated the kinds of steps taken by police in the type of circumstances before me as means by which mere suspicion can be elevated to a reasonable basis. At paragraph 37 the court stated: In dial-a-dope investigations, (as in many criminal investigations) actively seeking and pursuing more substantiated tips would, in many cases, require more time and effort. That would not always be the case, however, since Det. Cst.

Cratchley testified that many tips he received (he mentioned Crimestoppers tips as an example) already contain significant detail. Further, it is reasonable to infer that the result of increased efforts would be to elevate mere suspicion to reasonable suspicion in many more cases before the initiating call is made. Thus, reliance on cold calls would be reduced, as would the incidence of intrusion on privacy rights of members of the public where there was no reasonable suspicion they were connected to criminal activity.

Rather than encouraging the police to pursue, document and forward information relating to their sources to the dial-a-dope project, the method of investigation described by Det. Cst. Cratchley actually discourages this type of initiative by treating it as irrelevant, or as mere surplussage. [ 28 ] I take these comments to contemplate a situation where for example a tip, perhaps even anonymous, provides information which will, without more, provide sufficient basis for a reasonable suspicion on which the police can act. Here the efforts of Sgt.

Desrosiers in connecting directly with the caller, in my view, goes beyond or is at least in line with the thinking of the Court of Appeal in Swan as to what may reasonably elevate a base suspicion. [ 29 ] The circumstances before the British Columbia Court of Appeal in R. v. Olazo 2012 BCCA 59 are similar to the present case. In Olazo , an officer received information about a dial-a-dope line from a person he stopped for a driving infraction. The information was offered in exchange for the officer declining to issue a ticket.

The information included the number, two first names of principals, basic vehicle descriptions and that the line was a 24-hour service. The next day the Constable called the number to see if she could arrange a drug purchase. A male answered. The officer asked if they could meet. She asked if they could sell her drugs using street lingo. They agreed on “two 40s” for $70 and a meeting was arranged. This first meeting did not occur. A second officer set up another meeting where arrests were made.

The trial court, relying on Swan , found no reasonably based suspicion was present when the first call arranging the first meeting was made and that was the point at which the opportunity was offered. The Court of Appeal reversed that decision.

After referring to Mack , Barnes and Swan , the court pointed out that entrapment law distinguishes between investigation and opportunity. “Steps taken to investigate the reliability of the tip, falling short of providing an opportunity to commit an offence, will not give rise to the defence.” ( Olazo at paragraph 19 .) The police activity must be scrutinized at each stage to assess when the process moves from investigation to the offer of an opportunity to commit the offence. [ 30 ] The court in Olazo pointed out that the narrower

interpretation of opportunity endorsed by the Supreme Court of Canada does not assume the call by an undercover officer pretending to be a buyer necessarily meets that narrow definition. The court relied on the Ontario Court of Appeal decision in R. v. Imoro 2010 ONCA 122 , affirmed in the Supreme Court of Canada, 2010 SCC 50 , to point out that it is only when the parties get down to the actual deal that the opportunity arises. ( Olazo at paragraphs 20 and 21 ). [ 31 ] Imoro involved an anonymous tip, thus less compelling than the initial tip information in the present case.

The Ontario Court of Appeal said inquiries about buying drugs in that initial call were simply steps in the investigation. The opportunity did not occur until the parties met to carry through the transaction. ( Imoro at paragraphs 15 and 16.) [ 32 ] The defence drew from Sgt. Desrosiers on cross-examination that when she directed Constable Huff to call to make a deal because she claimed to have a reasonable suspicion at that point, which the defence says was not supportable, the Sgt. was no longer investigating, she was directing Constable Huff to try to make a deal and therefore entrapment occurred.

[ 33 ] I disagree with this proposition. The following from paragraphs 27 through 29 in Olazo address the specific issue in the present case: Mr. Fowler distinguishes Imoro on the fact that the suspect was the first to speak and the officer’s first question, “Can you hook me up?” was less pointed than Constable Long’s approach. He submits that unlike Imoro the police in this case set out to make a drug deal; their motive in making the call was not to investigate the reliability of the tip but to conclude a transaction. With respect, I am unable to accept these submissions.

I fail to see any significant difference on the facts. Moreover, the motive of the police in placing the call is not relevant. The authorities make it clear that reasonable suspicion is an objective standard. For the purposes of entrapment, the pertinent question is whether, objectively speaking, the police had a reasonable suspicion that the suspect was engaged in the drug trade when they presented an opportunity to traffic. Swan is a different case. There, the police had virtually nothing to go on before they made their cold calls.

In the present case, although I am not prepared to differ with the trial judge’s finding that the tip itself was not enough to arouse reasonable suspicion, the tip was sufficiently detailed and specific to justify placing a call as the next step in the investigation. Swan was about the randomness of a police investigation, a feature absent in the present matter. [ 34 ] Although in my view there is a strong argument to say that reasonable suspicion existed based on the tip contents and Sgt.

Desrosiers’ follow-up, Constable Huff’s call and the conversation which flowed up to the point the parties met at the window of Mr. Bolender’s vehicle were steps furthering the investigation. That investigation had not progressed to the offer of an opportunity. By the point the parties were face to face, the investigation had certainly generated grounds for reasonable suspicion which justified the opportunity the officer then presented to Mr. Bolender. [ 35 ] The analysis required in this case is similar to the analysis undertaken by Judge Ball in R. v. Cardero 2012 BCPC 280 .

In similar circumstances he found entrapment was not established. [ 36 ] I have concluded Mr. Bolender has failed to establish on the balance of probabilities that he was entrapped. I decline to judicially stay these proceedings. The Honourable Judge M.B. Hicks Provincial Court of British Columbia