R. v. Belcourt, 2021 BCPC 348

Citation: R. v. Belcourt 2021 BCPC 348 Date: 20210914 File No: 236964-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL WAYNE BELCOURT BAN ON PUBLICATION -

SECTION 486.5(9) and 486.5(1) CCC ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. WEATHERLY Counsel for the Crown: M. Aziz Counsel for the Defendant: R. Zakirova Place of Hearing: Surrey , B.C. Dates of Hearing: May 20, 21; June 21; September 13, 14, 2021 Date of Judgment: September 14, 2021

[ 1 ] THE COURT : On Information 236964-1, Michael Wayne Belcourt was originally charged on Count Number 1 that on or about January 23rd, 2019, at the City of Surrey, Province of British Columbia, he did unlawfully traffic in a controlled substance, to wit: heroin/fentanyl/carfentanil, contrary to s. 5(1) of the Controlled Drugs and Substances Act .

On Count 2 he was charged, same date, same location, that he possessed a controlled substance, to wit: heroin/fentanyl/carfentanil for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; and on Count 3, same date, same location, he did possess a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] A voir dire was conducted with respect to applications pertaining to alleged breaches of Mr. Belcourt, s. 8, 9 and 10(

b) Charter of Rights . Those applications were dismissed by the court. [ 3 ] By consent, except for the hearsay evidence, the evidence on the voir dire became evidence on the trial proper. There was a Statement of Admissions and Agreed Statement of Facts that were marked as exhibits by consent in the trial proper. That having been done, Ms. Zakirova invited the court to find Mr. Belcourt guilty on Count number 1, which I did, and Mr. Aziz, on behalf of the Crown, entered a stay of proceedings on Counts 2 and 3 of the Information. [ 4 ] Mr. Belcourt then made an entrapment application.

By agreement, the evidence on the trial became evidence on the entrapment application. It is not in dispute that the onus is on the applicant to establish entrapment on the balance of probabilities. The Crown then called two additional witnesses with respect to the entrapment application, which was concluded yesterday. I heard submissions this morning, and I am now providing a decision on the entrapment application. Of course, I do not have a written decision but had I reserved, the decision would still be the same but, hopefully, it would sound better. [ 5 ] As I said, the Crown called two additional witnesses.

The first was [omitted for publication]. He testified that he is experienced in drug investigations at both the municipal and federal level. In past drug investigations, he has had roles as the primary investigator, the file coordinator, the affiant, a surveillance team member, and an exhibits officer.

He estimates that he has been the undercover operator in 50 to 100 investigations and that he has dealt with thousands of drug-dependent individuals. [ 6 ] He said in the January 23rd, 2019 investigation, his duties were to assist the Surrey drug unit in obtaining phone numbers for drug lines and purchasing drugs in an undercover capacity. He said that in the morning of January 23rd, 2019 he was deployed in the area of King George Boulevard and 82nd Avenue but he was unsuccessful at that location.

In cross-examination he agreed that he did get a phone number ending in 5611 while at the income assistance office, and he called that number and attempted to buy drugs from the person, but the person declined to sell any drugs to him. [ 7 ] He said at approximately 12:30, after several unsuccessful attempts, he was directed by his cover person to approach a female in the area of 84th Avenue and King George Boulevard. He said the female was by herself and she was dishevelled and had the appearance of a drug user. He said that he approached her and asked her if she knew where he could get "down".

He said that she told him she could take him to a house which he understood her to mean where he could get down. He said down is street jargon for opiates such as heroin, fentanyl, oxycontin, dilaudids and drugs of those types. He said that he asked her if she knew a phone number where he could get down and she provided him from memory the number XXX-XXX-3444, which I will refer to as the 3444 number. [ 8 ] He said at that point he left and at 13:06 he was directed by his cover person, Cpl. Binning, to call the phone number that she had given him and to try and make a purchase.

He said that he had not received any other information with respect to this phone number before calling the number. He said that he called it and it went to voicemail and he left a message saying that he was looking for "down". [ 9 ] He said approximately 10 minutes later he was directed to call the number again and he did so and a male answered. He said he asked the male if he was working; the male person said yes, he was.

He said that he was not asked by the male person what he meant by "working". [omitted for publication] said that in asking the male person if he was working what he meant was, "if they were actively selling drugs, if this was this part, of a drug line". In cross-examination he agreed that other than asking the male person if he was working, he did not ask him anything else before asking him to sell drugs to him. [ 10 ] [Omitted for publication] said that he then asked the male person if he was "good for down". He said the male person asked him who he was.

He said that he responded, "Chris" and he said that he was looking for four points of down, and he asked the male if he could meet him at the Walmart at 88th Avenue. He said the male said that he could meet him in a half an hour.

He said that he asked the male what he was driving and the male said an Aerostar, gold. [ 11 ] [Omitted for publication] testified that his undercover person then directed him to change the location of the meet and that he then called back the same phone number and said that he would be at 88th Avenue and King George Boulevard. [omitted for publication] said that about a half an hour later he got a phone call from the XXX-XXX-3052 number and the male said that he was there. [omitted for publication] said he told the male that he had gone home because he thought he was not coming and that he would need 10 minutes. [Omitted for publication] said that he updated his cover person and he was directed by his cover person to make a direct purchase.

He said that he called the 3052 number back and the male said to walk up the stairs in the complex and he would be in a van. [ 12 ] [Omitted for publication] said that he walked up the stairs towards Tulsy Crescent East and he saw a gold Ford Aerostar van. He said that he approached the van and saw a male in the driver's seat. [Omitted for publication] said that he opened the front passenger door and he saw that the seat was pushed very close towards the front.

He said that he told the driver that his back hurt and that he could not sit there and he asked to sit in the back and the driver said, "Okay." [Omitted for publication] said that he opened the sliding passenger door and got in the back seat. He said that he had a brief conversation with the driver about being late and the driver talked about traffic and a car accident. He said that the driver asked what he wanted and he asked the driver how much four points of down was. He said the driver said $70. [Omitted for publication] said that he asked how much he could get for $100 and the driver said 7 points.

He said he asked the driver if he could get eight points for $100 and the driver said normally they only get six points for $100. [ 13 ] I pause to note that it is Mr. Belcourt who was subsequently arrested and charged. There is no question he was the driver.

[14] [Omitted for publication] said he gave the driver two $50 bills and the driver gave him a crumpled up piece of white tissue.[Omitted for publication] said that he told the driver that he was going to check what was in the tissue and that the driver was fine withthat.

He said that he opened up the tissue and there were seven baggies that were tied off with blue powder inside. [Omitted forpublication] said that he had a general conversation with the driver regarding his back injury and the driver told him he had an injury tohis shoulder. [Omitted for publication] said at that point he departed the vehicle. [15] [Omitted for publication] testified that his purpose for approaching the unidentified female was to obtain a phone number for adrug line or to purchase drugs.

He said that his observations of her were significant because, based on her appearance and mannerism, hebelieved she was a drug user. He said the phone number given to him was significant because first, he asked if she knew where he couldget down and she offered to take him to a house. Also, she provided him with a phone number which he believed that if he called it hecould purchase drugs, especially so given that she gave him the phone number from memory. [16] In cross-examination, he said he had no prior interaction with the unidentified female that he could recall.

He agreed that he didnot ask her her name and nor did he ask her the name of the person whose phone number she had given him. He said that he did not askhow she knew the phone number that she had given him. He agreed that he did not know if the unidentified female had a criminal record.That concluded his evidence. [17] The second witness called was Cpl. Harj Binning. Cpl. Binning is an RCMP officer with approximately 17 years' service;approximately 11 of those years are in drug work, including dial-a-dope cases.

In past drug investigations he has had roles as theundercover operator, the source handler, the cover person, obtaining warrants, and as primary investigator. [18] He said that on January 23rd, 2019, his role was that of cover person which he described as providing the logistics for the coveroperator. He said that their objective was to do pro-active policing and they were trying to make drug purchases, and trying to obtainphone numbers for dial-a-dope lines.

He said that they were targeting certain areas, including the area of 84th Avenue and King GeorgeBoulevard as there is a "crack shack" in that area in which people were going into it and taking drugs in or out of it, and they werepurchasing drugs there.

He said that he directed [omitted for publication] to approach a female on the street in the vicinity of 84thAvenue and King George Boulevard, that was in the area of the crack shack, to try and make a purchase or to get the dial-a-dopenumber. [19] He said that [omitted for publication] got the 3444 number but he did not recall what other information [omitted for publication]may have told him about the unidentified female.

He said that it was sufficient for him that the unkempt female located near the crackshack had provided a phone number where she said drugs could be purchased. [20] He said that he directed [omitted for publication] to call the phone number to try and make a drug purchase. He said he knewthat initially [omitted for publication] call went to voicemail but eventually [omitted for publication] got through and he made a drugpurchase. Cpl.

Binning said that he did not make any inquiries of the phone number and that they did not have any other informationabout the phone number before directing [omitted for publication] to make the call. He agreed that he could have made inquiries withrespect to the phone number but he said he was too busy with other things and that the phone numbers used are often for dialer phonesand no information comes up on them. He said he did not know if the unknown female had a criminal record.

That concluded hisevidence and the evidence called on the application. [21] I found [omitted for publication] and Binning to be credible witnesses. [22] I turn now to the submissions of counsel. [23] Both counsel rely on the decision of R v. Ahmad, 2020 SCC 11 , 2020 SCJ No. 11. [24] I turn to the submissions of Ms. Zakirova on behalf of Mr. Belcourt. [25] Ms. Zakirova also relies on a decision of R. v. Hill, 2021 ONCJ 280. Ms. Zakirova says that the issue is did Cpl. Binning havereasonable suspicion before directing [omitted for publication] to make the calls. She said that Cpl.

Binning relies on two factors: (1) thearea where the unidentified female was, was frequented by drug dealers; and (2) that the undercover operator got a phone number for asuspected drug line. She said the police did not seek to verify any of the information they received and that they had no reasonablesuspicion before the calls were made to the 3444 number. [26] She said that the court should then look at the exact words that were exchanged in the phone calls that [omitted for publication]called and asked, "Are you working?" and the response was, "Yes".

She says there was then an opportunity provided to buy drugs andthat there was still no reasonable suspicion. [27] She says the Supreme Court tells us that we have to look at all of the surrounding circumstances. She referenced the court to theAhmad case and said in that case when the phone call was made to Mr. Williams he corroborated his name, but that alone was found tobe insufficient to verify the illegality of the tip. She says, in this case, the court should find that the same that is, Mr. Belcourt saying heis working, is insufficient also to ground reasonable suspicion. [28] She said in R. v.

Henry-Osbourne, 2021 ONCA 561, that there was more detail on the tip than in this case, as in the first phonecall, the name of the accused and the drop name was confirmed, and there was also some subsequent back and forth between the parties,before the accused eventually asked the officer what he needed. [29] She said in the Hill decision relied on by her friend, there is significantly more information provided and the source was deemedto be pretty reliable, yet the court still found it to be a close call. [30] She says in the case at bar that the source and the phone number are not credible and that there is no reasonable suspicion prior tothe calls and nothing on the content of the call that establish reasonable suspicion before the offer to commit a crime was made by thepolice, and the court should find entrapment and stay the charge.

[31] Mr. Aziz, on behalf of the Crown, in addition to relying on Ahmad, referred the court to other cases; including Henry-Osbourne,R. v. Gibbs, 2021 BCPC 26; and R. v. Bank, 2021 ABCA 223. [32] Mr. Aziz reviewed the evidence in

summary fashion. He said [omitted for publication] is an experienced drug officer. Heapproached the unidentified female that looked dishevelled and she looked to be a drug user. She said she could take him to a housewhere he could buy down and then provided the 3444 number. The officer left a message on the number and then called back and asked,"Are you working?" The male then answered, confirmed that he was. Mr.

Aziz does not take the position that there was reasonablesuspicion existing prior to the phone call but he says after this call was made and he confirms that he is working that the court shouldfind there was reasonable suspicion and then the offer was subsequently made after confirmation that he was working and, therefore, theoffer is not entrapment. [33] He says with respect to Cpl. Binning's evidence he, too, is an experienced drug officer and he directed [omitted for publication] tothe area of 84th Avenue and King George Boulevard because it is a known drug area; there is a crack shack nearby.

It was close to thecrack shack that this unidentified female drug user was found and she provided the information with respect to the phone number. [34] He referred briefly to various passages of the decisions he provided for the court's assistance. I have looked at all of those casesthat counsel have referred me to. As noted by counsel, the leading case is the Ahmad decision -- R. v. Williams indexed as R. v. Ahmad,which clarified how the entrapment framework in R. v. Mack, (SCC), 1988 2 SCR 903 applies in dial-a-dope cases. [35] The Ahmad decision set out a number of principles applicable to the case at bar.

I will refer to them at this juncture. …police cannot offer a person who answers a cell phone the opportunity to commit an offence without having formed reasonablesuspicion that the person using that phone, or that phone number, is engaged in criminal activity…A bare tip from an unverified sourcethat someone is dealing drugs from a phone number cannot ground reasonable suspicion. Paragraph 4.

While the reasonable suspicion standard requires only the possibility, rather than probability, of criminal activity (Chehil, at para. 27), itmust also be remembered that it provides police officers with justification to engage in otherwise impermissible, intrusive conduct suchas searches and detentions. It is therefore subject to "rigorous," "independent" and "exacting" judicial scrutiny (Chehil, at paras. 3 and26). The suspicion must be focused, precise, reasonable, and based in "objective facts that stand up to independent scrutiny" (MacKenzie,at para. 74).

Ahmad at paragraph 46: Although innocent explanations and exculpatory information remain relevant to an assessment of reasonable suspicion, the police are notrequired to undertake further investigation to rule out those explanations (Chehil, at paras. 33-34). Nevertheless, the facts must indicatethe possibility of criminal behaviour: characteristics that apply broadly to innocent people are not markers of criminal activity (Chehil, atpara.35). Mere hunches and intuition will not suffice (Barnes, at p. 460).

However, an officer’s training or experience can makeotherwise equivocal information probative of the presence of criminal activity (Chehil, at para. 47). All found in Ahmad at paragraph 47. Unless the police had formed reasonable suspicion before a phone call was made, reviewing the words spoken during the call isunavoidable. Reviewing conversations between undercover officers and their targets in the dial-a-dope context is the inevitableconsequence of accepting that the police must have reasonable suspicion before offering an opportunity to commit an offence.

While weagree that the conversation must be considered contextually, that is in order to determine whether the undercover officer made a specificrequest to purchase drugs, and whether reasonable suspicion existed before the opportunity to commit a crime was offered. Paragraph 59. …In a conversation, an opportunity will be established when an affirmative response to the question posed by the officer could satisfythe material elements of an offence.

In the dial-a-dope context, in which the initial interaction between the police and target occursentirely over the phone, the exercise centres on determining whether words spoken by the police officer constitute an opportunity tocommit drug trafficking.

Paragraph 63. …In the particular context of drug trafficking, we would adopt the conclusion reached by Trotter J. at para. 27 of the Williams staydecision: (2010 ONSC 1698) an opportunity to commit an offence is offered when the officer says something to which the accused cancommit an offence by simply answering “yes.” Paragraph 64. …An opportunity has been provided only when the terms of the deal have narrowed to the point that the request is for a specific type ofdrug and, therefore, the target can commit an offence by simply agreeing to provide what the officer has requested.

In some cases, arequest to purchase a specific quantity of drugs will suffice. For example, in Williams’ case, where the police were working from a tipthat the individual was a cocaine dealer, a request for a particular quantity of that drug (i.e., “I need 80”) constituted an opportunity (staydecision, at para. 9).

Indeed, courts have consistently recognized that a request to purchase a specific type of drug during theconversation will amount to an opportunity to commit a crime… [36] I am just going to leave out the cites at this point, but I will refer to some of those statements. [37] Statements such as "I need 40", "I need six greens", "I want a 60-piece", "four for a hundred", "a ball", and "half a B", have all

been found to present opportunities. In conclusion, given the principles governing our entrapment doctrine, police investigating a dial-a-dope operation by calling a phone number they suspect is being used to traffic illegal drugs must form reasonable suspicion before offering an opportunity to traffic drugs. If they cannot form reasonable suspicion before making the call, they must in the course of their conversation form reasonable suspicion before making the offer.

A determination of whether this requirement is satisfied must be the product of strict judicial scrutiny, taking into account the constellation of factors that indicate involvement in drug trafficking. And, if it is determined that the offer was presented before reasonable suspicion was formed, entrapment is established and the proceedings must be stayed . Paragraph 69. [ 38 ] I turn now to the circumstances known prior to when the calls were made. [ 39 ] On January 23rd, 2019, Cpl.

Binning as the cover officer and [omitted for publication] as the undercover officer, both experienced drug investigators at the time, were part of a team of police officers conducting pro-active policing by trying to make drug purchases and/or obtain phone numbers for dial-a-dope phone lines. In that regard, they were targeting areas in Surrey where drug trafficking was known to occur.

One such area was the area of 84th Avenue and King George Boulevard as there was a "crack shack" in the area that was known to the police to be a residence where people took drugs in or out and who were purchasing drugs there. [ 40 ] Cpl. Binning directed [omitted for publication] to approach a female who was on the street in the vicinity of 84th Avenue and King George Boulevard, i.e., the area of the crack shack, to try and make a purchase or to get a dial-a-dope phone number. At approximately 12:30 he approached the unidentified female who he said was dishevelled, and appeared to be a drug user.

He asked if she knew where he could get "down". He said that she could take him to a house. He understood her to mean where he could get "down".

Again, he said "down" is street jargon for opiates such as heroin, fentanyl, oxycontin, dilaudids and drugs of those types. [ 41 ] He said that he asked her if she knew a phone where he could get "down" and she provided him with the 3444 number. [Omitted for publication] had had no prior interaction with the unidentified female that he could recall and he did not know if she had a criminal record. [Omitted for publication] did not ask her name and nor did he ask the name of the person whose phone number she had given him. [Omitted for publication] did not ask the unidentified female how she knew the phone number that she had given him. [ 42 ] The police did not make any inquiries of the phone number, nor did they have any other information about the phone number before Cpl.

Binning directed [omitted for publication] to call the 3444 number and hence make a drug purchase. [ 43 ] I turn now to the circumstances of the calls. [ 44 ] At 13:06 [omitted for publication] called the 3444 number and it went to voicemail and he left a message saying that he was "looking for down". There is no evidence that that message was heard by Mr.

Belcourt. [ 45 ] At approximately 13:10, approximately four minutes later, [omitted for publication] called the number again and a male answered. [Omitted for publication] asked the male if he was working and the male said that yes, he was. [Omitted for publication] was not asked by the male person what he meant by "working". [Omitted for publication] said that in asking the male person if he was working, what he meant was "if they were actively selling drugs, if this was this part of a drug line". [Omitted for publication] then asked the male if he was "good for down".

Other than asking the male person if he was working, [Omitted for publication] did not ask him anything else before asking him to sell drugs to him. [ 46 ] The male person asked [omitted for publication] who he was. [Omitted for publication] responded, "Chris" and he said he was looking for four points of down and he asked the male if he could meet him at the Walmart at 88th Avenue. The male said that he could meet him in a half an hour. [Omitted for publication] asked the male what he was driving; the male said an Aerostar gold.

That ended the call and subsequently [omitted for publication] met with and purchased the drugs set out in Count 1 from the accused. [ 47 ] I turn to my ruling. [ 48 ] When the police made the first call to the 3444 number, the information they had was that an unknown person who appeared to be a drug user and was in an area where drug sales were known to the police to occur said that by phoning this phone number they could buy down. Other than the foregoing, their information was totally devoid of any other detail.

It was information from an unknown person of unknown reliability, essentially a bare tip with very minimal information from an unverified source. [ 49 ] I find that the police did not have reasonable suspicion when they placed their first and second phone calls to the 3444 number. The first call went to voicemail and [omitted for publication] left the message that he was looking for down. There is no evidence that Mr. Belcourt heard the message before the second call was made. [ 50 ] Mr.

Aziz points out that when [omitted for publication] called back, it was approximately four minutes later, and he asked the male person who answered the phone if he was working, the male person did not ask what [omitted for publication] meant by working; rather he said that he was working. Mr.

Aziz submits that this response provided the reasonable suspicion that [omitted for publication] required before [omitted for publication] then asked the male if he was "good for down". [ 51 ] The difficulty I have with that submission is that other than what [omitted for publication] said that the question about working meant to him, there is no evidence placed before the court that such a question is common jargon used in the drug trade so that the court could find that by the male saying he was working that he was acknowledging that it was a dial-a-dope line. [ 52 ] Evidence about jargon was placed before the court with respect to jargon used in a drug trade for different types of drugs but not about the meaning of the question, "Are you working?" That being the case, the question is innocuous.

After the male said that he was working, [omitted for publication] then asked if he was "good for down". I find at that point that the police presented the male person with the opportunity to commit the crime of selling drugs and I find on the totality of the circumstances that they did so without having

the necessary reasonable suspicion. [ 53 ] [Omitted for publication] said the male person asked him who he was. He said that he responded "Chris" and he said he was looking for four points of down. Again, at this point, I find that there was still no reasonable suspicion and a second opportunity to commit the crime of selling drugs is made by the police. [ 54 ] I find that Mr. Belcourt was entrapped and, as such, a stay of proceedings will be entered on the last remaining count, that is Count 1. (REASONS FOR JUDGMENT CONCLUDED)