R. v. Gibbs, 2021 BCPC 26

Citation: R. v. Gibbs 2021 BCPC 26 Date: 20210222 File No: 48892-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DOUGLAS WILLIAM GIBBS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. MCDERMICK Counsel for the Crown: A. Murray Counsel for the Defendant: C. Carleton Place of Hearing: Prince George , B.C. Dates of Hearing: January 18, 19, and 20, 2021 Date of Judgment: February 22, 2021 [ 1 ] Mr.

Gibbs is before this Court pursuant to Information 48892-1 alleging that on August 29, 2018, he did unlawfully traffic in controlled substances to wit: heroin, fentanyl and methamphetamine and that additionally on August 30, 2018, he did unlawfully traffic in methamphetamine. [ 2 ] The trial of this matter spanned three days commencing on January 18, 2021. In

summary, officers targeted the area of the 7- Eleven located at 20 th Avenue and Spruce Street in Prince George, British Columbia. Two undercover officers, Corporal Perret and Constable Bonner-Corriveau, who are not from the Prince George area, approached Mr. Gibbs and purchased drugs from him in exchange for cash on August 29 and August 30, 2018. Mr. Carleton represented throughout the proceedings that he intended to argue

entrapment. Both counsel submitted that structurally, such argument ought to be advanced only after a determination of guilt has beenmade, and it was agreed that this was the correct approach. At the conclusion of the Crown’s case, Ms. Murray for the Crown pressedthis Court to convict Mr. Gibbs of the offences at hand, and Mr. Carleton was not opposed. Mr. Gibbs was summarily convicted of allcounts on the basis of the body of evidence before this Court.

Counsel agree that the onus is on the accused to establish on a balance ofprobabilities that the conduct of the state is an abuse of process because of entrapment. Mr. Carleton, on behalf of Mr. Gibbs submitsthere was entrapment. Ms. Murray for the Crown demurs. This is the Court’s decision on that issue. [3] The law of entrapment was rigorously developed and settled pursuant to the seminal decision of R. v. Mack, (SCC), [1988] 2 SCR 903. Recently the Supreme Court of Canada has revisited this issue in R. v.

Ahmad, 2020 SCC 11 , 2020SCJ No. 11. [4] The doctrine of entrapment reflects a balancing of the competing ideologies of effective law enforcement and the right ofCanadian citizens to be free from capricious police investigation and/or state inducements, generating crimes ex nihilo, see Ahmad, paras.1-2: [1] As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve andprotect. At the same time, police require various investigative techniques to enforce the criminal law.

While giving wide latitude to policeto investigate crime in the public interest, the law also imposes constraints on certain police methods. [2] For that reason, this Court in R. v. Mack, (SCC), [1988] 2 S.C.R. 903, sanctioned, but narrowly confined, thepower of police to step beyond their normal investigative role and tempt people into committing criminal offences.

Where they do sowithout reasonable suspicion, or where they go further and induce the commission of a criminal offence, they commit entrapment.Without a requirement of reasonable suspicion, the police could target individuals at random, thereby invading people’s privacy,exposing them to temptation and generating crimes that would not otherwise have occurred.

Such conduct threatens the rule of law,undermines society’s sense of decency, justice and fair play, and amounts to an abuse of the legal process of such significance that,where it is shown to have occurred, a stay of proceedings is required. [5] Entrapment encompasses two branches, see Mack at page 959: [122] There is, therefore, entrapment when

a) the authorities provide an opportunity to persons to commit an offence without reasonablesuspicion or acting mala fides, as explained earlier, or

b) having a reasonable suspicion or acting in the course of a bona fide inquiry, theygo beyond providing an opportunity and induce the commission of an offence. As I have already mentioned, the first form of entrapmentis not likely to occur.

The police of this country are generally resorting to the type of investigatory technique of providing opportunitiesonly in relation to targeted people or locations clearly, and therefore reasonably, suspected of being involved in or associated withcriminal activity, or again are already engaged in a bona fide investigation justifying the provision of such opportunities. [6] Counsel agree that themes of inducement are not present in this case and neither party made submissions with respect to thissecond type of entrapment. Mr.

Carleton submits that it is the first branch of entrapment that applies here, to wit: that the police engagedin random virtue testing of Mr. Gibbs. [7] This first prong of entrapment is developed and summarized at paras. 19 and 20 of Ahmad: [19] To reconcile these competing imperatives, the Court imposed a safeguard against opportunity-based entrapment.

On the firstbranch in Mack, at issue in these appeals, police may present an opportunity to commit a crime only upon forming reasonable suspicionthat either: (1) a specific person is engaged in criminal activity; or (2) people are carrying out criminal activity at a specific location,sometimes referred to as a bona fide inquiry (Mack, at pp. 956 and 959; confirmed in R. v.

Barnes, (SCC), [1991] 1S.C.R. 449 (S.C.C.), at p. 463). [20] The reasons in Mack make clear that a bona fide inquiry into a location is premised upon and tethered to reasonable suspicion.An investigation is "bona fide" where the police have a reasonable suspicion over a location or area, as well as a genuine purpose ofinvestigating and repressing crime. A bona fide investigation is not a separate and freestanding way for police to entrap an individual, buta means of expressing the threshold of reasonable suspicion in a location.

The offer of an opportunity to commit a crime must always bebased upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or acombination of both. [8] Not only do counsel disagree with respect to whether there was entrapment, but they are also sharply divided as to the structureof the argument and what evidence ought to be considered when deciding whether the police had reasonable suspicion.

Both lawyersagree that a nuanced analysis of Officer Atkinson’s evidence is required as he was the lead investigator and indirectly directed the twoundercover operators to the 7-Eleven in question, asserting it was a high crime area. Mr. Carleton submits that if this Court finds thatOfficer Atkinson’s evidence does not establish reasonable suspicion that this was a high crime area, that ends the analysis and entrapmentis established. Ms. Murray disagrees, relying on para 20 of Ahmad (set out above) that reasonable suspicion can be developed withrespect to the location, the individual, or a combination of the two.

I agree with Ms. Murray that a

summary, plain reading of suchparagraph entitles the Court to consider both the location and circumstances surrounding the targeted individual. [9] Accordingly, I will start with Mr. Gibbs. First, Officer Perrett gave evidence early in cross examination that there was nothingthat drew her attention to the accused. She went on and conversely noted that she was trying to obtain evidence of trafficking in the area,emphasizing the location. Mr. Gibbs was unknown to her.

Although he was riding a bike in the area (and there was some controversysurrounding the nuances of this testimony) and he interacted with an individual that the operators came to know as “little c” who wasconnected to drug dealing, none of this was particularly noteworthy to the officer and accordingly, likewise, such observations do notfunnel into or bolster the overall grounds that this Court will consider. [10] Ms. Murray presses that this Court must also consider the language used between Officer Perrett and Mr. Gibbs in their initialconversation.

She notes and references the long line of cases culminating with Ahmad which require a nuanced parsing of suchexchanges, submitting that the parties’ initial interactions are not an offer to commit a crime but are exploratory in nature and hence

contribute to and bolster the overall grounds the investigating team had by the time the offer to commit a crime was finally made. [11] It is not controversial that police must have the requisite reasonable suspicion before an offer to commit an offence takes place(para. 59 of Ahmad), accordingly, determining when such offer occurs is an important step in the analysis. [12] Ahmad is instructive on these issues and I reproduce the analysis at some length at paras. 63-66 (relevant portions only): [63] …In a conversation, an opportunity will be established when an affirmative response to the question posed by the officer couldsatisfy the 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. [64] …In the particular context of drug trafficking, we would adopt the conclusion reached by Trotter J. at para. 27 of the Williamsstay decision: an opportunity to commit an offence is offered when the officer says something to which the accused can commit anoffence by simply answering "yes." [65] The definition of drug trafficking in the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), is broad.

It includes notonly selling, transporting and administering illegal drugs, but also making an offer to do so …The definition of "traffic" is limited toactivity "in respect of a substance included in any of Schedules I to V." A general agreement to sell "drugs" or "product" will not sufficeunless there are contextual markers that narrow what is intended to a particular drug listed in those schedules. [66] For these reasons, police can make exploratory requests of the target, including asking whether they sell drugs, without providingan opportunity to traffic in illegal drugs (see, e.g., R. v.

Ralph, 2014 ONCA 3, 313 O.A.C. 384 (Ont. C.A.), at para. 32). An opportunityhas been provided only when the terms of the deal have narrowed to the point that the request is for a specific type of drug and,therefore, the target can commit an offence by simply agreeing to provide what the officer has requested. In some cases, a request topurchase a specific quantity of drugs will suffice.

For example, in Williams' case, where the police were working from a tip that theindividual 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 (Ralph, at paras. 29 and 31-32; R. v. Imoro, 2010 ONCA 122, 251 C.C.C.(3d) 131 (Ont. C.A.), at paras. 3 and 15-16, aff'd 2010 SCC 50, [2010] 3 S.C.R. 62 (S.C.C.); Townsend, at paras. 42 and 47; R. v.

Gould, 2016 ONSC 4069(Ont. S.C.J.), at paras. 18 and 30 ). 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 (R. v. Marino-Montero, [2012] O.J. No.1287 (Ont. S.C.J.), at para. 15; R. v. Izzard, [2012] O.J. No. 2516 (Ont. S.C.J.), at para. 22; Williams(2010), at para. 19, see also para. 54;R. v. Gladue, 2012 ABCA 143, 285 C.C.C. (3d) 154 (Alta. C.A.), at paras. 4 and 11; R. v. Stubbs, 2012 ONSC 1882(Ont. S.C.J.), at para.12 ; Arriagada, at para. 26; Clarke, at para. 37). [13] I agree with Mr.

Carleton’s contention that the conversation was pointed in nature and became an offer early into theirinteractions. Officer Perret testified in direct examination that she approached Mr. Gibbs. She engaged him in conversation, and inparaphrase, the following discussion ensued: I approached him and asked, can I buy some drugs, specifically fentanyl and methamphetamines. He did say he could provide thosedrugs but had none on him, he’d have to come back. I requested a point of down which is 0.1 grams, I had previously negotiated a priceof $30 for it.

I was negotiating the price for fentanyl, I asked why so much, he said ‘it was good shit and would fuck me up’. When I firstapproached him, I asked him, could I buy a point of down and a point of side. A point of down is 0.1 grams of fentanyl and a point ofside is 0.1 grams of methamphetamines. [14] Generally speaking, this is exactly the kind of language addressed in para. 66 of Ahmad that traditionally constitutes an offer.“When I first approached him,” in other words, almost right away, she asked for a specific amount and type of drug.

Again, from para.66: “courts have consistently recognized that a request to purchase a specific type of drug during the conversation will amount to anoffer.” And furthermore, “I need 80”, “I need 40”, “I want a 60 piece” are all examples of offers. It would be difficult to distinguishCorporal Perret’s language from these traditional offers. [15] Furthermore, it is an offer at that early juncture, because Mr. Gibbs accepts it.

He says effectively and in totality “yes” by hisbroader statements and actions: He will provide the officer with such substances but since he doesn’t have them on him, he has to firstprocure them, which he forthwith does and a hand-to-hand transaction ensues. Just like the language at para. 64 of Ahmad contemplates:It’s an offer when the officer says something to which the accused can commit an offence by answering yes, which he did here, uponconsideration of the totality of his responses and actions. [16] In

summary, I conclude that a plain reading of para. 20 of Ahmad supports the proposition that the offer to commit a crime mustbe premised upon reasonable suspicion of particular criminal activity, whether by a person, place, or a combination of the two. In thisparticular case, however, there is nothing in the actions of Mr. Gibbs that add to the grounds, and since the offer is made very early in theexchange between Corporal Perret and Mr.

Gibbs, there is nothing in his verbiage that adds to the overall “reasonable suspicion”analysis. [17] Therefore, the issue to be determined in this particular case is whether there was reasonable suspicion that particular criminal activity was occurring at the 7-Eleven located at 20th Avenue and Spruce Street, at the time Corporal Perret presented the offer tocommit crime to Mr. Gibbs. [18] Ascertaining this requires an understanding of what constitutes “reasonable suspicion”. The recent Ahmad decision conducts atour de force analysis of this issue.

Justice Karakatsanis, helpfully compiles, reviews, and digests the law on this point, including acareful analysis of the decision of R. v. Chehil, 2013 SCC 49 which was historically the lead case. The analysis culminates at paras. 45and 46: [45] Reasonable suspicion is, by definition, an objective standard that protects individuals' interests and preserves the rule of law by

ensuring courts can meaningfully review police conduct. For this reason, it is fundamental to restraining the power of police to provideopportunities to commit crimes. That said, reasonable suspicion is not "unduly onerous" (Mack, at p. 958). As a lower standard thanreasonable grounds, it allows police additional flexibility in enforcing the law and preventing crime.

In the entrapment doctrine,reasonable suspicion emerges from the first branch's concern with police behaviour that falls short of actually inducing an offence, yetnonetheless constitutes police involvement in the commission of a crime. [46] While the reasonable suspicion standard requires only the possibility, rather than probability, of criminal activity (Chehil, at para.27), it must also be remembered that it provides police officers with justification to engage in otherwise impermissible, intrusive conductsuch as searches and detentions.

It is therefore subject to "rigorous," "independent" and "exacting" judicial scrutiny (Chehil, at paras. 3and 26). The suspicion must be focused, precise, reasonable, and based in "objective facts that stand up to independent scrutiny"(MacKenzie, at para. 74). In Simpson, at pp. 500-3, the Court of Appeal for Ontario, drawing from U.S. jurisprudence, this Court'sapplication of reasonable suspicion in Mack, and the articulable cause doctrine in R. v.

Wilson, (SCC), [1990] 1 S.C.R.1291 (S.C.C.), summarized reasonable suspicion as requiring a "constellation of objectively discernible facts" giving the officer"reasonable cause to suspect" that a certain kind of crime was being committed by a particular person or in a particular place. Thisdefinition continues to be applied by this Court (see, e.g., R. v. Jacques, (SCC), [1996] 3 S.C.R. 312 (S.C.C.), at paras.24-25; Kang-Brown, at para. 76; Chehil, at para. 3). Ultimately, the evidence said to satisfy reasonable suspicion must be carefullyexamined. [19] While I agree with Mr.

Carleton that reasonable suspicion requires a rigorous and exacting scrutiny, and requires objective factsthat stand up to judicial review, I am also mindful that it is a relatively low standard that is not unduly onerous and deals with possibility,not certainty nor even probability. [20] Overall, Officer Atkinson was a generally reliable and credible witness. Neither party contended otherwise. He testified that heindirectly directed the undercover operators to the 7-Eleven in question with instruction to attempt to purchase drugs there.

Althoughsuch area was not reflected in the original operational plan, Officer Atkinson made the decision to target this location. [21] In

summary, this decision was based upon the following: He had made personal, first hand observations of people that he knewwere involved in drug trafficking and drug use that were starting to spend time at that location. When he attended there, he saw peopleshowing overt signs of intoxication by drugs. He saw drug paraphernalia in the parking lot and alley. [22] Several times a day he would get calls there, noting “matters” related to drugs. He was dispatched to files regularly involvingdrug use or suspected trafficking or other issues, including disturbances involving people under the influence of drugs.

He heard thesecalls for service over the police radio and also at “intel briefings”. This was an address that was typically at or near the top for all calls toservice. He couldn’t say with precision how many of such calls were drug related. He directly observed drug trafficking at that locationmore than once, but didn’t “feel comfortable” giving a number more than that. He attended that location for drug related calls more than10 times. [23] In cross examination, he noted that he witnessed what he believed to be a drug transaction at that location.

More specifically, hesaw two or more people huddled together, and as he approached them in his marked police vehicle, they turned and went in otherdirections which caused him to conclude it was a drug transaction. [24] Mr. Carleton notes that in R. v. Barnes, (SCC), [1991] 1 SCR 449, which is a classic case that analyzes thesufficiency of grounds regarding location, there was a well-developed statistical analysis presented as evidence. He notes that here, nosuch statistics were proffered. This submission is well met by a portion of the analysis of R. v. Wolfe, 2018 ABPC 87.

Part of the Court’sanalysis surrounded location, and whether the investigation was bona fide. With respect to a statistical analysis pertaining to such area,the court noted the following at paras. 114 – 116: [114] Defence points to the relatively small amount of statistical information included in the SOP to argue that it was not a bona fideinvestigation; effectively that there was not enough statistical information to justify the operation. [115] The Court does not agree. [116] Statistical information is only one consideration.

The Court must take into account all of the circumstances in assessing whetherthe investigation is bona fide. [25] I agree with such analysis. There is no single, requisite pathway to reasonable suspicion. [26] Among other submissions, Mr. Carleton presses that Officer Atkinson’s grounds were generalized in nature and too vague orsoft, not allowing for judicial review. With respect, I disagree with such characterization. Officer Atkinson gave an account of events,many of which he had observed as an eyewitness, first hand: he saw people known to him to be involved in drug trafficking and drug useat that location.

When he attended, he saw people showing overt signs of intoxication by drugs. He directly observed drug paraphernaliain the parking lot and alley. He observed what he believed to be drug trafficking at that location at least once and described it with detail.I am mindful, however, of the limited value of such observation. He didn’t directly see a drug transaction, but rather, a suspicious eventthat he concluded must have been drug trafficking.

This single suspicious event per se would likely not constitute reasonable suspicion inand of itself, but there is a much broader lattice of facts that Officer Atkinson was relying upon. [27] When assessing reasonable suspicion, it is an error to look at each factor in isolation, thus precluding a “divide and conquer”approach to the body of evidence, see para. 62 of Chehil. It is not controversial that this Court must consider the full constellation of factsat hand (para. 46 Ahmad). [28] Although the officer did not provide specific dates with respect to his observations, nevertheless, in

summary and in totality, (i)he saw people known to him to be involved in drug trafficking at that location, (ii) he directly observed drug paraphernalia in the parkinglot and alley, (iii) he saw suspicious activity that he concluded was drug trafficking on at least one occasion, and finally, (iv) he gavesundry testimony as to why he believed that area was associated with criminal activity, to wit: he got calls there several times a day

noting matters related to drugs, including disturbances involving people under the influence of drugs. He attended that location for drug related calls more than 10 times. [ 29 ] This testimony is amenable to rigorous and exacting judicial scrutiny.

It is relatively specific in nature, comprised inter alia of the officer’s first hand account of many of the events, constituting a significant constellation of factors that in my view readily establishes and meets the not unduly onerous standard that there was reasonable suspicion that crime, to wit: drug trafficking, was occurring at the targeted and narrowly demarcated area of the 7-Eleven at 20 th Avenue and Spruce Street in Prince George, British Columbia on the date in question. [ 30 ] If I’m wrong with respect to the sufficiency of Officer Atkinson’s grounds, I note that notwithstanding Mr.

Carleton’s submissions to the contrary, the Court must consider “all the objective factors known to members of the investigative team at the relevant time in determining whether the decision was made with reasonable suspicion,” see para. 82 of Ahmad . The relevant time is “by the time” the offer to commit the offence is presented to an individual, see paras. 60 and 61 of Ahmad . This means this Court must consider the following additional evidence: Corporal Perret testified that shortly after they arrived on scene and before she approached Mr.

Gibbs, an individual who became known to her as “little c” approached them. The undercover operators shared their food with him and he asked them if they were looking to buy drugs. Officer Bonner-Corriveau began negotiating with “little c,” then another female came along and said she’d come back with “down,” which Corporal Perrett confirmed is street slang for heroin and\or fentanyl, but this individual never returned.

This funnels into the assessment of reasonable suspicion and provides powerful, additional, first hand grounds, again, readily meeting the standard in question in conjunction with Officer Atkinson’s evidence. [ 31 ] Therefore, on the evidence before this Court, I conclude there was reasonable suspicion of particular criminal activity, drug trafficking, at the demarcated location. The accused has failed to establish on a balance of probabilities that the defence of entrapment has been made out.

Accordingly, the application for a stay of proceedings is dismissed and the convictions in question are confirmed. ______________________________ Honourable Judge P.A. McDermick Province of British Columbia