R. v. Om Date:, 2011 BCPC 485

Citation: R. v. Om Date: 20110224 2011 BCPC 0485 File No: 82790-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEVEN OM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: S. Hamade Counsel for the Accused: T. Anderson Place of Hearing: Port Coquitlam , B.C. Date of Hearing: February 23 - 24, 2011 Date of Judgment: February 24, 2011

[1] THE COURT: Mr. Om is charged that on the 23rd day of September 2009, in the City of Coquitlam, Province of BritishColumbia, he did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to s. 5(1) of the Controlled Drugs and SubstancesAct. [2] We have already had a trial in this matter and for reasons that I gave previously, I found Mr.

Om guilty of the offences chargedin Information 82790-1. [3] The defence at the start of the matter, but certainly after the conviction was entered, seeks now a ruling on their application fora judicial stay of proceedings based on the doctrine of entrapment and that is in the context of an undercover dial-a-dope operation. [4] As the Supreme Court of Canada has indicated in The Queen v. Mack, (SCC), [1988] 2 S.C.R. 903, a two-stage trial is appropriate. The first part determines whether the Crown has met its burden under the criminal standard.

The second partdetermines whether, on a balance of probabilities, the accused has established that the doctrine of entrapment should apply. [5] The doctrine of entrapment in Canadian criminal law is an aspect of the broader abuse of process doctrine. Entrapment reflectsjudicial disapproval of unacceptable police or prosecutorial conduct in investigating crimes. The defence is extensively discussed byJustice Lamer in the Mack, supra, decision and in one of his later judgments called R. v. Barnes, (SCC), [1991] 1 S.C.R.449 which was provided to me by the Crown in this case.

Justice Lamer sets out the parameters of the doctrine of entrapment in thosecases and it is clear that there are two competing objectives to consider: 1. On the one hand, it is recognized that the police must have considerable leeway with respect to the techniques that they use toinvestigate criminal activity and their ingenuity must be allowed to match those of criminals. That is often the phrase that is used and Ithink most people can agree with that. 2. On the other hand, it also has to be recognized that the power of the police to investigate crime should not be without limit.

Thepolice should not be allowed to randomly test the virtue of citizens by offering them an opportunity to commit a crime withoutreasonable suspicion that they are already engaged in criminal activity or worse to go further and use tactics designed to induce citizensto commit a criminal offence.

To allow these investigative techniques would offend our notions of decency and fair play. (The secondprong of this caution is not the issue in this case). [6] Justice Lamer struck the balance between these two objectives by concluding that an accused would be entitled to rely on thedefence of entrapment in either of the following two situations: 1.

When government authorities provide a person with an opportunity to commit a crime, unless they have a reasonable suspicionthat the person is already engaged in criminal activity, or unless they are acting in the course of a bona fide investigation (which is theissue that we are dealing with). 2.

Secondly, when government authorities, though they have a reasonable suspicion or are acting in the course of a bona fideinvestigation, go beyond that and provide an opportunity to commit a crime by inducing the commission of an offence. [7] Typically, as in this case, entrapment is alleged when the essential elements of the offence charged have been made out -- andthey have been in this case.

However, if an accused proves an abuse of process because of entrapment a court will not permit the Crownto maintain a conviction as doing so would offend our sense of fair play and bring the administration of justice into disrepute. Instead,the court will stay the proceedings. [8] Normally speaking, as Justice Prowse of our Court of Appeal said in the R. v.

Swan, 2009 BCCA 142 , [2009] B.C.J.No. 623 decision (which was provided by the defence in this case) where the Court finds entrapment it has by definition found thecircumstances give rise to the "clearest of cases" entitling the affected individual to a stay of proceedings. [9] In the present case, we are concerned only with that first branch of entrapment. [10] There is no evidence to suggest that Mr. Om was threatened or induced to sell two rocks of crack cocaine to ConstableSheppard, the undercover officer, on September 23rd, 2009. [11] The first branch of entrapment encompasses two kinds of cases.

In one, if there is a reasonable suspicion that person is alreadyengaged in criminal activity, the police may provide that person with the opportunity to commit a crime (Mack, supra). [12] In the other case, the police may undertake an investigation directed at a geographic area, with a reasonable suspicion thatcriminal activity is occurring there (Barnes, supra, provided by the Crown). [13] Therefore, where the police undertake a bona fide investigation targeting an area where criminal activity is reasonablysuspected, there will be no entrapment.

The police are entitled to provide any person in the area with the opportunity to commit anoffence; if criminal activity is reasonably suspected and the investigation is bona fide. [14] In either kind of case, under the first branch of the entrapment doctrine, the police can lawfully act only on reasonable suspicion,either with respect to an individual or with respect to areas of criminal activity. [15] The requirement of reasonable suspicion in the criminal law context defines the debate in these kinds of cases. [16] The defence say I should apply Swan, supra, and find that there was "a mere suspicion" here in our case.

That was conceded inSwan and as the Court said at para. 29: [29] ... As earlier stated, in order to avoid entrapment by random virtue testing, reasonable suspicion had to pre-exist the solicitation

for drugs, or alternatively, the solicitation had to be made in the course of a bona fide investigation. [ 17 ] Swan , supra , was a similar kind of case to a dial-a-dope case. [ 18 ] The question then becomes whether the police were acting in the course of a bona fide investigation. The defence says that the analysis has to be made in that regard and that it is governed by Swan , supra , and that the same result should be effected for Mr. Om. [ 19 ] The Crown suggests that there was reasonable suspicion in this case.

They say that the circumstances of how the telephone number which was going to be called was obtained leads to a reasonable suspicion. They submit alternatively that if there was no reasonable suspicion that the accused was engaged in criminal conduct prior to the contact with him, then that contact was in the context of a bona fide investigation. [ 20 ] In Mack , supra , and this is the point that I think the Crown is making, the Court specifically recognized that in the circumstances there that the police activity was justified within certain limits.

The Court said at para. 109: [109] 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.

This latter situation, however, is only justified if the police acted in the course of a bona fide investigation and are not engaged in random virtue-testing.

While, in the course of such an operation, affording an opportunity in a random way to persons might unfortunately result in attracting into committing a crime someone who would not otherwise have had any involvement in criminal conduct, it is inevitable if we are to afford our police the means of coping with organized crime such as the drug trade and certain forms of prostitution to name but those two. [ 21 ] So the first submission for the Crown is that the end of that "drug line", if I am going to call it that, the end of that phone line was a location under suspicion, if we are going to take that Barnes , supra , analysis, and apply it to the phone situation, even if the accused himself was not under investigation.

Additionally, he says that the opportunity provided to the accused in this case is justified as a part of a bona fide investigation. The analysis in Swan , supra , which deals with calls to suspected dial-a-dopers, as they are colloquially called, conceded that there was no reasonable suspicion. There were numbers to call in that case.

There were lists and they were being generated from a variety of sources, some of them more compelling than others, but there was no real system of keeping track of the circumstances. [ 22 ] In this case, the relevant facts are the following. [ 23 ] Constable Todd twice stopped the vehicle in the days prior to the arrest and with the accused, both times, there was a Mr.

Schmidt who was a passenger or was an occupant of that vehicle who, according to Constable Todd, had a PRIME report (which is a report alleging criminal activity of that person, and it associated him to drug trafficking activities on both occasions). [ 24 ] Secondly, on both occasions Constable Todd did not find any reason to believe that drug trafficking activity was taking place at the time of those vehicle stops. [ 25 ] Thirdly, on the second stop of this vehicle, Constable Todd removed the occupants (he said for officer safety) searched the vehicle, again for officer safety, and found trace amounts of marihuana, too little marihuana to forward a report to Crown; he destroyed the small amount at the scene.

He also searched the console of that car and found several pieces of paper with phone numbers on them. One in particular had the name "Bobby" and "24-7" and a phone number. While he did not recognize the name or the number, he concluded that the number was a "drug line" number and he seized it. [ 26 ] Essentially, he conceded that the seizure was unlawful as he did not file a report to Crown or possess any lawful grounds to seize it. He kept the piece of paper in his pocket. [ 27 ] A couple of days later, he was involved in an investigation relating to another entirely unrelated undercover drug operation.

At that time they were calling drug line numbers. They had other numbers and they were calling some numbers and they did not pan out during that undercover investigation that they were doing so Constable Todd, apparently, had pulled out the piece of paper that he had seized a few days earlier with the name "Bobby" on it and he suggested to the undercover team that they try it out. He gave the number to Corporal Reddy and he gave some details as to how he obtained it. [ 28 ] Corporal Reddy gave that number to Sergeant Sheppard, the undercover officer, who was then asked to call and he did.

He called looking for Bobby. There was no Bobby, but somebody named Ali identified himself on the other end of the line. Sergeant Sheppard asked him whether he was "working" and Ali replied, "Yes". The sergeant then asked him for "40" which he said in his mind, and in drug parlance, is something like half a gram of crack cocaine and they made arrangements to meet. [ 29 ] There was a meeting; we watched the video. The vehicle that we have already found contained Mr. Om attended the area.

No one got out of that vehicle to attend upon Sergeant Sheppard, but Sergeant Sheppard went to that person and ultimately concluded a transaction. Sergeant Sheppard knew nothing of the origins of the number that he called other than he was told it was a suspected dial-a- dope line. From that I am asked to conclude that a reasonable suspicion was present prior to the call by Sheppard. [ 30 ] In determining that issue I have closely read the Swan , supra , case, I have looked at R. v. Gosselin , [2010] B.C.J. No. 1511 (Prov.

Ct.) which is a decision of Dossa P.C.J. applying the Swan decision. [ 31 ] I have also looked at a case called R. v. Pepper , [2010] B.C.J. No. 786 (Sup. Ct.) dealing with a similar situation. However, in that case there were two tips: one first from Crimestoppers giving some detail about a vehicle and licence plate number of a person trafficking cocaine. There was a second tip from a confidential informant that described the vehicle and gave the phone number of a drug dealer. The vehicle described in the second tip was the same that was described in the first tip.

Then a similar conversation as in Swan , supra , took place.

[32] In that decision, Justice Bowden found that while the reliability of the information received was not known, the similarity of theinformation between the two sources considered objectively could properly lead an investigator to beyond a mere suspicion which mayhave been all that he would have had if he just had the Crimestoppers tip. That moved it from a mere suspicion to a reasonable suspicionthat the person with that cell phone number had been selling drugs. On that basis the application for the doctrine of entrapment wasdismissed. [33] I have also looked at R. v.

Barnes, supra, which is the case that the Crown provided to me as well as R. v. Williams, 2010ONSC 1698 , [2010] O.J. No. 1324 (Ont. Sup. Ct.

Jus.), which is a decision of Justice Hill. [34] In Williams, supra, the police officer honestly believed the tips that were given by an informant and that was found to be areasonable belief, given the officer's past use of the informant and because the tip contained details about the accused. [35] Going back to the Swan, supra, decision, in that case Detective Constable Cratchley had testified that they were getting varioustips from all over the place; they did not have a central repository where the details attached to each of those tips could be figured out anddetermined how compelling they were or not.

The Court of Appeal found that the trial judge had noted that Constable Dhaliwal had only"the barest of information from an anonymous source" that drugs were being sold by whomever was using the cellular telephone. There,the Court of Appeal found that the trial judge erred in relying on Mr. Swan's conduct following his affirmative answer to the questionwhether he was "working". Returning to the point of reasonable suspicion, they say that it must exist with respect to the person beingtargeted, or with respect to the area being targeted.

In order to establish entrapment, the defence must establish that neither of thosecriteria is satisfied. [36] In our case, I find as far as that question under reasonable suspicion is concerned that Constable Todd took this piece of paperfrom a car which contained an occupant. This occupant was an individual that he had reason to believe had been involved in the drugtrafficking business, and he investigated, certainly on that second occasion where this piece of paper was seized, whether in fact thosetwo individuals in that car were involved in drug trafficking.

In fact he got both of them out of the car and from his own evidenceapparently conducted a relatively thorough search of the car including the console area of the vehicle, and he could not find anyparticular evidence that there were dial-a-dope activities taking place. All he found was trace amounts of marihuana.

On the firstoccasion that he had pulled that vehicle over, the note was that there was no basis to conclude that the vehicle was involved in dial-a-dope activity. [37] So he had taken the paper from this car because in his mind it is associated to a person who is involved in the drug traffickingbusiness and that in his experience a phone number with a name and the notation "24-7" on it means to him that it is a drug line and hesays that his experience has told him that that is the case. [38] Constable Todd kept that paper; he did not pass it on to any drug

section member until the aborted operation a few days later ona different matter when they decided that they should try out the number on the piece of paper that he had obtained. In my mind, thatdoes not reach a reasonable suspicion. [39] I have looked at the decision from Justice Hill in Williams, supra, where he discusses the concept of reasonable suspicion atpara. 43 and onwards and where in para. 44 there is a quote from two authors, P. Sankoff and S.

Perrault, "Suspicious Searches: What'sso Reasonable About Them?" (1999), 24 C.R. (5th) 123: [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely heldsubjective belief is insufficient.

Instead, to justify such a search, the suspicion must be supported by factual elements which can beadduced in evidence and permit an independent judicial assessment. [40] There they were dealing with a search but here we are dealing about a belief and it is the same because there has to be a beliefbefore a search can be made. [41] Here, it is a mere suspicion. It was a hunch on behalf of Constable Todd that the person who was going to be found on theother end of this line would be able to successfully set up some kind of drug transaction. It cannot go to the level of reasonablesuspicion.

Reasonable suspicion has to have some kind of factual elements attached to it that could permit an independent trier of fact tocome to the same conclusion. [42] If you were to take all of the evidence and put yourself in the shoes of the officer who, with all of his experience and all of histraining, should be able to -- even in light of all that -– articulate a basis upon which the Court could find that a reasonable suspicion wasnot only subjectively held but was objectively reasonable in the circumstances. I cannot do that because the evidence does not go thatfar.

The officer was completely unable to provide some kind of objective factual element that would permit an independent judicialassessment that would assess his belief. [43] Really what it boiled down to was that the officer, because this paper was taken from the area of a suspected drug trafficker,came to a conclusion or at least he says he had a reasonable suspicion when in fact all the paper contains is a name with a phone numberon it.

Objectively speaking, I do not know how anyone could come to the conclusion that there is a reasonable suspicion, even in thecircumstances of how it was obtained that the person on the other end of that number is a drug trafficker. [44] Moving on to deal with Crown's argument as to whether this was a bona fide investigation, in my mind looking at Swan, supra,the Court of Appeal says it was not a bona fide investigation. In fact, it is less so than in Swan because in our case it really was a lastminute kind of decision by Constable Todd to bring this phone number forward and saying "Let's have a try at it".

The answer to thequestion of whether he was "working" or not in Swan certainly was one that was readily susceptible to a perfectly innocentcharacterization and it is in this case; it is the same conversation. [45] There is an inherent ambiguity obviously in the question, "Are you working?" That was noted in the Swan, supra, case and aswell in the Court of Appeal's view it was when the undercover officer there said that she needed "40 up" and there was a response to thatwhich was argued to be the basis for the police acting on something more than mere suspicion.

[ 46 ] But it is prior to that question which the Court of Appeal says was immediately a solicitation for cocaine and subject to the determination of whether the police were acting pursuant to a bona fide investigation. Their undercover approach to Mr. Swan could properly be characterized as random virtue testing and the Court of Appeal says there: As earlier stated and in order to avoid entrapment by random virtue testing, reasonable suspicion had to pre-exist that call. [ 47 ] The Court of Appeal then goes on to discuss the bona fide investigation.

At para. 42 in Swan , supra , the Court said: [42] In my view, Barnes does not stand for the proposition that, in order for an investigation to be bona fide, it must be restricted to a narrow geographical area. [ 48 ] I obviously have to agree with that and I think that is one of the points Mr. Hamade was making that this was a broad location at the end of the phone but that is what necessarily is the case when calling a telephone. The Court continues in para. 42 and goes on to say: [42] ...

If the investigation is otherwise bona fide, the fact that the reach of the investigation is broad will not, in itself, be fatal. In this case, it is not the breadth of the investigation which casts doubt on the bona fides of the investigation, but rather the methodology employed by the police to which I have just referred. [ 49 ] In para. 43, the Court said: [43] I accept that dial-a-dope investigations present different problems in terms of detection and enforcement than the buy and bust investigations described in Barnes .

I also agree with the trial judge that the police in this investigation were operating bona fides to the extent they were conducting their operations with the genuine goal of pursuing serious crime, namely the trafficking in hard drugs, without ulterior motives. I conclude, however, that in pursuing their goal, they overstepped the bounds of a bona fide police investigation, as that expression is used in Barnes , by proceeding armed only with mere suspicion and the hope that their unknown targets will provide the "something more" which was a necessary precursor to the invitation to traffic in drugs.

They pursued their investigative goals in circumstances where more information was, or could have been, available to them, but which they chose to disregard for reasons of expediency. [ 50 ] In our case it is the phone conversation as far as the bona fides of the investigation is concerned.

They proceeded in the hope that the target on the other end, which was not even "Bobby" but some other unknown person would provide the "something more" and that was the "shot in the dark" approach that was taken in Swan , supra , and really is the same approach that was taken here in this case. [ 51 ] In light of that, while I have sympathies with the investigating agencies who are trying to deal with the scourge of dial-a-dope operations and how they should investigate them, it seems to me that the cautions and suggestions in Swan , supra , are as appropriate in this case as they were there.

There should be some better and more substantial investigation. That may require some time and effort to get more detail to substantiate tips but that is necessary when they say they need to discourage that type of conduct. [ 52 ] In my mind the result has to be the same as the one in Swan , supra , because really if it is boiled down to the essential elements, the case is materially indistinguishable from that one even though there are different facts and a slightly different analysis.

Ultimately, the elements of entrapment have been established on the balance of probabilities by the accused and the result has to be the same as in Swan and that is a judicial stay of proceedings. (ORAL REASONS FOR JUDGMENT CONCLUDED)