R. v. Leonard, 2023 NLSC 98

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Leonard , 2023 NLSC 98 Date : June 30, 2023 Docket : 201801G2086 HIS MAJESTY THE KING v . VINCENT ALOYSIUS LEONARD WAYNE JOHNSON JAMES CURRAN Before: Justice Daniel M. Boone Place of Hearing: St. John's, Newfoundland and Labrador Dates of Hearing: June 20, 22, 30, 2023

Summary: After the Court found the accused guilty of trafficking in cocaine and related charges, the accused applied for a stay of those charges on the ground of entrapment. He testified that he had been induced into committing the offences by threats made by a police agent. The Court did not accept the evidence of the accused that he had been threatened. The application for a stay was dismissed, and convictions entered. Appearances: Elaine M. Reid and

Trevor N. Bridger Appearing on behalf of the Crown Jason A. Edwards Appearing on behalf of Mr. Leonard Mark J. Gruchy Appearing on behalf of Mr. Johnson Candace G. Summers Appearing on behalf of Mr. Curran Authorities Cited: CASES CONSIDERED: R. v. Leonard, 2023 NLSC 70; R. v. Pearson, (SCC), [1998] 3 S.C.R. 620, [1998] S.C.J. No.86; R. v. Mack, (SCC), [1988] 2 S.C.R. 903, [1988] S.C.J. No. 91; F. H. v. McDougall, 2008 SCC 53; R. v. Kenyon(1990), (BC CA), 61 C.C.C. (3d) 538, [1990] B.C.J. No. 2684 (B.C.C.A.); R. v. Showman, (SCC),[1988] 2 S.C.R. 893, [1988] S.C.J. No. 93; R. v. Barros, 2011 SCC 51; R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729 STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Controlled Drugs and Substances Act, S.C. 1996, c. 19 REASONS FOR JUDGMENT INTRODUCTION [1] In a previous decision (2023 NLSC 70), I found Wayne Johnson guilty of offences under the Criminal Code of Canada, R.S.C.1985, c. C-46 and the Controlled Drugs and Substances Act, S.C. 1996 c. 19. [2] Mr. Johnson says that the state entrapped him into the drug trafficking offences of which I found him guilty. He has applied fora stay of those charges. [3] I found Mr.

Johnson guilty of trafficking in cocaine, and possession of cocaine for the purpose of trafficking, during twodifferent periods: October 21, 2015 to January 29, 2016 (described in my previous decision as a transaction between Mr. Johnson andUC#1); and on September 19, 2016 (described in my previous decision as a transaction between Mr. Johnson on one hand, and UCs #6and #7 on the other). I also found that he was guilty of possession of money in excess of $5000 obtained through the commission ofcrime, being the money that he received from the sale of cocaine. [4] Mr.

Johnson says that the Agent and the police communicated threats to him that induced him into trafficking cocaine on eachof those occasions. He says that convicting him on these charges would therefore constitute abuse of process. [5] The only issue on this application is whether Mr. Johnson demonstrated state conduct in investigating these charges thatamounted to entrapment. The evidence does not support Mr. Johnson’s application. It is therefore dismissed. ANALYSIS The Doctrine of Entrapment [6] The doctrine of entrapment developed as a means for the court to prevent abuse of its processes.

Entrapment is not a defence;it does not provide an excuse or justification for criminal conduct. “Entrapment concerns the conduct of the police and the Crown. Thequestion to be answered is not whether the accused is guilty, but whether his guilt was uncovered in a manner that shocks the conscienceand offends the principle of decency and fair play”: R. v. Pearson, (SCC), [1998] 3 S.C.R. 620, [1998] S.C.J. No. 86, atpara. 11. [7] An accused raises an allegation of entrapment after a finding of guilt and asks the court to stay proceedings and consequentlynot to enter a conviction.

The accused has already been found guilty, and therefore can no longer rely on the presumption of innocenceto assist him in making the case. The accused bears the onus to prove that the conduct of the police or the Crown amounted to abuse ofprocess. [8] The standard of proof required to meet this onus is the civil standard of the balance of probabilities: R. v. Mack, (SCC), [1988] 2 S.C.R. 903, [1988] S.C.J. No. 91, at para. 161-168. The Supreme Court of Canada has said that courts should findentrapment only in the “clearest of cases”: Pearson, at para. 12.

However, this does not mean that the standard of proof is higher than theordinary civil standard. The Supreme Court has also held that there is only one civil standard of proof, the balance of probabilities: F. H.v. McDougall, 2008 SCC 53. The statement that entrapment will only be found in the clearest of cases reflects not the standard of proof

required, but rather the extent of leeway allowed to the police to investigate criminal cases, especially in investigations that are notamenable to usual investigative techniques: Mack, at para. 132. The state conduct must be such that it would offend justice to convict theaccused for committing a crime that was really the work of the state: Mack, at para. 77. [9] The authorities preclude the police from engaging in two different forms of conduct that amount to entrapment.

First, thepolice may not engage in random virtue testing by offering opportunity to commit crimes to people about whom the police do not have areasonable suspicion are already engaged in criminal activity. Second, the police may not go beyond merely providing opportunity byengaging in tactics designed to induce people to commit offences. [10] Mr. Johnson relies on the second form of entrapment. He concedes that the police had a reasonable prior suspicion that he wasinvolved in criminal activity.

But, he says the police did not merely provide him with opportunity to commit offences; rather, the policeinduced him to traffic in cocaine. [11] Mr. Johnson says that the state conduct that induced him to traffic cocaine was mainly the work of the Agent. State conductthat grounds an allegation of entrapment can be carried out by a third party acting on behalf of police: R. v. Kenyon (1990), (BC CA), 61 C.C.C. (3d) 538, [1990] B.C.J. No. 2684 (B.C.C.A.). [12] Mr. Johnson puts his argument this way. He says that the Agent threatened him in order to convince him to carry out the drugdeals.

That evidence if believed, in and of itself, he says, is sufficient for him to meet the onus required of him on this Application. However, he says that if it is not sufficient, then the Court should consider the following contextual factors in assessing the policeconduct in this case. First, the RCMP employed the Agent for pay depending to a degree on continuing and ultimate results.

The policedid this notwithstanding that the Agent was a known drug addict, that he became unmanageable during the course of his work for thepolice and that the police had to confront him regarding his drug use, criminal activity and unmanageability. All of those factors createda situation where the Agent was likely to engage in conduct, including pressure and threats against the targets, to achieve results in theinvestigation in order to please the police and continue or increase the payments that would have been due to him.

Second, into the midstof this potential conduct by the Agent, the RCMP delivered letters to Mr. Johnson on three occasions that advised him of unspecifiedthreats to him, and then refused to provide further information when he asked for it. Evidence [13] In order to decide on this application, I will consider the findings of fact that I made in my decision on the guilt or innocence ofthe accused. I will also consider other evidence adduced during the trial that was not relevant to guilt or innocence but that bears on theissues raised by this application.

During trial, with the consent of the Crown, counsel for the accused cross-examined police officers andthe Agent on issues that were not relevant to the question of whether the accused were guilty or innocent, but which were relevant tointended applications raising entrapment (Mr. Leonard and Mr. Curran withdrew their applications). In addition, Mr. Johnson testified insupport of his application, although he had not testified during the trial, and the Crown called one of the undercover officers, known asUC#1 in the trial, to whom Mr. Johnson sold cocaine. Mr. Johnson [14] Mr.

Johnson says that the Agent first approached him in the summer of 2015 about supplying cocaine to associates of theAgent. The Agent did not identify who these people were, but implied that they were serious criminals interested in purchasingsignificant quantities of drugs. At some point, the Agent gave Mr. Johnson the impression that his associates were from St. Pierre, orinvolved in the illicit drug trade to St. Pierre. [15] Mr. Johnson testified that between the summer of 2015 and October 2015, the Agent persistently and aggressively pursued himwith the goal of having him supply cocaine.

He says that the Agent raised this perhaps 20 times with him, even suggesting to Mr.Johnson where he could source the cocaine when Mr. Johnson said that he did not know where to get it. Sometimes, the Agent wouldsay that his associates would be “mad” or “upset” if he did not supply the cocaine, or that he would have to answer for not doing so. Mr.Johnson did not testify that the Agent ever threatened him beyond those statements. However, he said that he was aware that the Agenthad associated with very violent people over the years of their acquaintance. [16] Mr.

Johnson did not suggest that his interaction with the Agent alone created a perception that he was under threat. His senseof threat came from that interaction combined with another, prior event. On August 11, 2015, two RCMP officers came to his door anddelivered a letter to him that stated the following: Potential Threat to Safety Please be advised that unconfirmed information has been received by the Royal Canadian Mounted Police that you may be the targetrelated to individuals involved in criminal activity. This document serves as notice that your personal safety may be at risk.

We are not ina position to corroborate this information. If you have concerns with respect to your safety and require assistance please contact the force of jurisdiction, the Royal NewfoundlandConstabulary, at (709) 729-8000 or for emergency at 911. [17] The RCMP officers who delivered this letter, Cst. Soper and Sgt. Gulliver, refused to answer Mr. Johnson’s questions for

further information on the source of threat. [18] Mr. Johnson concluded that the threat to him described in the RCMP letter came from the Agent’s associates. He interpretedthe Agent’s suggestion that people would be mad or upset at him if he did not supply cocaine as a threat of violent attack against him orhis family. [19] Mr. Johnson says that he reluctantly supplied cocaine to UC#1 in January 2016 solely because he felt threatened to do so. [20] Mr. Johnson testified that he received another letter from the RCMP in the same terms on two occasions in 2016.

One of thoseletters, dated July 13, 2016 was entered into evidence; he could not provide the precise date of the other but said that it predated the July2016 letter. He says that the RCMP rebuffed his requests for further information on each of those occasions. [21] Mr. Johnson testified that in the summer of 2016 the Agent started asking him again to supply drugs to his associates. TheAgent, he says, became more persistent and demanding, even suggesting that Mr. Johnson would have to “answer for it” if he did not doas asked.

He was afraid for his safety and decided to comply, eventually selling cocaine to UCs #6 and #7 in September 2016. He saysthat the Agent had been telling him for more than a month that these people were coming to buy cocaine. The Agent described them asfriends of his from St. Pierre and said that one of them was the girlfriend of a biker. The Agent [22] The Agent was cross-examined during trial concerning the evidence that later was offered by Mr. Johnson. He agreed that hetold Mr. Johnson that the drugs that he sought were bound for St. Pierre. He denied being persistent in asking Mr.

Johnson to supplydrugs and denied that Mr. Johnson ever said that he did not want to do so. He agreed that he put some pressure on Mr. Johnson, sayingthat “this has got to be lined up, people are waiting”, but he said this only because of delay on Mr. Johnson’s part. He stated in responseto the suggestion that he threatened Mr. Johnson that he would not have done so because that would have constituted entrapment and heknew that he had to avoid such conduct in his role as Agent. He refused to concede that he had a financial benefit in forcing these dealsthrough.

He said that he first became involved as an Agent in the interest of solving the murder of Dale Porter, and only reluctantlybecame involved in assisting the police in their investigation of drug trafficking. UC#1 [23] In my previous decision, at paragraphs 95 and 96, I described a cocaine transaction involving UC#1 that took place at theSports Bar on January 29, 2016. The Agent executed this transaction, but I found that he did so on behalf of Mr. Johnson. Following thetransaction, UC#1 returned to the Sports Bar to speak directly with Mr. Johnson and express his displeasure with not dealing directly withMr.

Johnson. Further, on this Application, UC#1 testified that his cover officer informed him that the cocaine sold to him had been oneounce short of the promised amount. He therefore called Mr. Johnson and expressed that he was not impressed with being “shorted”. UC#1 said that he received a later text from Mr. Johnson in which he suggested that he might be able to make up the shortfall. He neverdid so. UC#1 sent one further text to Mr. Johnson asking him to meet to deal with this issue, but Mr. Johnson never replied. [24] In cross-examination, Mr.

Johnson’s counsel suggested to UC#1 that his conduct in these post-transaction conversations wasintimidating and threatening. UC# 1 did not concede this. He said that he expressed his displeasure that Mr. Johnson did not deal withhim directly and shorted him, but that it would have been out of character for the drug dealer he was pretending to be to ignore theseissues. UC#1 said that he did not raise his voice or utter any threats. He noted that he was alone, without any show of protection ormuscle, and on Mr. Johnson’s territory at the Vikings’ clubhouse, when he dealt with Mr. Johnson.

Moreover, UC#1 said that Mr.Johnson did not show any sign of feeling threatened or intimidated. He noted that Mr. Johnson’s behavior in failing to deliver on hispromise to make up the short supply of cocaine was inconsistent with him being afraid. Did the Agent threaten Mr. Johnson? [25] Mr. Johnson says that the Agent was persistent in his requests that he supply cocaine to the Agent’s associates. In R v. Mack,the Supreme Court of Canada did note that the number of attempts made by the police to get the accused to commit a crime is one of theconsiderations in an entrapment application.

However, the Supreme Court in R. v. Showman, (SCC), [1988] 2 S.C.R.893, [1988] S.C.J. No. 93, at para. 24, also noted that persistence alone is not wrongful conduct by the police that could form the basisfor concluding that the police entrapped an accused into a drug deal: “Obviously the average narcotic supplier is not going to respond atthe very first phone call and it would not be unusual for there to be a number of contacts made before a deal is arranged.” [26] Mr. Johnson’s evidence that the Agent threatened him is not supported by the many interactions they had which wereintercepted and recorded.

At no point during those conversations did the Agent make a threat or say anything that was consistent with hishaving previously made a threat. Mr. Johnson says that he had many conversations with the Agent in social settings that the police didnot intercept. The Agent, however, said that he only spoke to Mr. Johnson about the sale of drugs when the RCMP specifically taskedhim to do so. I accept Mr. Johnson’s evidence that he and the Agent had conversations about supplying cocaine that were not intercepted.However, if those conversations had included threats, then Mr.

Johnson or the Agent would likely have referenced or alluded to thosethreats; or at least Mr. Johnson’s claimed reluctance to engage in the deals, during the intercepted interactions. Further, although Mr.Johnson testified that he might have told some other Vikings’ members about the threats, there was no discussion of this in any of themany intercepted conversations among Vikings members. [27] Most significantly, Mr. Johnson’s evidence is also not consistent with his actual behavior or statements during the drugtransactions in question, or after the drug sale to UC#1. [28] Mr.

Johnson testified that before interacting with the Agent he was not a cocaine dealer or at least not a dealer in the quantitiesinvolved in the transactions with the undercover officers. He said that he did not know where to acquire cocaine in such quantities. Hisown statements in the intercepted communications between him and UC#1 directly contradict this testimony. [29] Mr. Johnson and UC#1 first met, in the company of the Agent, in October 2015. The Agent had initially arranged the meeting

as an introduction, but the conversation turned to the supply of cocaine. UC#1 said that he was interested in a “steady flow” and Mr. Johnson responded, saying that “was not a problem.” Mr. Johnson said that he had a regular supply of cocaine of various purities that he sold at corresponding different prices. He described having given another person a “rip” of his 80% cocaine that made that person sick because it was so strong. Mr.

Johnson said that he and his associates were getting away from selling marijuana and into cocaine because its lesser bulk and smell made it easier to transport. [ 30 ] On January 19, 2016, UC#1 and Mr. Johnson spoke to arrange a cocaine purchase. Mr. Johnson described his usual pricing for cocaine, said that he did not cut or “touch” it before reselling, and that he tested the purity himself. [ 31 ] During the transaction with UC#s 6 and 7, Mr.

Johnson raised the possibility of future dealings and said that the next transactions could take place at his house rather than the Sports Bar because he then knew the operatives. [ 32 ] Mr. Johnson’s description of himself as an active dealer of cocaine who was willing to engage in further deals with the undercover officers is also entirely inconsistent with him only engaging in transactions because of threats. If he got involved in these deals only because he was threatened, he could, and likely would, have downplayed his ability to meet the demands when he met the buyers.

Instead, he promoted himself as a significant dealer with his own cocaine supply and discussed future deals, and he never suggested that the deals were one offs. This evidence is relevant to the question of whether he actually was induced. However, it is inconsistent with threats having been made at all. [ 33 ] The same can be said for Mr. Johnson’s behaviour following the January 29, 2016 cocaine transaction with UC#1. UC#1 testified that he confronted Mr. Johnson because the quantity exchanged was less than the represented amount. Mr.

Johnson initially told UC#1 that he would see about rectifying the discrepancy. However, he then ignored later communications from UC#1. This is inconsistent with Mr. Johnson engaging in transactions because he was afraid of UC#1 and his associates. Once again, this is inconsistent with Mr. Johnson’s position that he was actually induced, but it is also a reason to disbelieve Mr. Johnson’s evidence that threats were made at all. [ 34 ] I also find that Mr. Johnson has not demonstrated that the words he claimed that the Agent used constituted threats. [ 35 ] Mr.

Johnson testified that in the period before he agreed to sell cocaine to each of UC#1 and to UC#s 6 and 7, the Agent was not only persistent, but became aggressive and upset with Mr. Johnson’s refusal to do as asked. Mr. Johnson never said that the Agent explicitly threatened him. Rather, he testified that the Agent said that his associates would be “mad” or “upset” if Mr. Johnson did not sell them cocaine, or that Mr.

Johnson would “have to answer” for failing to do so. [ 36 ] In the case of alleged inducement by threat, it is not only the literal meaning of the words used that must be examined, but also the context in which those words were uttered. Inducement by threat is similar in that respect to the criminal offence of extortion, which criminalizes the use of threats, accusations, menaces or violence to induce someone else to do anything. The words used must be definite enough, viewed in the entire factual context, that a person in the position of Mr. Johnson would have perceived a threat: R. v.

Barros , 2011 SCC 51 , at paras. 52-58 . [ 37 ] The factual context within which these words were allegedly spoken included the Agent’s knowledge of Mr. Johnson’s circumstances, and especially his role within the Vikings. The Agent knew that Mr. Johnson was operating on his own turf and that he had layers of protection from his fellow Vikings and his Hells Angels’ connections, known to be willing to use violence and intimidation. There is no air of reality to the suggestion that Mr. Johnson would feel physically threatened by unknown people from St. Pierre. [ 38 ] The Agent denied ever having threatened Mr.

Johnson. He said that he knew that to do so would amount to entrapment. He did concede that he pressured Mr. Johnson to get him to hurry the deals. There was ample evidence in the trial about the Agent’s unmanageability as an Agent, but he had no incentive to lie about this on the stand. Mr. Johnson did not demonstrate that the Agent’s monetary arrangements with the RCMP would be affected by a finding of entrapment. [ 39 ] I therefore conclude that I do not accept the evidence of Mr. Johnson that the Agent threatened him in order to persuade him to sell cocaine to either UC#1 or to UC#s 6 and 7. Mr.

Johnson’s Alternate Position [ 40 ] As I do not accept Mr. Johnson’s evidence that the Agent threatened him, there is no need to consider his alternative theory. As Mr. Johnson did not prove that the Agent threatened him, the conduct of the RCMP in employing an unmanageable agent and delivering letters could not form the basis for an entrapment application. [ 41 ] I will nonetheless deal with Mr. Johnson’s alternate theory. [ 42 ] Mr.

Johnson’s counsel argued that even if the Agent’s words alone were not threats, then considering the context in which they were said, it was reasonable for him to have considered that he was being threatened by those for whom the Agent said that he was arranging cocaine transactions. He says that the context included the RCMP letters warning him of a threat to his safety from undisclosed sources. [ 43 ] I do not accept Mr. Johnson’s evidence that he connected the RCMP letters to the transactions. There were more immediate perils in Mr. Johnson’s world at the time that he received the letters. Mr.

Johnson was involved in the activities of a criminal organization that had engaged in violent acts and intimidation, and was discussing using violence in a dispute with the Outlaws, another motorcycle gang. Mr. Johnson occupied the office of Enforcer with the Vikings. Mr. Johnson was also actively involved in the Vikings’ push toward affiliation with the Hells Angels. Sgt. Gulliver, who delivered the letters to Mr. Johnson, refused to disclose the source of the threat that the RCMP had identified. However, Sgt. Gulliver also testified that he had verbally warned Mr.

Johnson on more than one occasion that he was putting himself in danger by becoming involved with the Hells Angels. Was Mr. Johnson Induced?

[44] For largely the same reasons that I did not accept Mr. Johnson’s evidence that he was threatened, I also do not accept hisevidence that he was induced even if he was threatened. His conduct and statements during the transactions with the undercover officerswere inconsistent with him being a reluctant participant in these transactions because of threats. He represented himself to UC#1 as anactive cocaine dealer with access to a supply of cocaine of varied purity, and to all three undercover officers as interested in future deals.

If he was reluctant and afraid, then he could have avoided further contact with the people threatening him by explaining to theundercover officers that he was not a cocaine dealer but was participating in arranging their cocaine buys on a one-off basis. Instead, hepromoted himself as a willing participant. CONCLUSION AND DISPOSITION [45] Mr.

Johnson has not demonstrated on a balance of probabilities that he sold cocaine because he was induced by threats. [46] Therefore, his application for a stay of the charges of cocaine trafficking, possession of cocaine for the purpose of trafficking,and possession of the proceeds of crime, is dismissed. [47] Mr. Johnson’s counsel and the Crown have agreed on the application of R. v. Kienapple, (SCC), [1975] 1S.C.R. 729 to the charges against him.

Based on the findings of fact in my previous decision, convictions will be entered against Mr.Johnson for Count 1 of the indictment (participating in the activities of a criminal organization), for Count 10 (possession of the proceedsof crime in the amount of $92,800), for Count 15 (one conviction encompassing two incidents of cocaine trafficking), and for Count 16(cocaine trafficking). The charge of possession of cocaine for the purpose of trafficking in Count 17 will be stayed. Counsel havepointed out that even though I found in my previous decision that Mr.

Johnson possessed cocaine for the purpose of trafficking during theperiod October 21, 2015 to January 29, 2016, he was not charged with an offence in respect of this conduct and therefore no convictionwill be entered in respect of this finding. _____________________________ Daniel M. Boone Justice