R v Seymour, 2016 MBCA 118

Citation: R v Seymour, 2016 MBCA 118 Date: 20161209 Docket: AR15-30-08459 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) J. M. Mann and ) M. G. Himmelman ) for the Appellant Appellant ) ) G. G.

Brodsky, Q.C.- and - ) for the Respondent ) ) Appeal heard:CORY JOSHUA SEYMOUR ) September 16, 2016 ) ) Judgment delivered: (Accused) Respondent ) December 9, 2016 On appeal from 2015 MBQB 141, 320 ManR (2d) 232 LEMAISTRE JA Introduction [1] The accused was charged with two counts of weapons trafficking pursuant to section 99(1) of the Criminal Code (theCode) for transferring firearms to an individual (an undercover police officer) who did not have a firearms licence. After trial, a juryfound the accused not guilty of the first count (lending the firearm) but guilty of the second count (selling the firearm).

The trial judgethen stayed the proceedings after an entrapment hearing on the basis that the police had engaged in “random virtue-testing” (at para 54). See also R v Mack, (SCC), [1988] 2 SCR 903. The Crown appeals the stay of proceedings. Background and Issues [2] The RCMP received a tip from a confidential informant that the accused, who was the owner of White Wolf Hunting& Fishing Supplies, was selling firearms illegally. As a result of this tip, the RCMP conducted an investigation to determine whether theaccused was selling firearms to individuals who were without the licence required by law.

During the investigation, an undercoverpolice officer, posing as a hunter, entered the business, told the accused he had damaged his firearm (a hunting rifle) while out hunting,and asked if the accused could fix the rifle or sell him “any old beater guns” so he could continue hunting that day. The officer told theaccused that he did not have a firearms licence. The accused told the officer he could not fix the rifle. He did however agree to lend theofficer a rifle and ammunition so that he could hunt for the rest of the day.

Later that day when the undercover officer went to theaccused’s workshop to return the borrowed rifle, the accused then sold him a used hunting rifle for $150.00 for the purpose of the officerusing the parts to fix his rifle. [3] The Crown appeals the trial judge’s finding of entrapment and argues that the trial judge misapprehended the legaltest for entrapment.

In this regard, the Crown raises four issues: • Did the trial judge reverse the burden of proof? • Did the trial judge apply the wrong test: reasonable grounds to believe rather than reasonable suspicion? • Did the trial judge fail to consider the totality of the circumstances when determining whether the police had a reasonablesuspicion? • Did the trial judge fail to consider whether this was the clearest of cases in which to enter a stay of proceedings?

[4] For the reasons that follow, I conclude that the trial judge did not misapprehend the legal test for entrapment and Iwould dismiss the appeal. Standard of Review [5] The Crown appeals the staying of the proceedings on the indictment by the trial judge pursuant to section 676(1)(

c) ofthe Code. Whether the state has engaged in entrapment justifying a stay of proceedings involves a question of mixed law and fact. SeeMack at para 154. In this case, there is no dispute regarding the facts as found by the trial judge. Whether the facts support a finding ofentrapment and whether the trial judge misapprehended the legal test for entrapment are questions of law, and therefore the standard ofreview is correctness. See R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527; R v Bear (CW), 2013 MBCA 96, 299 ManR (2d) 175. Analysis [6] In Mack, the Supreme Court of Canada held that entrapment occurs when (at para 130): (

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

b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing anopportunity and induce the commission of an offence. [7] The law of entrapment is intended to prevent the police from attracting someone who is not already involved incriminal activity into committing a crime by offering an opportunity to commit a criminal act. This is known as random virtue-testing. See Mack at para 133. [8] The trial judge found that the accused was not induced to commit the offence but that the police engaged in randomvirtue-testing.

Did the Trial Judge Reverse the Burden of Proof? [9] An accused bears the legal burden of establishing entrapment on a balance of probabilities. See R v Pearson, (SCC), [1998] 3 SCR 620 at para 12. Entrapment is not strictly a defence: “the doctrine of entrapment is not dependent uponculpability” (Mack at para 132). There is no shifting of the burden, nor is there a need to establish an air of reality as there is with asubstantive defence.

See Mack at paras 84-85, 103. [10] In this case, the trial judge stated that the ultimate or persuasive burden was on the accused to establish entrapment on abalance of probabilities but that, once the accused established an air of reality to his claim of entrapment, the burden shifted to theCrown. The trial judge also stated that, “the fact that [the accused] was provided with the opportunity to commit an offence raised an airof reality to the claim of entrapment” (at para 24) and that this created an evidentiary burden for the Crown.

The trial judge concludedthat the Crown was therefore required to prove on a balance of probabilities that the police had a reasonable suspicion that the accusedwas engaged in criminal conduct when the undercover officer provided him with the opportunity to commit a crime. [11] The Crown argues that the accused alone bears the burden of proving entrapment and that the trial judge erred byshifting the burden to the Crown when the accused established an air of reality to his claim of entrapment. [12] The accused was a licensed firearms dealer and he advertised to the public by a sign on the outside of his business thathe would only sell firearms in compliance with the law.

The evidence in this case established that the police targeted the accused for acriminal investigation to determine whether he was selling firearms illegally. The police were not conducting a regulatory inspection tocheck for the accused’s compliance with the law (see

section 102 of the Firearms Act, SC 1995, c 39). [13] The police targeted the accused based on information from a confidential informant that the owner of White WolfHunting & Fishing Supplies was selling firearms to individuals who did not possess the requisite licence. The informant provided thisinformation to police officers, who prepared a source debriefing report in which the information was rated as “reliable”. The policeconfirmed the identity of the owner, the address of the business, and the fact that firearms were for sale.

While there was evidence that,based on internal police practices, the police believed that the information from the informant was reliable, the Crown did not lead anyevidence allowing for an independent judicial determination that the information was reliable.

For instance, there was no evidenceregarding when the illegal firearms transactions took place, whether the informant had a proven track record for providing reliableinformation to the police, whether the informant had a criminal record or whether the informant’s information was firsthand or not. [14] In my view, the trial judge misspoke when she referred to there being an air of reality to the claim of entrapment. However, I take her words to be nothing more than saying she had no evidence before her to explain why the accused was suspected tobe breaking the law.

In that situation, particularly given the signage, it is up to the Crown to lead some evidence to explain why alicensed gun dealer’s assertion that he follows the law should not be believed. [15] In light of the proven facts, the Crown failed to establish that the police had a reasonable suspicion that the accused wasalready involved in criminal activity when the undercover officer provided him with an opportunity to commit a crime.

In other words,“it could be inferred from the lack of evidence, that no bona fide inquiry existed” (R v Unterschute, 2004 YKSC 7 at para 24 . [16] Therefore, even though the trial judge misspoke when she said the burden of proof shifts, it did not vitiate the essentialconclusion that the Crown had an evidentiary burden that it failed to meet in terms of establishing reasonable suspicion or a bona fideinquiry.

Did the Trial Judge Apply the Wrong Test: Reasonable Grounds to Believe Rather Than Reasonable Suspicion? [17] When determining whether the police engaged in random virtue-testing, the police conduct must be assessed for itsreasonableness.

As Lamer J (as he then was) explained in Mack (at para 118): [T]he police must not, and it is entrapment to do so, offer people opportunities to commit crime unless they have a reasonable suspicionthat such people are already engaged in criminal activity, or unless such an offer is made in the course of a bona fide investigation. [18] Reasonable suspicion is a low standard to meet and requires proof that the individual targeted is possibly engaged incriminal activity.

It is “something more than a mere suspicion and something less than a belief based upon reasonable and probablegrounds” (R v Kang-Brown, 2008 SCC 18, [2008] 1 SCR 456 at para 75). See also R v Williams, 2010 ONSC 1698 at para 44 . The facts must support the suspicion and allow for “an independent judicial assessment” (Kang-Brown at para 75). See also R vMacKenzie, 2013 SCC 50 at para 41, [2013] 3 SCR 250. [19] The Crown must prove that the police acted on a reasonable suspicion at the moment the opportunity to commit thecrime was provided. See R v Benedetti (RF) (1997), 1997 ABCA 169 , 200 AR 179 at para 11 (CA).

There must also be atemporal connection between the conduct relied upon by the police as forming the basis for the reasonable suspicion, and the opportunitygiven to commit the crime. See Mack at para 117. [20] The Crown argues that, because the trial judge relied on R v Garofoli, (SCC), [1990] 2 SCR 1421,“regarding the proper approach to assessing the reliability of information from a confidential informant”, she conflated the tests forreasonable suspicion and reasonable grounds to believe and applied the higher standard of reasonable grounds to believe.

I disagree. [21] In this case, reasonable suspicion had to exist when the officer asked the accused to sell him a rifle and he made it clearthat he did not have a licence to purchase firearms. [22] On these facts, the officer provided the accused with an opportunity to commit the crime when he asked the accused tosell him a firearm and told him that he did not have a licence to purchase firearms.

There was no evidence that, at this point in time, theinformation regarding the accused’s alleged criminal activity was possibly reliable, nor was there any information as to any temporalconnection between the information provided by the informant as to criminality and when the criminality occurred.

The Crown refusedto disclose any information about the past track record of the informant or their source of knowledge on the basis of informant privilege. [23] While there was evidence regarding the police practices for debriefing informants and for rating the reliability of theinformation received, this supports a finding that the police acted in good faith when they engaged in the investigation. This evidencedoes not satisfy the requirement for “objectively verifiable evidence supporting reasonable suspicion” (Kang-Brown at para 60).

Afinding of reasonable suspicion cannot be based simply on trust of the police; some judicial oversight of the information is required. [24] In this case, the trial judge had no difficulty finding that the police officers believed that they had a reasonablesuspicion that the accused was engaged in criminal activity based on the information they had obtained.

However, she found that shewas unable to determine whether the suspicion was objectively reasonable. [25] In my view, the trial judge correctly set out the law on reasonable suspicion, and correctly applied the standard of proofto the facts when she concluded that, “the Crown has not established that the police had a reasonable suspicion [the accused] was alreadyengaged in criminal activity when they targeted him” (at para 54).

Her reasons show that she did not hold the police to the higherstandard of reasonable grounds to believe, but rather, was unable to conclude there was sufficient proof of reasonable suspicion becauseof the lack of objectively verifiable evidence supporting reasonable suspicion.

This case is distinguishable from R v Virgo (G) (1993), (ON CA), 67 OAC 275, because there was no evidence that the tip contained any details as to how dated theinformant information was, why the accused was illegally selling guns, despite carrying on a lawful business, or how the informant cameinto possession of the information that was provided to the police. Did the Trial Judge Fail to Consider the Totality of the Circumstances When Determining Whether the Police had a ReasonableSuspicion? [26] It is important to consider the totality of the circumstances when assessing the existence of reasonable suspicion.

SeeMacKenzie at para 71. The Supreme Court of Canada explained the nature of the inquiry in R v Chehil, 2013 SCC 49, [2013] 3 SCR 220(at para 29): Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation ofobjectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in thetype of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical,everyday experience . . ..

A police officer’s grounds for reasonable suspicion cannot be assessed in isolation. [27] The Crown relies on R v Olazo (BC) et al, 2012 BCCA 59, 316 BCAC 176, and argues that the first conversationbetween the undercover officer and the accused was an investigative step that “supported the finding that the police had a reasonablesuspicion when the offence was actually committed.”

[ 28 ] The Court in Olazo held that, “a tip from an informant of unknown reliability will create a reasonable suspicion when some ‘objective’ or ‘extrinsic’ piece of information in the tip is confirmed” (at para 17) and that, “[c]onfirmation of the tip must precede the offer” (at para 18). In that case, the police had called a telephone number received by way of a tip which was purportedly the number for a dial-a-dope operation. During the call, the officer asked the male who answered, “can you meet me or where are you” and then the officer asked “if he could do a half”.

The male replied that he “could do two 40s” (at para 8). The Court found that this initial conversation was part of the investigation: the conversation confirmed two aspects of the tip when the phone, which was said to be a 24- hour line, was answered at 2:00 a.m. and the accused understood and used language familiar to drug traffickers. It was not until later when another police officer met with the accused to buy drugs that the opportunity to commit a crime was provided. [ 29 ] In my view, Olazo can be distinguished.

In this case, the accused did not say or do anything to confirm that he was engaged in the illegal sale of firearms before the officer asked to buy a firearm without the requisite licence. To the contrary, he advertised buyers needed a licence to buy a firearm. So in my view, the trial judge was correct when she found that the criminal conduct alleged by the informant had not been confirmed before the opportunity was provided to commit a crime. [ 30 ] The trial judge carefully reviewed the facts proven at the trial and the entrapment hearing.

She reviewed the law of entrapment, including the root of the defence in the doctrine of abuse of process, and applied it to the facts before her. In my view, she engaged in a contextual approach that considered the totality of the circumstances. Did the Trial Judge Fail to Consider Whether this was the Clearest of Cases in Which to Enter a Stay of Proceedings? [ 31 ] Upon proof of entrapment, a stay of proceedings should only be entered in the “clearest of cases” ( Mack at para 152 ).

In the context of an entrapment hearing, it must be remembered that the ability of the state to investigate crime must not be unnecessarily hampered, yet at the same time the state must be held to account for its actions to ensure “the maintenance of public confidence in the legal and judicial process” ( Mack at para 81 ). [ 32 ] Once the court has found that the state has engaged in entrapment by random virtue-testing, it need not engage in a separate analysis to determine whether the administration of justice has been brought into disrepute. That determination flows from proof of entrapment.

See Mack at para 153 . [ 33 ] The Crown argues that the trial judge did not complete the necessary analysis to assess whether this was the clearest of cases in which to enter a stay of proceedings. It argues that the state’s conduct must “‘[shock] the conscience of the community’ such that the integrity of the court’s process and the administration of justice would be brought into disrepute.” [ 34 ] In my view, the trial judge’s reasons demonstrate that she understood the need to be concerned with whether the administration of justice would be brought into disrepute.

She stated (at para 14): Although well established in American jurisprudence for many years, entrapment was not clearly defined in Canada until R v Mack . . .. There, the Supreme Court of Canada found authority for a defence of entrapment in the common law/section 7 Charter doctrine of abuse of process invoked by courts where state actions would bring the administration of justice into disrepute if allowed to stand.

In that context, once she concluded that the state had engaged in random virtue-testing, there was no need for her to go any further in her analysis as to whether this was the clearest of cases in which to enter a stay of proceedings. Simply put, the proof of entrapment brings the administration of justice into disrepute, thereby disentitling the state to a conviction. Conclusion [ 35 ] In my view, the trial judge was correct on the facts here in concluding that the Crown had an evidentiary burden that it failed to meet, while the accused had the ultimate burden of establishing entrapment.

The trial judge applied the correct standard of proof of reasonable suspicion to the facts. The trial judge correctly considered the totality of the circumstances when assessing whether a reasonable suspicion had been proven. In the context of her reasons as a whole, the trial judge was correct in concluding that a stay of proceedings was warranted upon proof of entrapment without a specific finding that this was the clearest of cases. Reasonable suspicion is a very low threshold for an investigation to meet.

It is not the role of the courts to second guess police, but where, as is the case here, there is nothing placed before a judge to explain why the police believe an informant is reliable, it was open to the trial judge to conclude this was the clearest of cases. [ 36 ] Therefore, I conclude that the trial judge did not misapprehend the legal test for entrapment and I would dismiss the appeal. JA I agree: JA I agree: JA