) ) HIS MAJESTY THE KING – v. –, 2023 ONSC 2423

CITATION : R. v. Collins, 2023 ONSC 2423 COURT FILE NO.: 15861/22 DATE: 20230421 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HIS MAJESTY THE KING – and – ZACHARY COLLINS Defendant ) ) ) ) ) ) ) ) ) Robert Greenway, for the Crown Mitchell Huberman, for the Defence ) ) ) HEARD: April 19, 2023 rULING ON ENTRAPMENT APPLICATION LEIBOVICH J. [ 1 ] Mr. Collins was charged with various drugs and gun related charges on an 11-count indictment. The charges emanated from a number of transactions conducted between September 10 and October 8, 2020, where Mr.

Collins was alleged to have sold cocaine and fentanyl to an undercover police officer. Mr. Collins was also alleged to have offered to transfer a firearm to the same undercover officer. At trial, the Crown called the undercover officer and one other officer for the purposes of establishing continuity. The rest of the Crown’s case was presented via an agreed statement of facts. At the end of the Crown’s case, the defence invited the Court to find Mr. Collins guilty of the offences. [ 2 ] I accepted the defence’s invitation and I found Mr. Collins guilty of the 11 counts.

I was satisfied beyond a reasonable doubt that the Crown had proven the elements of the offences. The 11 counts relate to the following transactions: 1) Counts 1 and 2: On September 10, 2020, Mr. Collins sold to the undercover officer 14.3 grams of cocaine for $1,000. 2) Counts 3 and 4: On September 16, 2020, Mr. Collins sold to the undercover officer 14.4 grams of cocaine for $1,100. 3) Counts 5 and 6: On September 16, 2020, Mr. Collins sold to the undercover officer 15.1 grams of fentanyl for $1,000. 4) Counts 7 and 8: On September 23, 2020, Mr.

Collins sold to the undercover officer 14.4 grams of fentanyl for $1,000. 5) Counts 9 and 10: On September 29, 2020, Mr. Collins sold to the undercover officer 14.2 grams of fentanyl for $1,000. 6) Count 11: On October 8, 2020, Mr. Collins offered to transfer a firearm to the undercover officer. [ 3 ] However, the defence submits that with respect to Count 11, the firearm charge, Mr. Collins was entrapped by the undercover officer and a stay should be entered with respect to that count. The defence is not alleging that Mr. Collins was entrapped with respect to

the drug transactions. It is the defence’s position that with respect to the firearm charge, while the police had a reasonable suspicion, they went beyond offering Mr. Collins an opportunity to commit the offence; they induced him. Relevant Facts [ 4 ] On consent, the evidence led at trial was applied to the entrapment application. No other evidence was called. Consistent with the position of counsel, the cross-examination of the officer at trial was confined to areas that were relevant to the entrapment issue. The September 10, 2020 meeting [ 5 ] Officer Palmer was the undercover officer.

He was provided information that Mr. Collins was selling drugs. He was given a phone number and was told that Mr. Collins went by the name Louie. On September 10, 2020, Palmer called the number. He confirmed that he was speaking to Louie and that Louie was working, in other words, selling drugs. Palmer and Mr. Collins agreed to meet at the Oshawa Town Center for a drug transaction. [ 6 ] There, they went to Palmer’s car. Palmer sat in the driver’s seat and Mr. Collins sat in the passenger seat. Mr.

Collins said that he can get any drugs that Palmer wanted: white (cocaine), feti (fentanyl), crystal (crystal meth) and pills. Mr. Collins explained that if you sell fentanyl by the point, you can make a lot of money, but he cautioned that people get long sentences if caught with a lot of fentanyl. Mr. Collins took the cocaine out from his pants and weighed it while they were talking about the business of selling drugs. Mr. Collins gave Palmer half an ounce of cocaine for a thousand dollars. [ 7 ] While Mr. Collins was weighing the drugs, he said that he could get Palmer anything he wanted.

He said that he could get 3ks (which Palmer took as a reference to 3 kilos of cocaine) right then. Mr. Collins said he was serious, not joking. He listed the drugs again that he could get. He also then said that he could get straps, which Palmer took as a reference to firearms. Mr. Collins said that he could get two guns. When asked what kind, Mr. Collins said whatever and showed him pictures of two firearms: one was a Glock with an extended clip and one was a silver revolver. Mr.

Collins said that the price was high, between $4,000 to $6,000 and that it was the quality of the clip and the gun that made it expensive. Mr. Collins also said that he could get spinners (which Palmer took as a reference to a revolver) for $1,200. Mr. Collins said that he could sell the Glock with the extended clip for $5,500, which was his cost. Palmer asked if he bought more would the price be less. Mr. Collins said yes. Palmer said that he was interested, and he would make a few calls to see if he could move the guns and would get back to him. Mr. Collins said to give him a call because he was always around.

The meeting ended. [ 8 ] In cross-examination, Palmer agreed that Mr. Collins could have been bragging about all the drugs that he could get. [ 9 ] Later that day, Palmer called Mr. Collins at 9:01 and 9:02 p.m., but it went to voice mail. He called him again at 9:56 p.m. and spoke to Mr. Collins. Palmer told Mr. Collins that everything was okay. Mr. Collins said “of course” and Palmer said he would call him the next day. [ 10 ] Palmer agreed that the initial plan was to buy drugs from Mr. Collins. After September 10, 2020, the investigation expanded from drugs to drugs and guns.

In cross-examination, Palmer disagreed that Mr. Collins made a mere comment about guns; he described it as an offer to sale for a price. September 11, 2020 [ 11 ] On September 11, Palmer was informed by his handler, Officer Lee, that the cocaine was only 32% pure. Palmer called Mr. Collins and said that he had received some complaints and that the purchase was okay but not “fire”, i.e., not top quality. Mr. Collins was surprised. Palmer said he wanted to buy another half ounce like before. Mr. Collins said that he would speak to his “plug” (supplier) and call him in a couple of hours. Palmer said that he sent Mr.

Collins a subsequent text and tried to call him a couple of times but was unable to contact him on that day. September 12, 2020 [ 12 ] On September 12, Palmer called Mr. Collins at 2:05 p.m. and it went to voice mail. At 6:13 p.m. he spoke to Mr. Collins and asked if everything was good and that he was trying to get hold of him. Mr. Collins said that his phone was messed up, the screen was broken. He explained that he was in Scarborough, and he would call Palmer when he returned. Palmer called Mr. Collins at 7:45 p.m. but it went to voicemail. September 13, 2020 [ 13 ] Palmer called Mr.

Collins on September 13, who said that he was still waiting for his plug (supplier) and that he should be good in a day or so and would let Palmer know. Mr. Collins also referenced a different drug he had that would cost $1,800. Palmer asked Mr. Collins to let him know when he had cocaine the available. September 15, 2020

[ 14 ] On September 15, Palmer tried contacting Mr. Collins at 11:58 a.m., 1:30 p.m., 1:43 p.m. and 4:27 p.m., without success. At 5:09 p.m. he spoke to Mr. Collins. Palmer asked Mr. Collins what was going on as he had not been responding to his calls or texts. He reminded him who he was. Mr. Collins said that he remembered him. Mr. Collins said that he had been away for a few days and just returned to Oshawa. Palmer said that he wanted to meet for drinks and to discuss business.

In cross-examination, Palmer agreed that he wanted to talk about future business deals involving drugs and guns. [ 15 ] It was arranged that Palmer would pick up Mr. Collins, as Mr. Collins did not have a car. Palmer picked up Mr. Collins around 9 p.m. They drove first to a place on Adelaide Street where Mr. Collins had to make a drug transaction. Palmer waited in the car. Mr. Collins returned, and they drove to St. Louis bar. In the car to Adelaide and to St. Louis, they talked about working for their kids. They talked about the pandemic. Mr.

Collins said that when he is with his kids, he doesn’t answer the phone and showed Palmer all his missed calls. Mr. Collins said that he does not have the cocaine as he was having arguments with his supplier over its quality. That supplier had to return ten bricks of cocaine. He said that everyone was waiting for a better supplier. Mr. Collins hoped that things would get back to normal soon. [ 16 ] Palmer said that he had someone that was interested in fentanyl. [ 17 ] While driving to the bar, Palmer said that he wanted two firearms and that he was going to send one back to Jamaica. Mr.

Collins cautioned him about sending things through the mail. [ 18 ] At the bar they spoke more about selling drugs. Mr. Collins said that he made more money by selling fentanyl by the point instead of wholesale. Mr. Collins again cautioned about being caught with fentanyl because of the lengthy drug sentences. Palmer paid for the meal. [ 19 ] They spoke again about the firearms. Palmer asked Mr. Collins if he could really get anything. Mr. Collins said he could, if he didn’t have it, he could get it. Mr. Collins said that he had people who had firearm licenses who would buy the guns. Mr.

Collins said that he did not get the two firearms that he had earlier showed to Palmer. Palmer said that if he had a “link” re the firearms, he would let Mr. Collins know. Mr. Collins said okay. [ 20 ] Palmer dropped of Mr. Collins and told him to let him know when his fentanyl supplier got back to him so they could meet the next day. September 16, 2020 [ 21 ] On September 16, Palmer and Collins spoke and Palmer arranged to buy a half ounce of cocaine and a half ounce of fentanyl. They met at 10:30 p.m. Mr. Collins got into the passenger seat and gave Palmer a half ounce of cocaine for $1,100. Mr.

Collins said that he just picked it up from his supplier and that Mr. Collins picked up his own supply as well. Palmer saw that Mr. Collins had a second package. They then drove to Mr. Collins’ cocaine supplier on Birk Street to give him the money. They then drove to 76 Gabe Crescent and waited for the arrival of Mr. Collins’ fentanyl supplier. The person arrived, and Mr. Collins went into the house and returned to the car with the fentanyl. Mr. Collins gave Palmer the fentanyl and Palmer dropped Mr. Collins off at his house. September 17, 2020 [ 22 ] On September 17, Palmer and Mr. Collins spoke at 7:35 p.m.

Palmer said that he wanted to buy another half ounce of cocaine the next day. Palmer said that he also wanted to talk about the other thing. Mr. Collins responded, “got you”. Palmer said he would contact him. At 7:41 p.m., Palmer texted Mr. Collins that there were no complaints and that his customer wanted to be his steady. Mr. Collins responded via text, “okay, okay, bless, I got you.” Palmer texted back, “respect, if you have more of those things – want to take two off you, a nice thing for me and one for yard (Jamaica)”, which was a reference to buying two guns. Mr.

Collins responded via text “okay, okay, say less I’ll inquire”. Palmer texted back, “bless, link tomorrow.” September 18, 2020 [ 23 ] On September 18, Palmer made a number of attempts to connect with Mr. Collins. Finally, they connected. Mr. Collins said he would check his supplier. Palmer said he was waiting on him. Mr. Collins asked what he needed. Palmer responded “half soft” which was a reference to cocaine and that Mr. Collins should check on other things, which was a reference to the guns. Palmer sent a number of other messages later that day but received no response.

Palmer then said he had to leave, and Mr. Collins responded okay. September 21 and 22, 2020 [ 24 ] Palmer said that he exchanged messages on September 21 with Mr. Collins. Palmer told Mr. Collins that he had ghosted Palmer on Friday (September 18) and asked if he was good for this week. Mr. Collins said he was. At 9:47 p.m., Palmer asked: “any word on the other thing?” Mr. Collins asked which one. Palmer answered: “two shoes boss one for me and one to send.” This was a reference to the firearms. Mr. Collins did not respond. Palmer sent Mr. Collins a message on September 22 but he did not get a response.

September 23, 2020

[ 25 ] On September 23, Palmer made a number of unsuccessful attempts to contact Mr. Collins. Mr. Collins did contact him at 6:01 p.m. and said that he had been up all night. Mr. Collins said that he had the fentanyl but there was a problem with the cocaine and that it was “shit”. After some missed calls they were able to arrange to meet. [ 26 ] Palmer and Mr. Collins met. Mr. Collins entered Palmer’s car and gave him half an ounce of fentanyl for $1,000.

Palmer brought up the guns and said that he didn’t care what type, but he wanted one nice for here, but he didn’t care about the other one because he was going to send it home to Jamaica. While they were in the car, Mr. Collins made some phone calls. He called one person named Bigga. Palmer testified that the two pictures that he saw on September 10 of the guns were from Bigga. Palmer testified that Mr. Collins called a couple other people, including a person named Puckypuck. Mr. Collins said that he had a contact with a two-tone handgun, and showed Palmer a snap chat video of a handgun and a photo of a Glock 17.

Mr. Collins said that he could get a spinner (38 revolver) the next day. He also had access to a big bag of guns (rifles and long guns) from a friend of his from a robbery. The bag was in Scarborough but there were logistical issues regarding their transportation. September 24, 2020 [ 27 ] On September 24, Palmer sent Mr. Collins a message via the wicker app asking about the contact with the man who had the 38 revolver. Mr. Collins said he would check. Palmer asked a little later on for an update. Mr. Collins told Palmer that he was waiting for a man to link him with the guns.

Palmer said that it was cool, he had the money and was ready to go. [ 28 ] They communicated via the wicker app the next day. Mr. Collins asked Palmer if he wanted to buy a half ounce of cocaine. Palmer declined. Palmer texted later and asked Mr. Collins if he had an update on the gun, who replied no. Palmer responded, “cool, if people won’t come through just let me know, only talking with you because said you had connect.” Mr. Collins did not respond. [ 29 ] On September 28, Mr. Collins and Palmer communicated through wicker. Mr.

Collins said that he was still looking into it but that he had good quality cocaine and fentanyl for sale. Palmer said that he was not interested at the moment but asked Mr. Collins to contact him if Collins had the gun. September 29, 2020 [ 30 ] On September 29, the following exchange occurred between Mr.

Collins and Palmer via text: P: need to know if you can come through with the thing, I need to know by tomorrow the latest, my people looking at me like a goof because I said I had a link, need to know ASAP C: told you straps are a mash up – not around, only drugs available. [In cross-examination Palmer explained that even though Mr. Collins said “told you”, this was the first time he had told him that the straps were mash ups] P: thought you were still working on it, I guess things are fucked.

Tell me when serious link, people are still looking, hate to miss out on some money. [In cross-examination Palmer testified that regarding the money comment, he left it open as to who would miss out on some money. He disagreed that he was trying to entice Mr. Collins to sell guns] C: trust but I have some super fire soft right now… and some wicked fenti [ 31 ] They then spoke and arranged to meet to buy fentanyl. [ 32 ] Palmer testified that he received authorization to make another buy, but that he was also supposed to clarify if Mr.

Collins was unable ever to provide the guns, or if this was just a temporary problem. Palmer was to determine whether Mr. Collins was still in the game or not. Mr. Collins and Palmer met. Mr. Collins gave him a half ounce of fentanyl for $1,000. [ 33 ] Palmer asked him if, with respect to the guns, were his contacts no good or was this a temporary problem. Mr. Collins said that this was temporary and that his contacts were not selling at the moment. He said that he could get a snub nose 38 for $3,500 with two rounds and that it was clean. Mr. Collins believed that the guns would come back around.

He said that guns were slow because of COVID and the restrictions at the border. [ 34 ] Palmer dropped off Mr. Collins at the Shoppers Drug Mart. They stayed in the parking lot and talked about guns. Palmer said he had people who wanted them and there is money to be made. Mr. Collins talked again about the bag of firearms, but they were hard to transport. Mr. Collins said that his contact could get the snub nose 38 in a couple of days, but he wasn’t sure that he knew what a couple of days meant. He also said that he was having problems with his cocaine supplier.

The cocaine had to be returned because it tasted like rubber. [ 35 ] Palmer, in cross-examination, agreed that the benefit to selling guns is making money but he did not think he was enticing Mr.

Collins to sell guns. Palmer testified that in his view Mr. Collins’ explanations for not coming through were plausible. He did not say he could not ever get guns to sale, rather it was a temporary blip and that it was possible for it to happen. He thought Mr. Collins was credible and not bluffing. [ 36 ] Palmer agreed in cross-examination that Mr. Collins raised the subject of selling guns at the September 10 meeting but that since then, it was he [Palmer] who raised the topic. He agreed that from September 10 to October 1, he raised the topic of guns ten times.

Palmer testified that it wasn’t realistic to wait for Mr. Collins to raise the topic. He testified that he was trying to get an unknown male to trust him and get him to sell to him. Sitting back wouldn’t work, it was not realistic and there was a time crunch. Investigations are fluid. Palmer agreed that he was not aware of Mr. Collins having ever sold a firearm. October 1 to 8, 2020 [ 37 ] On October 1, Mr. Collins called Palmer at 2:41 p.m. Palmer missed the first incoming call from Mr. Collins, but Mr. Collins sent a text a minute later saying that the guns were back around. Mr.

Collins said that he had two for $8,000, no spinners and asked if Palmer was ready. Palmer texted back at 4:10 p.m. and said he was ready to go right now and asked if there was ammunition. Palmer called Mr. Collins at 4:17 and 4:55 p.m. but Mr. Collins did not answer. Palmer sent a text at 4:55 p.m. At 5:17, Mr. Collins texted him, “okay, okay, just waiting on my boy, then we will pull up on it.” Palmer texted and asked about timing. Mr. Collins responded that he was not sure, and he would let him know. Palmer called and spoke to Mr. Collins at 8:09 p.m. Mr.

Collins said that it was supposed to be two brand new Glocks. He was waiting for them to be delivered to Malverne and then they would go and get them. Mr. Collins expected that it would happen that night. During the course of this phone conversation, Mr. Collins said that his contact was calling, so Palmer got off the phone. At 9:31p.m., Palmer texted for an update but received no response. At 11:44 p.m., Palmer texted, and in essence, said that they should do it tomorrow. [ 38 ] The next day, on October 2, Mr. Collins told him that as soon as his contact linked him, they would go.

He said it would take a day or two to set up. Later that day, Palmer texted Mr. Collins and told him to make sure that his contact did not sell the guns to someone else. Palmer called Mr. Collins at 9:55 p.m., without success. [ 39 ] On October 4, Mr. Collins texted Palmer and said that he is trying to make it happen and that he was paging his guy every day, waiting for him. He also texted that he had good quality fentanyl and cocaine. [ 40 ] On October 6, Mr. Collins texted Palmer that he was still trying and that he only had fentanyl.

Palmer said that he was waiting to hear from his own fentanyl client and that he would get back to Mr. Collins. The following conversation ensued: P: you link me like it was set and now nothing? C: that’s what happened to me as well P: another person? C: no, don’t know what happened. He is getting them from someone else [ 41 ] Palmer asked about the snub nose 38. Collins said that he was waiting for the person who wanted to get rid of it. They then discussed cocaine and fentanyl. Mr. Collins said that the price had increased because of the pandemic.

Palmer was asked in cross- examination why he did not take up Mr. Collins’ later requests to sell him drugs. Palmer explained that there were financial constraints on the amount of police “buy” money that he had. [ 42 ] On October 7, Mr. Collins called Palmer, who missed the call. Mr. Collins then texted Palmer that things “are a go, right now”. Mr. Collins asked Palmer to pick him up and then they would drive to Scarborough to pick up the guns. Palmer said that he could not go at that moment, but he could go the next day. Palmer spoke to Mr. Collins later that day and asked if they were still good. Mr.

Collins said yes. Mr. Collins said that when his contact woke up, he would link them and then they could go. At 11:26 p.m., Palmer told Mr. Collins that it looked like a bust and to contact him tomorrow if he heard anything. [ 43 ] On October 8, Mr. Collins texted Palmer and said, “link me asap – they are ready”. Mr. Collins had tried calling Palmer twice, but Palmer missed the calls. Palmer later spoke to Mr. Collins. The price had changed to $9,000. The plan was for Palmer to pick up Mr. Collins and then drive to Birchmount and Eglinton. Palmer picked up Mr. Collins and they drove west. Mr.

Collins said that the guns were brand new and had decorative handles. They travelled to 1850 Victoria Park in Toronto, Ontario. They saw some police, so they drove to 2 Biggins Court. Mr. Collins was messaging away on his phone. A person arrived via a taxi, and then he got into the back seat of Palmer’s vehicle. It was clear that Mr. Collins and he knew each other. Palmer showed him the money and they were then directed to the Biggins parking lot. They parked and got out and met another man. The man from Palmer’s car pressed a gun against Palmer’s back while the second male pulled a gun on Mr. Collins.

The males took the $9,000, Mr. Collins’ phone and satchel, and left. The police cover team then came and arrested Mr. Collins. [ 44 ] Palmer agreed that there were approximately 12 times that Mr. Collins did not answer his cell phone and that he was slow to respond to texts. Palmer said that he did not think it was unusual in his experience for drug dealers to not respond to their cell phone. He testified that it is always possible that a person could be nervous because of the multiple requests and could feel pressured. Law and analysis

[45] The law of entrapment is fairly well settled. It is not a substantive or exculpating defence, but rather it is a serious allegation ofstate misconduct that requires, in the clearest of cases, that a stay be entered. The onus is on the accused to show on a balance ofprobabilities that the charges should be stayed because the accused was entrapped. Where the circumstances that merit a stay are madeout, it is because the actions of the government have so exceeded acceptable limits that the court must distance itself from that behaviourto ensure that the integrity of the court is maintained. In R. v.

Ahmad, 2020 SCC 11, the majority set out the rationale for the entrapmentdoctrine at, para. 17: Mack determined that the purpose and rationale of the entrapment doctrine lies in a court's inherent jurisdiction to prevent an abuse of itsown processes. Entrapment is not a substantive defence leading to an acquittal, because in most cases the essential elements of theoffence will be satisfied, even where entrapment occurred.

Rather, the appropriate remedy is a stay of proceedings because "while on themerits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction" and a conviction wouldtherefore bring the administration of justice into disrepute (Mack, at p. 944 (emphasis deleted), citing R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128 (S.C.C.), at p. 148).

Such a remedy also affirms the primacy of personal freedom: the state simply has nobusiness unjustifiably intruding into individuals' private lives, randomly testing their virtue, and manufacturing crime (Mack, at p. 941). [46] The test for entrapment as set out in Mack was reiterated by the majority in R. v. Ahmad, at para. 15: Over 30 years ago, this Court's decision in Mack settled the law of entrapment in Canada. It set out two alternative branches, either ofwhich is sufficient to ground an accused's claim of entrapment and justify a stay of proceedings: There is, therefore, entrapment when: (

a) the authorities provide an opportunity to persons to commit an offence without reasonablesuspicion or acting mala fides ... or, (

b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyondproviding an opportunity and induce the commission of an offence. [47] The Court of Appeal in R. v. Henry-Osbourne, 2021 ONCA 561 made it clear that an officer can form reasonable suspicion beforetalking to a target or in the course of talking to that target, but that the opportunity to commit a crime must only be presented after anofficer has developed a reasonable suspicion.

As stated at para. 17: The Supreme Court also made clear in Ahmad that the police can develop reasonable suspicion either before placing a call to a suspecteddrug line or in the course of a conversation with the target: Ahmad, at para. 54. If the police do not have reasonable suspicion before acall is made, it must be developed during the call but before an opportunity to commit a crime is presented to the target: Ahmad, at para.69.

The Court explained at para. 66 what is meant by an opportunity to commit a crime: [P]olice can make exploratory requests of the target, including asking whether they sell drugs, without providing an opportunity to trafficin illegal drugs. An opportunity has been provided only when the terms of the deal have narrowed to the point that the request is for aspecific type of drug and, therefore the target can commit an offence by simply agreeing to provide what the officer has requested.[Citations omitted.] [48] In this case, the defence concedes that the police, based on their conversation with Mr.

Collins on September 10, had a reasonablesuspicion before Palmer sought to obtain a firearm from Mr. Collins. It is the defence’s position that Mr. Collins was entrapped becausethe police went beyond providing an opportunity to commit the offence and that they induced Mr. Collins to commit the offence. Thereis no dispute with respect to the law in this area. The police cannot employ means which go further than providing an opportunity tocommit a crime. As stated by the Supreme Court of Canada in R. v.

Jaffer, 2022 SCC 45, at para. 9: The inducement branch of the entrapment doctrine provides that even if the police have reasonable suspicion over an individual or actunder a bona fide inquiry, they cannot “emplo[y] means which go further than providing an opportunity” to commit a crime (R. v. Mack, (SCC), [1988] 2 S.C.R. 903, at p. 966).

That assessment may include looking at “whether an average person, with bothstrengths and weaknesses, in the position of the accused would be induced into the commission of a crime” or whether the police“appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction”, among other factors(p. 966).

But the assessment is objective and focuses on the police’s conduct, not on that conduct’s effect “on the accused’s state ofmind” (p. 965). [49] Lamer J. in Mack at para. 9 provided the following non-exhaustive list of factors to be considered in determining whether thepolice had gone further than providing an opportunity: • the type of crime being investigated and the availability of other techniques for the police detection of its commission; • whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into thecommission of a crime; • the persistence and number of attempts made by the police before the accused agreed to committing the offence; • the type of inducement used by the police, including: deceit, fraud, trickery or reward; • the timing of the police conduct, in particular, whether the police have instigated the offence or became involved in ongoingcriminal activity;

• whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; • whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; • the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; • the existence of any threats, implied or express, made to the accused by the police or their agents; • whether the police conduct is directed at undermining other constitutional values. [ 50 ] In this case, the defence submits that the two critical factors that show that the police went beyond providing an opportunity to commit the offence are 1) the persistent and numerous requests by Palmer to buy guns, and 2) enticing Mr.

Collins with the financial reward of making money from the sale of guns. The defence submits that in between September 10 and October 1, Palmer raised the prospect of buying a gun from Mr. Collins on 11 different occasions. Mr. Collins never raised the topic. Furthermore, the defence submits, that it would have been evident to Palmer that Mr. Collins was truly not interested in obtaining guns for him by the numerous times that Mr. Collins failed to answer the officer’s calls or text messages. The defence agrees that on October 1, it was Mr.

Collins who reached out to Palmer, but submits that he only did so after being pressured by Palmer for weeks and with the officer holding out the prospect of making money. [ 51 ] The Crown submits that it was Mr. Collins who initially raised the topic on September 10, and it was Mr. Collins who reached out unsolicited to the police on October 1 to discuss the transaction. The Crown submits that at no point during the course of their interactions did Mr. Collins ever say that he did not want to sell guns to Palmer. Furthermore, the Crown submits that Mr.

Collins was often hard to reach even when they were planning drug transactions. Finally, the Crown submits that the tactics that Palmer employed were not excessive and would not offend the notions of fair play. [ 52 ] In my view, the defence has not established on a balance of probabilities that Mr. Collins was entrapped. The police gave Mr. Collins an opportunity to commit the offence but nothing more. I say so for the following reasons: 1) On September 10, in the middle of completing a drug transaction, Mr. Collins raised the possibility of getting guns if Palmer desired. Mr.

Collins showed the officer photos of guns and set out a price and a description. 2) I agree with defence counsel that it was Palmer who raised the issue of guns between September 10 and October 1. However, at no point during any of these discussions did Mr. Collins indicate that he did not want to obtain guns for him. In fact, he said the opposite. For example: ▪ At their September 15 meeting, Mr.

Collins confirmed that he could get any firearm that Palmer wanted and then explained that he had people with firearm licenses that could obtain them. ▪ On September 17 in response to a text from Palmer about obtaining the firearms, Mr. Collins responded via text “okay, okay, say less I’ll inquire” ▪ On September 23 in the presence of Palmer, Mr. Collins made calls to others looking for guns. Mr. Collins then showed Palmer a video of a gun and a photo of a gun. Mr.

Collins also explained to him that he knew of a bag of guns from a robbery but there were logistical issues regarding their transportation; and ▪ On September 24, Mr. Collins told Officer Palmer that he was waiting for a man to link him with the guns. 3) The defence focuses on the number of times Palmer contacted Mr. Collins between September 10 and October 1 st . However, as stated by Christie J. in R. v. Senior , 2021 ONSC 7254 , at para. 37 : Simple persistence is not automatically inducement. In some contexts, a certain amount of pressure is to be expected.

The fact that the police invest considerable amounts of time and resources into an undercover operation is not, in itself, exploitation or entrapment. See: R. v. Sugden , [1991] O.J. No. 270 (ONCA ) . I also note that we are talking about a three-week period over which these calls/texts/wicker exchanges were made. I do not see the number of contacts to be unusual or excessive especially given that Palmer was also arranging with Mr. Collins the purchase of cocaine and fentanyl. 4) I disagree with defence counsel that one can infer from the missed phone calls and texts that Mr.

Collins was actively trying to avoid Palmer’s request to buy guns and that this would be obvious to Palmer. Palmer testified that he did not find it strange that Mr. Collins, a drug dealer, did not answer his phone. When you look at the evidence, Mr. Collins often did not answer his phone or respond to texts even when Palmer was trying to set up a drug deal and there is no dispute that Mr. Collins was motivated to sell drugs. For example, on September 11, 2020, Palmer told Mr. Collins that he wanted to buy more cocaine. Mr. Collins was agreeable.

Yet, between September 11 and September 15, Palmer placed numerous calls and texts, to complete the transaction, that went unanswered. The defence submits that on September 21, Palmer applied pressure to Mr. Collins in respect to the gun deal when Palmer chastised him for ghosting him, i.e., not answering his texts, on the previous Friday, September 18. I do not accept that such language amounts to any pressure of any significance. In addition, Palmer used similar language on September 12 and 15th when he complained to Mr. Collins that he was unable to reach him with respect to setting up another drug buy.

In my view, it would have been odd for the undercover

officer on any of these occasions to not have not asked where Mr. Collins was. Mr. Collins gave Palmer a number of reasons regarding why he was sometimes unable to be reached: 1) he was out of town; 2) his phone was messed up; 3) he does not answer his phone when he was with his children; and 4) he was sleeping. None of these answers seem illogical. I do not see how Mr. Collins’ sometimes failure to answer or respond is indicative of anything or more critically, since we are looking at the conduct of the police, why Palmer should have believed that this indicated a lack of desire by Mr.

Collins to sell a gun, especially in the face of Mr. Collins assertions that he was willing to do so. 5) The defence submits that on September 29, Mr. Collins told Palmer via text that the gun deal was mashed up, in other words, not happening, and that it was wrong for the police to revisit the topic later on that day when Palmer met with Mr. Collins to buy fentanyl. I disagree. The term mashed up was, in my view, ambiguous enough that clarification was required. During their September 29 meeting all Palmer did was ask if this was a temporary or permanent problem.

According to Palmer’s uncontested evidence, which I accept, Mr. Collins said that it was a temporary problem resulting from the pandemic and the border restrictions. 6) Had Mr. Collins not wanted to arrange the transfer of a gun, then his conversation with Palmer on September 29 provided him with the perfect opportunity not to. He told Palmer that his contacts were not selling at the time. Palmer seemed to accept the situation and after that meeting, there were no more communications that night or the next day with Palmer. However, instead of walking away from the situation, Mr.

Collins, on his own initiative, reached out to Palmer on October 1 and said that he could get a gun. The defence submits that this about face resulted from the pressure that Mr. Collins faced from Palmer. I disagree. There is nothing in the evidence that shows that any threats, implicit or explicit, were placed on Mr. Collins. Nor do I see Palmer’s reference to making money from the sale of the guns to have any significance given the circumstances. The only reason for Mr. Collins to sell the guns was to make money. It is an obvious benefit to the transaction.

Furthermore, this is not a situation where the police were promising a massive payday to the target. 7) Mr. Collins’ did not simply call Palmer on October 1 and tell him that he could get a gun. Three days later, Mr. Collins told Palmer that he was calling his contact every day to make it happen. Two days later, though, that particular deal seemed to have fizzled. But Mr. Collins called Palmer on October 7 and then on October 8 to say that the deal was on. Again, Mr.

Collins had multiple opportunities to walk away but he chose not to, instead he was arranging the buy. 8) The defence submits that the robbery that occurred on October 8 showed that Mr. Collins was in over his head. That is possible, but that does not mean that police induced him into arranging for the transfer. [ 53 ] The test for entrapment requires the court to look through the lens of an average person in the accused’s position.

As stated in Mack at para. 116 “ to determine whether police conduct gives rise to this concern, it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused, i.e., a person with both strengths and weaknesses, into committing the crime.” [ 54 ] In my view, the police conduct in this case would not have induced the average person in the position of the accused, into committing the crime. The police were investigating Mr. Collins for selling drugs. During a drug deal, Mr.

Collins, on his own initiative, talked about selling guns to the undercover officer. The police were required to follow up. The police made a number of inquiries with Mr. Collins about obtaining guns while, at the same time, arranging for more drug buys. At no point did Mr. Collins say that he did not want to sell guns to the undercover officer. Two days after telling the undercover officer that his gun contacts had temporarily stopped selling, Mr. Collins reached out to the undercover officer and said that he could make a deal happen and then arranged for the meeting. There was no inducement.

The police merely provided the opportunity and Mr. Collins followed through. [ 55 ] The application is dismissed. _______________________________ The Honourable Justice H. Leibovich