R. v. [REDACTED]
Her Majesty the Queen, and
Ontario Superior Court of Justice
April 7, 2004.
Criminal law -- Controlled drugs and substances -- Possession or trafficking -- Defences -- Entrapment.
Motion by the accused, [REDACTED], for a stay of proceedings. A man approached an undercover police officer and told her that he was looking for marijuana. The officer replied that she did not have any, but was looking for some cocaine. The man took out a sheet of paper with the name [REDACTED] and a phone number written several times on it. He tore one set of contact information off and gave it to the officer, telling her to call that number and ask for [REDACTED]. The officer called the number the following day and was told that [REDACTED] was not there, but that [REDACTED] was. She made arrangements with the person on the phone to meet to purchase some cocaine. The officer eventually met [REDACTED] and another man. Before leaving, [REDACTED] invited the officer to contact him again, presumably if she needed more drugs. [REDACTED] argued that the police conduct amounted to entrapment because the police officer provided him with an opportunity to commit an offence without acting on a reasonable suspicion that he was already engaged in criminal activity or pursuant to a bona fide inquiry.
HELD: Motion dismissed. The police had a reasonable suspicion that a person using the name [REDACTED] or [REDACTED] was engaged in trafficking in drugs. They were acting in the course of a bona fide investigation. The reasonable suspicion arose from the officer's meeting the man who approached her, their conversation and the manner in which she was supplied with contact information. Tearing a name from a list and handing it over was the equivalent of supplying a business card.
[REDACTED], for the Crown.
[REDACTED], for the accused.
REASONS FOR JUDGMENT
1 Judge: [REDACTED]:-- The facts in this case are not seriously in dispute. Detective Constable [REDACTED] testified, and I completely accept her evidence, to the effect that on April 28th, 2003 she was on duty as an undercover police officer on Weston Road. While so employed, a black male approached her and told her that he was looking for some "spliff", that is, marijuana and that he was then going home. He asked her if she wanted to join him. She said, "No", but she wanted some "food" meaning cocaine. He told her he would be able to hook her up later. Then he took out a sheet of paper with the name [REDACTED] and a phone number [REDACTED], written several times on the list. He tore one off and gave it to her telling her to call that number and ask for "[REDACTED]".
2 On April 29th, 2003, the following day, Detective Constable [REDACTED] called the telephone number and said, "Hi, is [REDACTED] there?" The male who answered it had an accent and did not sound like the same person as the one she had met the previous evening. The male replied, "No", that is, '[REDACTED]' is not there. She then asked, "Is [REDACTED] there?" He replied, "Yeah. What are you looking for?" She replied, "Food", meaning cocaine. He asked, "How much?" She replied, "60". That is, $60.00 worth. He said, "Call me in a half an hour."
3 At 4:10 p.m., that is 46 minutes later, Detective Constable [REDACTED] called but no one answered the telephone. At 4:33, she called again. This time, they arranged to meet downtown at Dundas and Sherbourne and to make it a $100.00 buy rather than $60.00.
4 After several more telephone conversations, the officer finally met the accused and another man in the parking lot at Sherbourne and Dundas at which time she purchased 0.75 grams of cocaine for $100.00.
5 Before leaving, the accused invited her to contact him again presumably if she needed more drugs. As I indicated already, I am satisfied beyond a reasonable doubt that the accused is guilty on Counts 1, 2, 3 and 4. Count 5 is dismissed as not being supported by the evidence.
6 The only issue for me to decide this morning is whether or not the defence has established on the balance of probabilities that the police conduct in this case amounted to entrapment.
7 The Supreme Court of Canada in Mack v. The Queen 44 C.C.C. (3d) 513 summarized entrapment as follows:
"a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;
b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence."
8 Defence argues that entrapment has been established pursuant to Paragraph (a). I disagree. Entrapment did not occur in this case based on the information Detective Constable [REDACTED] was given on April 28th. She had reasonable suspicion that a person using the name "[REDACTED]" or [REDACTED] was engaged in criminal activity. That is trafficking in drugs. This reasonable suspicion arises from the facts the person she met on April 28th, her conversation with that person and the manner in which she supplied the name and telephone number from a list that contained the same name and telephone number repeated over and over.
9 Tearing such a name from the list and handing it to her as he did was the equivalent to supplying a business card. This was not a case of random virtue testing. This was an investigation directed on reasonable grounds to a person using the name "[REDACTED]" or [REDACTED] and had the telephone number supplied. The conduct of the accused in agreeing to selling the cocaine, attending at the site and completing the sale was not as a result of any unfair police practice. The police had reasonable suspicion and were acting in the course of a bona fide investigation.
10 The motion for a Stay of the prosecution is dismissed. The accused is convicted on Counts 1, 2, 3 and 4.