IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Gursimar Singh Bedi has pled guilty to two counts of trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act. He now applies for a judicial stay of proceedings on the ground that convicting him of these offences would be an abuse of process.

[2]           An undercover police officer bought cocaine from Mr. Bedi after making telephone calls to a dial-a-dope number. The defence does not argue that police entrapped Mr. Bedi. However, the defence says that prosecution of Mr. Bedi is an abuse of process because:

[3]           Defence counsel Mr. Patey argues that these facts constitute “derivative entrapment” making prosecution of Mr. Bedi an abuse of process. He acknowledges that this “derivative entrapment” argument is a novel one for which there is no direct precedent in Canadian jurisprudence.

[4]           In R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, the Supreme Court of Canada identified two types of entrapment that, when established by an accused person, call for a judicial stay. This case involves the first type: the defence submits that police provided the unknown male an opportunity to commit an offence without having a reasonable suspicion that he was involved in criminal activity.

[5]           The issues framed by counsel are whether Mr. Bedi has established that the initial call constituted entrapment, and if so, whether it was sufficiently linked to the prosecution of Mr. Bedi that convicting him would bring the administration of justice into disrepute and abuse the processes of the Court.

[6]           I conclude that the initial call was not entrapment. If it were, and if a doctrine of derivative entrapment could be applied, I would find that Mr. Bedi’s prosecution was not sufficiently linked to the initial call to warrant a stay of proceedings. What follows are my reasons for reaching these conclusions.

[7]           The facts relevant to this issue are as follows. Sgt. Desrosiers read a “Swan report”, describing a tip about a drug line and steps taken to confirm it, and attended a briefing meeting on September 29, 2011. She knew from the report that a Confidential Informant had told Cpl. Foster of the Integrated Gang Task Force about a drug line and provided the following details:

[8]           She also knew that Cst. Murray, who wrote the Swan report, had attempted to corroborate the Confidential Informant’s information two days earlier and had discovered that:

[9]           Acting on the direction of Sgt. Desrosiers, at 12:21 p.m. on September 29, 2011, Cst. Huff telephoned the target number and had the following conversation with an unknown male (“the male”):

[10]        Mr. Bedi argues that Cst. Huff engaged in random virtue testing because Sgt. Desrosiers, who directed the investigation, lacked sufficient information to form a reasonable suspicion that the person using the target number on September 29, 2011, was engaged in drug trafficking and Cst. Huff did not obtain confirming information during the telephone call before offering an opportunity to traffic. The Crown disagrees.

[11]        I accept the Crown’s submission that Cst. Huff did not engage in random virtue testing when he offered the unknown male an opportunity to sell him drugs for the following reasons.

[12]        In this context, "suspicion" has been defined as “an expectation that the targeted individual is possibly engaged in some criminal activity”. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. The standard for reasonable suspicion is not “unduly onerous” and it is “necessarily …low”. It has been called an intermediate standard, “less demanding … than reasonable grounds”. However, it is not a hunch. It requires that a police officer’s subjective belief be accompanied by objectively verifiable evidence. (R. v. Williams, 2010 ONSC 1698 (SCJ) (Hill J.) para. 44, cited with approval by Donald J.A. in R. v. Olazo, 2012 BCCA 59, and included as Appendix A.)

[13]        When assessing reasonableness, a judge must consider the totality of circumstances viewed as a whole. In this case, those circumstances comprise the tip, confirming information, and a portion of Cst. Huff’s call to the target number.

[14]        Sgt. Desrosier’s suspicion was based on the tip and the corroboration obtained by Cpl. Murray, as set out in the Swan report. The tip here was detailed. It included first and last names, a second phone number, drugs sold, and an approximate location of a stash house. Because the informant’s reliability was unknown, confirmation of some objective information in the tip was required, and steps were taken to confirm the tip. The target number was found to be in service and answered by a male. The names given by the informant were found to have been associated with drug investigations although the dates of those investigations were not provided.

[15]        The defence argues that the Swan report in this case lacked various details, the corroborative steps were insufficient, and Sgt. Desrosiers could have taken other steps to determine the reliability of the Confidential Informant or to confirm the tip. With regard to the last point, I note that confirmation of some objective aspect of the tip can create a reasonable suspicion when the informant’s reliability is unknown (Olazo para. 17). With regard to the Swan report’s omission of the date when Cpl. Foster received the tip, confirmation that the target number was in service on September 27 made the lack of a specific date for receipt of the tip less significant.

[16]        It is true that taken alone, the Ruhl brothers’ prior police involvement is not sufficient to provide reasonable suspicion, but it can be relevant if linked to other factors as it is here (Mack paras. 112 and 128). Without dates of the Ruhls’ involvement in drug investigations, the tip and confirmation in this case may fall short of constituting a basis for reasonable suspicion. However, the tip was certainly sufficiently specific and detailed to justify Sgt. Desrosiers’ direction to Cst. Huff to make the call. 

[17]        If Sgt. Desrosiers lacked reasonable suspicion when she directed Cst. Huff to call the target number, I find that he obtained information in the preliminaries of the call that raised the level of suspicion to reasonable. Both the decision of the B.C. Court of Appeal in Olazo and a rational analysis of the call lead me to that conclusion.

[18]        Speaking for the Court in Olazo, Donald J.A. summarized the case law on this issue, stating that:

[19]        In R. v. Imoro, 2010 ONCA 122, affirmed by the Supreme Court of Canada 2010 SCC 50, an undercover officer investigating a tip had an in-person conversation in which opening words of “Can you hook me up?” were held to be part of the drug investigation.  The opportunity to commit a crime was found to arise only “when the parties got down to the deal”.

[20]        The B.C. Court of Appeal applied Imoro in Olazo, a case involving a tip from a motorist who wanted to avoid losing his driver’s licence. The motorist said an active drug line was operating 24/7 in North Delta and Surrey with men named Dave and Chris working different shifts, one being Chinese or Hispanic, and using a Chevy Cavalier and a gold Ford Explorer. No steps were taken to confirm any of this information before an officer called the number provided by the motorist at 2:00 a.m. The officer asked the male who answered “can you meet me?” or “where are you?” and asked if he could “do a half”. The male replied that he could “do two 40s”.

[21]        The Court found that answering the call at 2:00 a.m. and responding positively to the opening queries expressed in terms familiar to traffickers but otherwise obscure confirmed the tip in two important ways, providing the reasonable suspicion required before the officer could offer an opportunity for a drug transaction.

[22]        I consider the facts in this case to be analogous to those in Olazo. Here, as in Olazo, the initial question designed to set up a deal, if the recipient of the call was willing, can be seen as an investigative step rather than opportunity. Although the timing of the call is not significant in this case, Cst. Huff’s opening query (asking if the male was around as he needed an 80) was expressed in terms familiar to drug traffickers but obscure to ordinary people. The male responded in a manner that showed he understood. He did not reply in any of the ways a person not involved with trafficking might. He asked if the caller wanted marijuana. At that point, Cst. Huff acquired a reasonable suspicion that he was speaking to a person engaged in trafficking and he could proceed to offer the male an opportunity to commit an offence.

[23]        The defence submits Olazo should be distinguished because the officer in that case testified to the conversation in general terms only. However, while the officer in Olazo said she could recall the conversation in general terms, her testimony about the salient parts was actually specific. She testified that she said either “Can you meet me?” or “Where are you?” and asked if he could “do a half”.

[24]        Mr. Bedi also argues that Cst. Huff’s statement he “needed an 80” constituted the offer to commit a crime that gave rise to entrapment rather than an investigative preliminary. He relies on R. v. Swan 2009 BCCA 142, R. v. Motevalli, BCPC, file # 87446-1, Port Coquitlam Registry, June 20, 2013, and various Ontario trial decisions (R. v. Williams 2014 ONSC 2370 (SCJ)(Trotter J.), R. v. Marino-Montero, [2012] O.J. No. 1287(SCJ), R. v. Thorington ,[2012] O.J. No. 5052 (CJ), R. v. Izzard, [2012] O.J. No. 2516 (SCJ)) in which statements like “I need 80” were found to constitute offers. 

[25]        Only two of those cases are B.C. decisions. In Swan, police made “cold calls” to phone numbers collected as possible dial-a-dope lines with “a bare minimum of information regarding the telephone numbers compiled, and with a complete disinterest in distinguishing between anonymous tips written on a matchbox or napkin, and more reliable tips providing further information about a particular suspect or telephone number” (para. 36). In those circumstances, the B.C. Court of Appeal deemed an undercover officer’s statement that she needed “40 up” to be a solicitation for cocaine without the requisite reasonable suspicion.

[26]        However, Swan pre-dated Olazo and the Supreme Court of Canada decision in Imoro. In Olazo, Donald J.A. applied Imoro and distinguished Swan because in Swan police had “virtually nothing to go on before they made their cold calls”. It was very clear the police methodology in Swan was random virtue testing that could not be condoned by the Court.

[27]        The B.C. Provincial Court decision in Motevalli can be distinguished because the tip was much less detailed and unlike Olazo and the case at bar there was no initial query like “Are you around?”, “Can you meet me?”, or “Where are you?”.

[28]        As a decision of the B.C. Court of Appeal, Olazo is binding on me. The decisions of Ontario trial courts that have adopted a different analysis are not. Moreover, the defence acknowledges that each case depends on its facts. Marino-Montero, Williams and Thorington can be distinguished because there was no confirmation of the tip before the call. Moreover, in Thorington there was no initial investigative question to determine whether the person telephoned was currently selling drugs; in Williams there was nothing to establish a link between the person of interest targeted by the investigation and the person named in the tip.  And in Izzard, there was no confirming information linking the suspect to drug trafficking, such as evidence he’d previously been involved with drugs.

[29]        The Crown cited R. v. Ralph, 2014 ONCA 3 (CanLII) where an undercover officer acting on a tip called the accused and, after some discussion about the caller’s name and how he got the accused’s number, said:  “I need product.” The accused responded by asking: “Okay, so what are you looking for?  What do you need?”  The Ontario Court of Appeal upheld the trial judge’s decision that entrapment had not been established. The Court likened the words “I need product” to “Can you hook me up?” in Imoro and found them to be a legitimate investigative step.  It considered the appellant’s response together with the anonymous tip to be sufficient to provide the officer with reasonable suspicion and justify an offer.

[30]        I note that with the exception of Swan, a true case of random virtue testing, the appellate decisions cited by counsel all take a more restrictive view of entrapment than the trial decisions cited by the defence.

[31]        The conflicting decisions on what language constitutes an offer rather than investigation may seem difficult to reconcile. On one hand, statements like “I need 80”, “I need 40 up”, “I need 6 greens”, “I need half a B”, and “I’m looking for a quarter. You got the good stuff, right?” have been found to be offers to commit an offence. On the other, statements or questions such as “I need product”, “Can you hook me up?”, “Are you around?”, “Can you do a half?” and “Where are you?” have been ruled legitimate investigational steps.

[32]        Acknowledging that the distinction between these statements might appear subtle, Trotter J. in Williams attempted to find a rational basis for the distinction.  He suggested that statements in the first category involved requests to buy a specific quantity of drugs to which the accused need only reply “yes” to conclude a deal. In contrast, he suggested that statements in the second category were less definite and more exploratory, requiring development and exploration before a deal could be made.

[33]        Identifying a rational basis for analyzing the language used in undercover dial-a-dope calls is preferable to simply labelling certain questions as offers or investigation. Undertaking a rational analysis is also consistent with the requirement to assess the reasonableness of a suspicion in context, considering the totality of the circumstances.

[34]        Cst. Huff’s testimony characterizing his opening query as an offer to purchase is not determinative of the issue because he also characterized it as an attempt to determine whether the unknown male had crack and an attempt to maintain credibility as a street level drug user. More significantly, I must assess the circumstances objectively and in context.

[35]        Trotter J.’s analysis is helpful and it makes sense. Applying his rationale, Cst. Huff’s question asking if the male was around as he needed an “80”, was exploratory. Its first part enquired whether the male who answered the call was available. In its second part, although Cst. Huff intended the words “an 80” to refer to crack cocaine, he only mentioned a quantity and did not specify the type of drug needed. The male could not simply answer “yes” to Cst. Huff’s preliminary question and conclude a deal. The initial question here thus fits in the second category and constitutes investigation. The male’s reply exploring the type of drug needed was consistent with the tip that the drug line dealt with more than one type of drug. The male’s response confirmed the tip and provided reasonable suspicion.

[36]        It is important that the test laid out in Mack not be applied “mechanically” (R. v. Benedetti, 1997 ABCA 169 (CanLII), para. 19). When courts engage in microscopic analysis of the language used by undercover officers investigating drug trafficking, they should also raise their eyes from the microscope to consider the broader picture – the rationale for the doctrine of entrapment. This doctrine has developed in order to ensure that the administration of justice is not tainted by disrepute resulting from judicial condonation of police conduct that violates our notions of “fair play” and “decency”. In the entrapment context, the court’s sense of justice is offended by the spectacle of an accused being convicted of an offence that is the work of the state (Mack paras. 71 to 78).

[37]        In R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 SCR 128, the Supreme Court of Canada held that a trial judge has a residual common law discretion to stay proceedings where compelling an accused to stand trial would violate the fundamental principles of justice underlying the community's sense of fair play and decency, although it is a power which can be exercised only in the "clearest of cases".

[38]        The law of entrapment has developed as a specific category of abuse of process. Entrapment necessarily brings the administration of justice into disrepute, so once it is established, a stay is required (Swan paras. 46 – 48, citing Mack para. 148). However, the “defence” of entrapment should be recognized only in the clearest of cases. The onus lies on an accused person to demonstrate that police conduct has gone beyond permissible limits to the extent that allowing conviction would amount to an abuse of the judicial process by the state. (Mack paras. 148 and 149).

[39]        In some of the Ontario cases, judges seemed somewhat reluctant to enter stays, although they considered themselves bound to do so after finding entrapment proven. I respectfully suggest that although a stay is necessary once entrapment is found, before a finding is made, there should be consideration of whether the facts amount to the clearest of cases and whether police conduct has gone beyond permissible limits to the extent that prosecution amounts to an abuse of process.

[40]        Omitting assessment of whether the circumstances constitute the clearest of cases before finding entrapment ignores that important limit on the judicial power to stay abusive proceedings. It removes the judicial discretion required to balance the concepts of fairness and justice with society’s need for protection from crime. Without this assessment any case of entrapment, no matter how minor the police transgression, leads automatically to a judicial stay, creating an anomaly in the law of abuse of process.

[41]        Even if the defence submissions about reasonable suspicion could be accepted and Cst. Huff’s initial query could be considered an offer, viewed as a whole, the police conduct in this case would not violate notions of fair play and decency. It was not random virtue testing like the cold calling in Swan. There was a detailed tip and an attempt to corroborate it before the call was made. The circumstances here would not go beyond permissible limits to the extent that had the unknown male been identified and prosecuted his conviction would amount to an abuse of process by the state.

[42]        In a novel and well-presented argument, the defence submits that if the initial call constituted entrapment, Mr. Bedi’s prosecution would be so inextricably linked with it that convicting him would amount to abuse of process requiring a judicial stay.

[43]        The argument is based on two propositions:

[44]        In Castro, the B.C. Court of Appeal held that the appellants had standing to argue the illegality of police conduct in another investigation because that investigation was intended to produce and did produce evidence leading to their prosecution. The Court said the illegal police conduct in the first investigation formed a sufficiently close link with the appellants’ prosecution that it could reasonably be argued their prosecution was tainted with the illegality of the first investigation. The Court noted that whether it amounted to an abuse of process requiring a stay would be for the trial judge to decide.

[45]        The defence acknowledges that there is no precedent for a judicial stay of charges against one accused because of entrapment of another person. However, Mr. Bedi argues that the doctrine of entrapment is focused on police misconduct rather than on individual rights. Juxtaposing Castro and the line of cases involving stays of multiple drug transactions by the same person, he submits that where prosecution of an accused is sufficiently linked to police entrapment of another person, the prosecution of the accused may be stayed as abuse of process.

[46]        If I am wrong and the unknown male was entrapped in the initial call, and if the doctrine of entrapment could be extended in this fashion, I do not consider that the facts here create a sufficient link between the circumstances of the initial call and Mr. Bedi’s drug transactions to warrant staying the charges against him.

[47]        The initial call and the resulting drug purchase were made on September 29, 2011. During the next four months Cst. Hull made seven more calls that led to cocaine purchases, using the target number. It was not until February 3 and 15, 2012, that he bought cocaine from Mr. Bedi after calling the target number for the ninth and tenth times. 

[48]        In Castro the first, illegal, investigation produced evidence leading to the prosecution of the defendants. Here, the defence asserts that no independent reasonable suspicion was obtained by police after the initial call, so reasonable suspicion for subsequent calls was based on the initial call. However, the evidence does not establish this. There is no evidence of the contents of the seven intervening calls. Without that evidence I am not able to assess whether anything in the calls confirmed the tip and provided independent reasonable suspicion.   

[49]        The defence is left to rely on the similarity of investigators, target number, project name, and police file number. If the unknown male had been entrapped in the initial call, those similarities would not constitute a sufficient link to justify staying trafficking charges against Mr. Bedi as an abuse of process.

[50]        Because I have found neither an initial entrapment nor an inextricable link with Mr. Bedi’s prosecution, I need not consider whether the concept of derivative entrapment might be applied in other circumstances.

[51]        Having found no abuse of process, I dismiss Mr. Bedi’s application for a judicial stay of proceedings.