IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The accused, Terry Harvey Wing, pled guilty to trafficking in cocaine.  He alleges the conduct of the undercover officer induced him into committing this offence and therefore he applies for a judicial stay of proceedings.  In summary, he basis his application on the doctrine of entrapment.

[2]           A hearing was held on the issue of entrapment and evidence was received from Constable Woodland, who was the undercover operator, Constable Hilbourn, the observation officer, and from Mr. Wing, the accused.

[3]           This Court must consider the evidence and determine if it establishes on a balance of probabilities that Constable Woodland’s tactics induced Mr. Wing into committing the offence of trafficking.  

[4]           In R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, the Supreme Court of Canada reviewed the doctrine of entrapment and at page 959, the Court held that entrapment is established when one of the two scenarios is shown to have occurred:

[5]           The Court at page 966 provided a useful non- exhaustive list of factors that assists in determining if the police conduct induced the commission of an offence.  The factors are:

[6]           The onus is on the accused to establish on a balance of probabilities that the conduct of the state amounted to entrapment: Mack, at page 975. 

[7]           If the court is satisfied that the accused was induced to commit the offence, then the need for a judicial stay of proceedings is made out: R. v. Swan, 2009 BCCA 148 at paras. 46 - 48.

[8]           In the instant matter, Mr. Wing concedes the police were engaged in a bona fide inquiry but argues they went beyond providing Mr. Wing with the opportunity to commit the offence, rather, Constable Woodland’s conduct induced Mr. Wing into committing the offence of trafficking.

[9]           Constable Woodland has been a police officer for 9 years.  His policing experience includes patrol and some undercover drug work.  In 2004, Constable Woodland completed the Level 1 Undercover Operator course.  Since then has been involved in various street level undercover drug projects.

[10]        On December 5, 2016, Constable Woodland was assisting a team with an undercover drug project working in the downtown eastside.  The primary objective of the operation was to make street level drug purchases from known and suspected street level traffickers.  On this date, the team consisted of an undercover buyer, a road boss, a cover team, and the eye or observation officer. 

[11]        At 18:51 hours, the team held a briefing where it was decided that the objective for the evening was to make ten and twenty dollar purchases of cocaine or heroin from street traffickers operating in the 300 block of East Hastings Street.  On this occasion Constable Woodland was wearing a black toque, a light grey hoodie, dark grey sweat pants and black sneakers.  During cross-examination Constable Woodland denied that he was wearing a wig, but he agreed that he could have changed his hair style.

[12]        After the briefing Constable Woodland was driven into the area and dropped off at 19:00 hours.  He then made his way to the 300 block of East Hastings Street and where he spotted Mr. Wing.  According to Constable Woodland he decided to approach Mr. Wing because he was loitering and alone in an area known for drug trafficking.

[13]        It was Constable Woodland’s perspective that Mr. Wing appeared to be poor, drug addicted, aged and he looked like he lived on the downtown eastside.  At no time did Constable Woodland see Mr. Wing engage in interactions typical of street level drug transactions.

[14]        When Constable Woodland approached Mr. Wing the following conversation took place.

[15]        Mr. Wing then lifted his right hand and inside was a brown paper towel.  Mr. Wing unfolded the paper towel and inside were a number of blue translucent paper dime bags all of which appeared to contain crack cocaine.

[16]        Mr. Wing then began sorting through the dime bags and he said something to the effect of, all he had was crumbs and that he was waiting to be reloaded.  Constable Woodland then stated, “I’ll take a 20 if you’ve got it.”

[17]        Mr. Wing then removed a blue dime bag and placed it into Constable Woodland’s left hand.  Constable Woodland then gave Mr. Wing two five dollar bills and a ten dollar bill. 

[18]        Immediately thereafter, Constable Woodland signaled to his cover team that a transaction had occurred and he started walking west on the north side of the street.  He then heard someone yell, “For What?” and he turned around to see his cover team arresting Mr. Wing.

[19]        Constable Woodland then made his way to a cover car arriving at 19:27 hours.  Then at 19:30 hours he gave the drug exhibit to Constable Ng and at 19:32 hours he started his notes.

[20]        Constable Woodland was question by Crown regarding his dealings with Mr. Wing and he stated the conversation was in normal talking tones, that the accused appeared to be sober and there was nothing to suggest that the accused was cognitively impaired.  Constable Woodland estimates that he made contact with Mr. Wing at 19:17 hours and that after approximately one minute he signaled to his cover team that a purchase had been made.

[21]        During cross-examination Constable Woodland agreed that when he went out on this occasion that he tried to avoid being identified as a police officer and for this reason he dressed to look poor and like he was living on the street.  He also acknowledged that he was trying to give the impression that he was a drug addict and desperate.  Constable Woodland denied the suggestion that he was “tweaking” or “flailing” his arms.  He agrees that he was likely shaking as it was cold out.  He also denied making several approaches to Mr. Wing.

[22]        Constable Woodland was also questioned about the 300 block East Hastings Street and the surrounding area.  He acknowledged that the area has high incidents of violence, that a number of robberies occur there and that it is not uncommon for addicts or dealers to carry weapons.

[23]        It was suggested to Constable Woodland that the accused’s action of showing the drugs in the paper towel to him was atypical of a drug dealer.  Constable Woodland responded by indicating that the accused did not show him the drugs, rather he was able to see the drugs from his positon.  Constable Woodland did acknowledge that prior to this event that he has never engaged in a discussion with a street dealer about crumbs and reloading.

[24]        Counsel also suggested to Constable Woodland that he was interacting with Mr. Wing for almost 10 minutes.  Constable Woodland maintained that the interaction was for two minutes at the most and he denied that he approached the accused 5 or 6 times.  He also denied that he was acting erratically or being so persistent that he was making it clear that he would not leave unless Mr. Wing sold him cocaine.  Constable Woodland also confirmed he did not raise his voice, nor, was he angry when asked if he was a police officer.

[25]        Finally, while being challenged regarding his memory of the transaction, Constable Woodland emphasized that the transaction stood out in his mind because he was surprised that Mr. Wing sold to him despite suggesting that Constable Woodland was a police officer.

[26]        Constable Hilbourn has 11 years of policing experience.  In this regard, he has worked in various positions and in December 2014, he was assigned to a patrol unit that worked in the downtown eastside.

[27]        On December 5, 2016, Constable Hilbourn’s squad was engaged in an undercover operation.  Constable Hilbourn’s task was to be the observation officer.  As such, it was his responsibility to keep the undercover officer in his view at all times and to relay material information to the cover and arrest team.

[28]        At 19:03 hours, Constable Hilbourn watched as Constable Woodland made his way from Keefer and Columbia to the 300 block of East Hastings Street where he interacted with Mr. Wing.  Constable Hilbourn testified that the interaction was for less than a minute and it involved a hand to hand transaction followed by Constable Woodland making a pre-arranged signal indicating that he had made a drug purchase.

[29]        Counsel for Mr. Wing challenged Constable Hilbourn on whether or not the transaction took longer than a minute.  Specifically, counsel pointed out that Constable Hilbourn had no notes and suggested that his fellow team members influenced his time estimate.  Constable Hilbourn responded by refreshing his memory from his report, which he made shortly after the event, and he testified that he wrote what he recalled happening which was a buy signal being given within a minute of Constable Woodland first interacting with Mr. Wing.

[30]        Counsel also suggested to Constable Hilbourn that Constable Woodland actually approached Mr. Wing on several occasions, Constable Hilbourn responded by indicating that he could not recall this happening.

[31]        Mr. Wing is 56 years old and he lives in a hotel located on the edge of the downtown eastside.  For the past two years Mr. Wing has suffered from a hernia and he is waiting for surgery.  Mr. Wing is on social assistance and supplements this with money he earns from collecting cans and bottles and helping unload trucks in the immediate area.  Mr. Wing uses crack cocaine to manage his pain.  He has been doing this for approximately 2 years.  In cross-examination Mr. Wing clarified that he purchased a 20 or 40 rock of cocaine once or twice per week.  He also testified that there were some days where he would smoke 3 pieces of cocaine in a day.

[32]        As for his background, Mr. Wing confirmed he has a criminal record.  His record commences in 1981 and his last conviction was in October of 2014.  A review of Mr. Wing’s criminal record confirms he has 4 convictions for break and entering, 6 property offences, 9 assault convictions, 1 conviction for using a forged document, and various convictions for breaching court orders, mischief and obstruction of justice.

[33]        With respect to the events leading to Mr. Wing being charged, he testified that he had purchased 4 ten dollar baggies of rock cocaine for thirty five dollars and that the cocaine was for his personal use.  Shortly after this purchase Mr. Wing smoked some of the cocaine.  He then began making his way home which necessitated walking through the 300 block of East Hastings Street. 

[34]        While walking in the 300 block of East Hastings Street, Mr. Wing stopped to speak to a friend and it was at this point that a male, now known to be Constable Woodland, approached Mr. Wing and his friend.  Mr. Wing described Constable Woodland as having long hair blonde/brown hair and wearing a yellow t-shirt and ball cap.  According to Mr. Wing, Constable Woodland then asked if he had anything for sale.  Mr. Wing responded by saying, “I’m not selling anything I am not a dealer or anything.”

[35]        Constable Woodland repeated his question and Mr. Wing indicated that he was not selling anything.  Constable Woodland then walked away and he returned within a minute and asked, “Have you got anything?” and Mr. Wing responded, “no.”  Thereafter, Constable Woodland walked around in circles.  At one point he stopped and looked into the window of a restaurant, he then suddenly turned and with his arms flailing said, “I really need something.”  Mr. Wing described Constable Woodland’s voice as being stronger and “sort of” aggressive sounding.

[36]        Mr. Wing then told Constable Woodland, “I told yah I don’t have anything.  What are you a cop?”  At which point Constable Woodland leaned in toward Mr. Wing and said, “Are you a fucking cop?”  When Mr. Wing was asked why he questioned Constable Woodland in this manner, Mr. Wing explained that is was after he (Constable Woodland) kept coming back, and it was a figure of speech which “more or less” popped out.

[37]        Thereafter, Constable Woodland walked away and started looking in store windows.  At this stage Mr. Wing noticed that Constable Woodland was twitching and swinging his arms.  He then approached Mr. Wing a further 5 or 6 times, and while flipping his head around he, “I really needed something.”  Mr. Wing described Constable Woodland as, jumping and twitching with bulging eyes and at times he stared at people in a nearby restaurant.  Mr. Wing felt that the undercover officer appeared to be “spaced” out.

[38]        According to Mr. Wing, Constable Woodland made him nervous and scared.  Mr. Wing testified he has seen people get stabbed and become involved in fights for refusing to sell drugs.  Mr. Wing decided to sell cocaine to Constable Woodland just to get rid of him.  Mr. Wing testified that he had not been planning on selling cocaine, rather, he only sold the cocaine to Constable Woodland for the purpose of getting rid of him.

[39]        During cross-examination, Mr. Wing explained that his friend walked away just after Mr. Wing questioned Constable Woodland about being a police officer and that this was about a minute and a half after Constable Woodland first approached.  Mr. Wing also testified that the entire transaction was 4 to 5 minutes and later he testified that it was 5 to 6 minutes.  He denied that the transaction took a minute. 

[40]        As for the movements of the undercover officer, Mr. Wing testified that when Constable Woodland moved away that there was a distance of approximately 18 to 20 feet between them.  Mr. Wing testified that the undercover officer would be facing him but looking in the windows.  During cross-examination Mr. Wing also added that the undercover officer said to him, “I know you must have something.”  Mr. Wing also clarified that after the “cop” comments he told the male that he did not want to sell and that he was not selling.

[41]        Mr. Wing was questioned about his positioning and he indicated he kept his back to the building.  He stated that the restaurant that the officer was looking into was open and that there were people inside.  He also noticed that were people who were selling things on the street and that they were about 20 to 30 feet away from him. 

[42]        Mr. Wing was also questioned about why he did not simply walk away, and he indicated that it was not safe to do so.  He testified he kept his back to the building so that he could keep an eye on Constable Woodland.  Mr. Wing also confirmed that he never asked for help from the people on the street nor, did he go into the nearby restaurant.

[43]        During cross-examination, Mr. Wing was asked questions about the first words spoken by Constable Woodland and in response Mr. Wing indicated, on first contact Constable Woodland immediately asked if he had a “10 rock.”

[44]        Mr. Wing was also questioned about why he placed the twenty dollars that he received from Constable Woodland in his right sleeve pocket and he indicated it was easy to put it into his sleeve pocket and if he placed it in his other pocket that he might get robbed.

[45]        Pursuant to s. 655 of the Criminal Code, admissions of fact were filed as Exhibit 1.  The significant admissions are as follows:

[46]        Counsel for Mr. Wing argues that Constable Woodland induced Mr. Wing into trafficking cocaine.  Specifically, Constable Woodland’s persistent and erratic conduct caused Mr. Wing to be fearful, thus inducing Mr. Wing into the offence of trafficking.

[47]        In support, counsel highlights Constable Woodland’s repeated and persistent attempts at making a purchase, the implied threats as derived by his body language, all occurring in a neighbourhood marked with drug violence.  Counsel also urges the court to find support for entrapment owing in part to, the absence of evidence indicating that Mr. Wing was on the street for the purpose of trafficking.  In this regard, there is no evidence of hand to hand transactions or of multiple short meets.

[48]        In summary, counsel argues that the cumulative evidence shows, but for the persistence of Constable Woodland, Mr. Wing would not have agreed to sell cocaine.

[49]        The Crown argues that Mr. Wing’s evidence should be rejected owing to a number of internal and external inconsistencies.  Specifically, the Crown points out that Mr. Wing’s evidence changed on the timing of the events and on what the male (the undercover officer) said to him when they first made contact.  The Crown also argues that the evidence of the officers was reliable and consistent and should be preferred over that of Mr. Wing’s testimony.

[50]        After considering Mr. Wing’s evidence, I find his credibility wanting and therefore I reject those portions of his evidence that are in conflict with Constable Woodland’s testimony.  My reasons for rejecting Mr. Wing’s evidence are multiple and based on the totality of his testimony.

[51]        Specifically, I noted Mr. Wing changed his evidence on what was said to him when Constable Woodland originally approached.  During direct examination Mr. Wing testified that Constable Woodland originally asked him if he had anything for sale, yet on cross-examination he testified that Constable Woodland first asked Mr. Wing if he had a “10” rock.

[52]        A further difficulty with Mr. Wing’s evidence was the flexibility of his time estimates.  He originally, testified that 4 to 5 minutes passed between the undercover officer first speaking to him and the sale of the cocaine.  Mr. Wing was then asked if the time could have been a minute and he answered that it was at least 5 to 6 minutes.  He then offered that it felt like 10 minutes.

[53]        A further problem with Mr. Wing’s evidence is that the details appeared to change.  For example, during cross-examination Mr. Wing stated, for the first time, that Constable Woodland said “I know you must have something.”

[54]        An additional concern with Mr. Wing’s evidence is that it simply does not align with common sense.  If Mr. Wing was truly afraid and scared, common sense is that he would try and seek help from the patrons in the nearby restaurant or from those on the street.  At a minimum one would have expected him to ask his friend to wait around.

[55]        Other concerns with Mr. Wing’s evidence includes, his explanation for asking Constable Woodland if he was a police officer, the placement of the money and finally the fact that he shorted Constable Woodland on the purchase.

[56]        Turning to Mr. Wing asking Constable Woodland if he was a police officer, the evidence received indicated that asking a person on the street if they were a police officer is an insult, as such, it makes no sense that, Mr. Wing who claimed to be scared of Constable Woodland, would risk antagonizing him by asking such a loaded question.

[57]        As for the placement of the money, Mr. Wing testified he placed the money he received from Constable Woodland in his sleeve pocket because it was easy and because there was a risk that someone could reach in his pocket and take the money.  If this were true, it makes no sense that Mr. Wing felt secure enough to place his other monies, $70.00, in his front jacket pocket.

[58]        Finally, if Mr. Wing was truly afraid of Constable Woodland one would expect that he would do everything to avoid a conflict including not over-charging Constable Woodland for the cocaine.  Instead, Mr. Wing took the risk and shorted Constable Woodland by charging him $20 for $10 worth of cocaine.

[59]        Another feature which bears some impact on Mr. Wing’s credibility is his criminal record.  In this regard, I have only considered his criminal record in relation to his credibility and I caution myself that is not to be used for any other purpose.  With these principles in mind, I note.  Mr. Wing’s criminal record is lengthy, dated, and it contains entries for honesty related offences.

[60]        I found that Constable Woodland was a credible and reliable witness.  In this regard, his evidence was internally and externally consistent.  Significantly, his evidence of the transaction being two minutes at most is consistent with Constable Hilbourn who recalled the transaction being one minute in duration and it is consistent with the length of conversation as described by Constable Woodland.

[61]        I also noted Constable Woodland was a careful witness who was attentive to detail.  An example of this is he took care in preparing his notes such that he was able to distinguish between what Mr. Wing actually said and the gist of what was said.

[62]        A further observation is, Constable Woodland had a good memory of the events and the reason he provided for this was that he was surprised that Mr. Wing sold to him despite thinking that he was a police officer.  Lastly, I was impressed with the steps that Constable Woodland took to preserve his memory of the transaction in that he made notes within 12 minutes.

[63]        Counsel for Mr. Wing challenged Constable Hilbourn’s reliability on his belief that the transaction occurred within a minute.  Specifically, counsel highlighted that Constable Hilbourn’s recollection might have been influenced by discussions he had with other officers.  Constable Hilbourn acknowledged the discussions, however, he indicated that he wrote in his report that the transaction occurred within a minute because that is what he recalled.  On this basis it seems entirely speculative that the discussion involved timing influenced Constable Hilbourn’s recollection.  Accordingly, I find Constable Hilbourn’s time estimate to be reliable.

[64]        After considering all of the evidence that I accept, I make the following findings of fact:

[65]        In considering if the evidence satisfies me that Mr. Wing was induced into selling cocaine, I turn to the factors as set out in Mack at page 966.

[66]        According to the Agreed Statement of Facts, the project at issue was focused on open-air drug trafficking, with the objective of the immediate suppression and disruption of illicit drugs.  In my view it would appear that immediate suppression of the street level trafficking occurs when an arrest is made immediately upon a transaction having occurred.  As such, I am not able to envision other reasonable alternatives to the technique employed in the instant case.

[67]        I am not satisfied that a single approach and conversation as described by Constable Woodland would induce an average person in the position of the Mr. Wing into trafficking.  I make this finding because there was nothing in the evidence that was accepted to suggest that Mr. Wing had any unusual characteristics that would render him vulnerable to trafficking cocaine on simply being approached and asked if he was selling.

[68]        Constable Woodland’s accepted evidence was that he approached the accused on one occasion and that the transaction completed within a minute or two.  In the circumstances I am unable to conclude that Constable Woodland was persistent.

[69]        At most the only trickery used was that Constable Woodland attired himself in a manner that portrayed himself as a drug addict.  In the context, I do not view this as significant because there is nothing to suggest that doing so induced Mr. Wing into selling cocaine versus it provided him comfort in believing that he was not selling to an officer.  Essentially, Constable Woodland’s attire had some influence on whether or not Mr. Wing was going to sell to the constable and not on his decision to sell cocaine generally. 

[70]        I find that the police became involved in Mr. Wing’s activities and that they did not instigate the offence.  Specifically, Mr. Wing although not actually transacting drugs at the moment he was approached, he was partially already engaged in the offence.  In this regard, he was loitering in a drug trafficking area, he had a quantity of drugs on his person and the drugs were in smaller baggies.

[71]        There is no evidence that Constable Woodland exploited Mr. Wing’s human qualities.  I make this finding based on the duration of the interaction, the contents of the interaction and because the two were previously unknown to each other.

[72]        The only evidence related to any vulnerability that Mr. Wing may have had was evidence of his drug use and Constable Woodland’s observation that Mr. Wing appeared to be a drug addict.  Although Mr. Wing testified about his drug use, the information was short of establishing that he was an addict and that this characteristic was somehow exploited to the extent that that Mr. Wing was induced into trafficking.  In fact, I observe that despite his cocaine use, Mr. Wing displayed attentiveness in that ensured he received the correct monies for the correct amount of product, that he safely stored his funds and that he discarded his drugs when the police approached him.  I acknowledge that these observations are after the offence was committed, nonetheless, they assist in evaluating if Mr. Wing displayed any vulnerability.

[73]        I find Constable Woodland’s involvement and Mr. Wing’s involvement to be relatively equal.  In this regard, Constable Woodland made the approach and the request, and he also received and paid for the cocaine.  Whereas, Mr. Wing made himself available, he responded to the request, he transferred the cocaine and he received the money.

[74]        There is nothing within the accepted evidence to suggest that Mr. Wing was the recipient of any express or implied threats.

[75]        There is nothing in the accepted evidence to suggest that the police actions were directed at undermining constitutional values or principles of fairness.  The simple facts are, Constable Woodland saw Mr. Wing alone and loitering in an area known for drug trafficking, Constable Woodland approached Mr. Wing and then within a two minute time span they engaged in a non-threatening conversation which culminated in Mr. Wing selling cocaine to Constable Woodland.

[76]        For the reasons provided, I find that Mr. Wing has failed to establish on a balance of probabilities that the conduct of Constable Woodland induced him into committing the offence of trafficking.  Accordingly, the application for a judicial stay of proceedings on the basis of entrapment is denied.