IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Mr. Gibbs is before this Court pursuant to Information 48892-1 alleging that on August 29, 2018, he did unlawfully traffic in controlled substances to wit: heroin, fentanyl and methamphetamine and that additionally on August 30, 2018, he did unlawfully traffic in methamphetamine.

[2]         The trial of this matter spanned three days commencing on January 18, 2021. In summary, officers targeted the area of the 7-Eleven located at 20^th Avenue and Spruce Street in Prince George, British Columbia. Two undercover officers, Corporal Perret and Constable Bonner-Corriveau, who are not from the Prince George area, approached Mr. Gibbs and purchased drugs from him in exchange for cash on August 29 and August 30, 2018. Mr. Carleton represented throughout the proceedings that he intended to argue entrapment. Both counsel submitted that structurally, such argument ought to be advanced only after a determination of guilt has been made, and it was agreed that this was the correct approach. At the conclusion of the Crown’s case, Ms. Murray for the Crown pressed this Court to convict Mr. Gibbs of the offences at hand, and Mr. Carleton was not opposed. Mr. Gibbs was summarily convicted of all counts on the basis of the body of evidence before this Court. Counsel agree that the onus is on the accused to establish on a balance of probabilities that the conduct of the state is an abuse of process because of entrapment. Mr. Carleton, on behalf of Mr. Gibbs submits there was entrapment. Ms. Murray for the Crown demurs. This is the Court’s decision on that issue.

[3]         The law of entrapment was rigorously developed and settled pursuant to the seminal decision of R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 SCR 903. Recently the Supreme Court of Canada has revisited this issue in R. v. Ahmad, 2020 SCC 11 (CanLII), 2020 SCJ No. 11.

[4]         The doctrine of entrapment reflects a balancing of the competing ideologies of effective law enforcement and the right of Canadian citizens to be free from capricious police investigation and/or state inducements, generating crimes ex nihilo, see Ahmad, paras. 1-2:

[5]         Entrapment encompasses two branches, see Mack at page 959:

[6]         Counsel agree that themes of inducement are not present in this case and neither party made submissions with respect to this second type of entrapment. Mr. Carleton submits that it is the first branch of entrapment that applies here, to wit: that the police engaged in random virtue testing of Mr. Gibbs.

[7]         This first prong of entrapment is developed and summarized at paras. 19 and 20 of Ahmad:

[8]         Not only do counsel disagree with respect to whether there was entrapment, but they are also sharply divided as to the structure of the argument and what evidence ought to be considered when deciding whether the police had reasonable suspicion. Both lawyers agree that a nuanced analysis of Officer Atkinson’s evidence is required as he was the lead investigator and indirectly directed the two undercover operators to the 7-Eleven in question, asserting it was a high crime area. Mr. Carleton submits that if this Court finds that Officer Atkinson’s evidence does not establish reasonable suspicion that this was a high crime area, that ends the analysis and entrapment is established. Ms. Murray disagrees, relying on para 20 of Ahmad (set out above) that reasonable suspicion can be developed with respect to the location, the individual, or a combination of the two. I agree with Ms. Murray that a summary, plain reading of such paragraph entitles the Court to consider both the location and circumstances surrounding the targeted individual.

[9]         Accordingly, I will start with Mr. Gibbs. First, Officer Perrett gave evidence early in cross examination that there was nothing that drew her attention to the accused. She went on and conversely noted that she was trying to obtain evidence of trafficking in the area, emphasizing the location. Mr. Gibbs was unknown to her. Although he was riding a bike in the area (and there was some controversy surrounding the nuances of this testimony) and he interacted with an individual that the operators came to know as “little c” who was connected to drug dealing, none of this was particularly noteworthy to the officer and accordingly, likewise, such observations do not funnel into or bolster the overall grounds that this Court will consider.

[10]      Ms. Murray presses that this Court must also consider the language used between Officer Perrett and Mr. Gibbs in their initial conversation. She notes and references the long line of cases culminating with Ahmad which require a nuanced parsing of such exchanges, submitting that the parties’ initial interactions are not an offer to commit a crime but are exploratory in nature and hence contribute to and bolster the overall grounds the investigating team had by the time the offer to commit a crime was finally made.

[11]      It is not controversial that police must have the requisite reasonable suspicion before an offer to commit an offence takes place (para. 59 of Ahmad), accordingly, determining when such offer occurs is an important step in the analysis.

[12]      Ahmad is instructive on these issues and I reproduce the analysis at some length at paras. 63-66 (relevant portions only):

[13]      I agree with Mr. Carleton’s contention that the conversation was pointed in nature and became an offer early into their interactions. Officer Perret testified in direct examination that she approached Mr. Gibbs. She engaged him in conversation, and in paraphrase, the following discussion ensued:

[14]      Generally speaking, this is exactly the kind of language addressed in para. 66 of Ahmad that traditionally constitutes an offer. “When I first approached him,” in other words, almost right away, she asked for a specific amount and type of drug. Again, from para. 66: “courts have consistently recognized that a request to purchase a specific type of drug during the conversation will amount to an offer.” And furthermore, “I need 80”, “I need 40”, “I want a 60 piece” are all examples of offers. It would be difficult to distinguish Corporal Perret’s language from these traditional offers.

[15]      Furthermore, it is an offer at that early juncture, because Mr. Gibbs accepts it. He says effectively and in totality “yes” by his broader statements and actions: He will provide the officer with such substances but since he doesn’t have them on him, he has to first procure them, which he forthwith does and a hand-to-hand transaction ensues. Just like the language at para. 64 of Ahmad contemplates: It’s an offer when the officer says something to which the accused can commit an offence by answering yes, which he did here, upon consideration of the totality of his responses and actions.

[16]      In summary, I conclude that a plain reading of para. 20 of Ahmad supports the proposition that the offer to commit a crime must be premised upon reasonable suspicion of particular criminal activity, whether by a person, place, or a combination of the two. In this particular case, however, there is nothing in the actions of Mr. Gibbs that add to the grounds, and since the offer is made very early in the exchange between Corporal Perret and Mr. Gibbs, there is nothing in his verbiage that adds to the overall “reasonable suspicion” analysis.

[17]      Therefore, the issue to be determined in this particular case is whether there was reasonable suspicion that particular criminal activity was occurring at the 7-Eleven located at 20^th Avenue and Spruce Street, at the time Corporal Perret presented the offer to commit crime to Mr. Gibbs.

[18]      Ascertaining this requires an understanding of what constitutes “reasonable suspicion”. The recent Ahmad decision conducts a tour de force analysis of this issue. Justice Karakatsanis, helpfully compiles, reviews, and digests the law on this point, including a careful analysis of the decision of R. v. Chehil, 2013 SCC 49 which was historically the lead case. The analysis culminates at paras. 45 and 46:

[19]      While I agree with Mr. Carleton that reasonable suspicion requires a rigorous and exacting scrutiny, and requires objective facts that stand up to judicial review, I am also mindful that it is a relatively low standard that is not unduly onerous and deals with possibility, not certainty nor even probability.

[20]      Overall, Officer Atkinson was a generally reliable and credible witness. Neither party contended otherwise. He testified that he indirectly directed the undercover operators to the 7-Eleven in question with instruction to attempt to purchase drugs there. Although such area was not reflected in the original operational plan, Officer Atkinson made the decision to target this location.

[21]      In summary, this decision was based upon the following: He had made personal, first hand observations of people that he knew were involved in drug trafficking and drug use that were starting to spend time at that location. When he attended there, he saw people showing overt signs of intoxication by drugs. He saw drug paraphernalia in the parking lot and alley.

[22]      Several times a day he would get calls there, noting “matters” related to drugs. He was dispatched to files regularly involving drug use or suspected trafficking or other issues, including disturbances involving people under the influence of drugs. He heard these calls for service over the police radio and also at “intel briefings”. This was an address that was typically at or near the top for all calls to service. He couldn’t say with precision how many of such calls were drug related. He directly observed drug trafficking at that location more than once, but didn’t “feel comfortable” giving a number more than that. He attended that location for drug related calls more than 10 times.

[23]      In cross examination, he noted that he witnessed what he believed to be a drug transaction at that location. More specifically, he saw two or more people huddled together, and as he approached them in his marked police vehicle, they turned and went in other directions which caused him to conclude it was a drug transaction.

[24]      Mr. Carleton notes that in R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 SCR 449, which is a classic case that analyzes the sufficiency of grounds regarding location, there was a well-developed statistical analysis presented as evidence. He notes that here, no such statistics were proffered. This submission is well met by a portion of the analysis of R. v. Wolfe, 2018 ABPC 87. Part of the Court’s analysis surrounded location, and whether the investigation was bona fide. With respect to a statistical analysis pertaining to such area, the court noted the following at paras. 114 – 116:

[25]      I agree with such analysis. There is no single, requisite pathway to reasonable suspicion.

[26]      Among other submissions, Mr. Carleton presses that Officer Atkinson’s grounds were generalized in nature and too vague or soft, not allowing for judicial review. With respect, I disagree with such characterization. Officer Atkinson gave an account of events, many of which he had observed as an eyewitness, first hand: he saw people known to him to be involved in drug trafficking and drug use at that location. When he attended, he saw people showing overt signs of intoxication by drugs. He directly observed drug paraphernalia in the parking lot and alley. He observed what he believed to be drug trafficking at that location at least once and described it with detail. I am mindful, however, of the limited value of such observation. He didn’t directly see a drug transaction, but rather, a suspicious event that he concluded must have been drug trafficking. This single suspicious event per se would likely not constitute reasonable suspicion in and of itself, but there is a much broader lattice of facts that Officer Atkinson was relying upon.

[27]      When assessing reasonable suspicion, it is an error to look at each factor in isolation, thus precluding a “divide and conquer” approach to the body of evidence, see para. 62 of Chehil. It is not controversial that this Court must consider the full constellation of facts at hand (para. 46 Ahmad).

[28]      Although the officer did not provide specific dates with respect to his observations, nevertheless, in summary and in totality, (i) he saw people known to him to be involved in drug trafficking at that location, (ii) he directly observed drug paraphernalia in the parking lot and alley, (iii) he saw suspicious activity that he concluded was drug trafficking on at least one occasion, and finally, (iv) he gave sundry testimony as to why he believed that area was associated with criminal activity, to wit: he got calls there several times a day noting matters related to drugs, including disturbances involving people under the influence of drugs. He attended that location for drug related calls more than 10 times.

[29]      This testimony is amenable to rigorous and exacting judicial scrutiny. It is relatively specific in nature, comprised inter alia of the officer’s first hand account of many of the events, constituting a significant constellation of factors that in my view readily establishes and meets the not unduly onerous standard that there was reasonable suspicion that crime, to wit: drug trafficking, was occurring at the targeted and narrowly demarcated area of the 7-Eleven at 20^th Avenue and Spruce Street in Prince George, British Columbia on the date in question.

[30]      If I’m wrong with respect to the sufficiency of Officer Atkinson’s grounds, I note that notwithstanding Mr. Carleton’s submissions to the contrary, the Court must consider “all the objective factors known to members of the investigative team at the relevant time in determining whether the decision was made with reasonable suspicion,” see para. 82 of Ahmad. The relevant time is “by the time” the offer to commit the offence is presented to an individual, see paras. 60 and 61 of Ahmad. This means this Court must consider the following additional evidence: Corporal Perret testified that shortly after they arrived on scene and before she approached Mr. Gibbs, an individual who became known to her as “little c” approached them. The undercover operators shared their food with him and he asked them if they were looking to buy drugs. Officer Bonner-Corriveau began negotiating with “little c,” then another female came along and said she’d come back with “down,” which Corporal Perrett confirmed is street slang for heroin and\or fentanyl, but this individual never returned. This funnels into the assessment of reasonable suspicion and provides powerful, additional, first hand grounds, again, readily meeting the standard in question in conjunction with Officer Atkinson’s evidence.

[31]      Therefore, on the evidence before this Court, I conclude there was reasonable suspicion of particular criminal activity, drug trafficking, at the demarcated location. The accused has failed to establish on a balance of probabilities that the defence of entrapment has been made out. Accordingly, the application for a stay of proceedings is dismissed and the convictions in question are confirmed.