Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Defences ‑‑ Entrapment ‑‑ Meeting between undercover agent and accused set up by friend of accused ‑‑ Whether or not accused entrapped.
Appellant was convicted of drug trafficking as a result of a sale of marijuana made to an undercover police officer in March 1982. On a voir dire the appellant testified that he had been entrapped into committing the crime because of the pressure exerted on him by a friend. This friend, in exchange for consideration by the police with respect to his own narcotics charge, had agreed to assist the police. He made several telephone calls to appellant to arrange for the undercover agent to meet with appellant and ultimately brought about a meeting between the two. The trial judge rejected the appellant's claim of entrapment. The Court of Appeal dismissed appellant's appeal.
Held: The appeal should be dismissed.
None of the circumstances identified as factors leading to a conclusion that the police conduct went beyond acceptable limits existed here. The police acted on reasonable suspicion and were fully entitled to provide appellant with an opportunity to commit the offence. They did not use tactics that would induce the average person into the commission of an offence. The use of undercover agents and informers is common and necessary because drug trafficking is especially difficult. Appellant's friendship was neither exploited nor violated in setting up the meeting with the undercover agent. The number of telephone calls made by appellant's friend to bring about the meeting was not significant, given the general appeal to profit in the calls, the short number of days involved, and the fact that the average narcotic supplier is not going to respond at the very first phone call.
Cases Cited
Applied: R. v. Mack, [1988] 2 S.C.R. 903, reversing (1985), 49 C.R. (3d) 169; Amato v. The Queen, [1982] 2 S.C.R. 418.
Statutes and Regulations Cited
Narcotic Control Act, R.S.C. 1970, c. N‑1.
APPEAL from a judgment of the British Columbia Court of Appeal dismissing an appeal from conviction of drug trafficking by Catliff Co. Ct. J. sitting with jury. Appeal dismissed.
K. Westlake, for the appellant.
S. David Frankel and Patricia A. Babcock, for the respondent.
The judgment of the Court was delivered by
1. Lamer J.‑‑
Introduction
2. The appellant was charged with unlawfully trafficking in a narcotic contrary to the provisions of the Narcotic Control Act, R.S.C. 1970, c. N‑1. The charge arose as a result of a sale of marijuana made to an undercover police officer on March 18, 1982. He was convicted of this offence by Judge Catliff of the County Court of Vancouver, sitting with a jury. On a voir dire the appellant testified that he had been entrapped into committing the crime because of the pressure exerted on him by a friend, Ward Kirkus. The trial judge rejected the appellant's claim and the jury returned a verdict of guilty. The appellant appealed to the British Columbia Court of Appeal and in reasons for judgment given by MacFarlane J., concurred in by Carrothers and Aikins JJ.A., the appeal was dismissed. Leave to appeal was granted by this Court and the appeal was heard at the same time as the appeal in R. v. Mack, [1988] 2 S.C.R. 903. I am of the view that this appeal must be dismissed.
The Facts
3. The Crown called two witnesses on the voir dire, Constable Hickman and Constable Adam, and the appellant testified on his own behalf. Constable Hickman testified that Ward Kirkus, the alleged entrapper, was facing a potential narcotics charge and it was agreed that the police would give him some consideration with respect to his charge in exchange for Kirkus' assisting the police. Constable Hickman had information, received from Kirkus and others, that the appellant was a supplier of narcotics. Constable Hickman instructed Kirkus to phone the appellant for the purpose of arranging a sale of narcotics. Following a discussion with Kirkus, Constable Hickman directed an undercover officer, Constable Adam, to go to a mall parking lot on March 15, 1982, approach a person sitting in a specific vehicle, and ask if he could purchase some drugs. Adam was provided with approximately $200 to that end. The person in the car was in fact Kirkus. Constable Hickman had told Kirkus that a man would approach him in his car. Neither Constable Adam nor Kirkus were informed of the fact they were both working for the police, in accordance with standard police procedure. It is clear, however, that Constable Adam suspected Kirkus was acting on behalf of the police upon meeting him at the mall. At all material times Constable Hickman was assisting in the surveillance of this undercover investigation of the appellant.
4. There were three narcotics transactions arising from the association set up by Kirkus between the appellant and the undercover Constable Adam, only the second of which the appellant was charged.
5. On March 15, 1982, Constable Adam met Kirkus and Kirkus drove him to the appellant's house. Kirkus introduced Constable Adam to the appellant. Constable Adam testified that Kirkus asked the appellant if he had any narcotics and the appellant, who had been told by Kirkus that a half‑pound of marijuana would be purchased, stated that he was "doing pounds for $1,900." Constable Adam testified that he told the appellant he could not afford to buy a half‑pound at that time and it was arranged that the appellant and the officer meet again on March 18. At some point during the discussion Constable Adam picked up a plastic bag containing approximately half an ounce of marijuana. Constable Adam inquired as to the amount and price and the appellant sold this package to Constable Adam at that time. The appellant was not charged with any offence as a result of this transaction.
6. As arranged, the appellant met with Constable Adam on March 18 and while driving in his car the appellant pulled out a bag containing three individually packaged half‑pounds of marijuana. The two men discussed prices and Adam had the appellant stop so that Adam could obtain an additional $100 needed to buy one of the half‑pounds. At this time the appellant, upon being asked by Constable Adam, indicated that he could supply cocaine, "red hair" (marijuana) and he stated that he had been dealing for years and was lucky to find some really good sources. The agreed to transaction was then completed.
7. Constable Adam testified that he phoned the appellant on April 13, and the appellant phoned him the next day, and the two met on the 15th. Constable Adam gave evidence that a further drug transaction was set up and the appellant took him to the residence of a Scott Muirhead. The appellant introduced them and then left. A transaction involving five pounds of marijuana was concluded between Muirhead and the undercover officer. The appellant was not charged with respect to this sale although Muirhead was.
8. The appellant testified that he and Wade Kirkus were friends and they had known each other for approximately seven years. He had not heard from him for about six months when he received a phone call on March 6, 1982. Kirkus told him he had a friend who was interested in buying marijuana and who was willing to pay a "lot of money". The appellant says he told Kirkus he was not really interested and, while he may know someone, he was not willing to get involved.
9. The next day Kirkus called and repeated his request. The appellant again said he was not interested and he asked Kirkus how much money was involved. Kirkus told him that his friend was willing to buy ten to fifteen pounds. The appellant says he told Kirkus "you are talking to the wrong guy". Kirkus then asked for about a half‑pound. The appellant agreed to ask around for him and told Kirkus to phone him back.
10. The appellant asked a friend but that person did not want to deal with Kirkus. When Kirkus phoned back, he said he was unable to assist him. Then Kirkus asked if the appellant could please help him out "just this once". The appellant then asked about Kirkus' friend and Kirkus again stressed the profit they would both make and the appellant said he would have to think about it. Similar conversations initiated by Kirkus occurred the next two nights and Kirkus emphasized that his friend might be getting impatient. The appellant suggested that he meet Kirkus' friend and if he thought he was "okay" he would try and arrange a meeting between his friend and the undercover officer.
11. The next day Kirkus phoned twice to see whether the appellant had made the arrangements and the appellant said he was too busy and unable to reach his friend and he agreed to check the next day. That following day Kirkus phoned and the appellant said he still had not reached his friend. Kirkus asked how long it would take and the appellant told him to call back in an hour. When Kirkus called, the appellant told him he could bring the officer to the appellant's home on Monday, March 15. Kirkus said his friend, Constable Adam, had approximately $1,000 to spend.
12. The appellant gave evidence that he had never sold marijuana to anyone before and he made the following statement when asked what was going on in his mind as the phone calls from Kirkus continued:
...A: He was calling me every day. He would talk to me, and I told him I didn't think so, and I didn't know, and I would check it, and I started telling him I would call him back, and I never did. I never checked it, and finally it just got to be a bit of a problem, him calling me every day.
Q: Why weren't you checking it?
...A: Because I wasn't interested in doing it.
Q: And what did you think would happen?
...A: I thought he would maybe find someone else to deal with and he might stop calling me. I was hoping that he would work it out himself.
13. Then the appellant contacted Scott Muirhead who supplied him with three separately wrapped half‑pounds of marijuana. The appellant did not pay for them but arranged to share the proceeds with Muirhead with the appellant earning $250 on the sale of one half‑pound. The appellant explained why he had two extra half‑pounds in the following manner:
Well, Scott gave me more than one‑half pound, and I asked him why he was giving me more, and he told me, well, maybe the guy will like it and take more. It would just be more money for you, you are doing it now, so, you know, a few more dollars for you would be even better. I just‑‑I didn't say‑‑I couldn't say no. He just asked if there was a problem and I told him, no, I guess not.
14. The appellant was asked why he sold the half‑pound on the 18th, following the first meeting with Constable Adam. He stated:
Well, there is a various number of reasons. It was a combination of reasons, I guess. Ward [Kirkus] was a very good friend of mine at the time. He was persistently calling me, and the money was a factor. I just couldn't say no to a friend, who really wanted me to help him out. He sounded, not desperate, but almost desperate to the point where, you know, you've got to help me out just this once. So, his persistence, or his constant calling didn't stop, so I really didn't have the will to say no to a friend. So, I did it just the once.
15. The appellant insisted that the reason why he acted as if he knew about drugs and sources in his interactions with Constable Adam was because Muirhead told him to "talk big" and to appear like a drug dealer so as to impress the Constable and that he just did what Muirhead told him to do. In cross‑examination, the following exchange took place which provides a useful summary of the appellant's position:
Q: So, to sum up, you really got talked into this, is that what you are saying, by Kirkus and Muirhead?
...A: Well, I was beginning‑‑it was beginning to be a problem with them calling me all the time, you know. He was a friend. He sounded like he needed help, and it was a one‑shot deal, so I did it for a friend, a good friend.
Q: But you got $250 out of it?
...A: I did get some money for it, yes. That wasn't the main reason, though.
Decisions of the Courts Below
16. Catliff Co. Ct. J. ruled that the Crown bore the onus of proving the absence of entrapment beyond a reasonable doubt and concluded: "in this case there is no evidence that satisfies me of entrapment, and further, that the Crown has proved beyond a reasonable doubt that the accused was not entrapped into committing this offence". The trial judge accepted the testimony of the appellant that the calls between him and Kirkus took place, and that he was initially hesitant and told Kirkus he "had the wrong guy" when Kirkus asked about a sale of ten to fifteen pounds of marijuana.
17. Catliff Co. Ct. J. noted that the appellant had plenty of chances to avoid committing the offence. He refused to give credit to the appellant's argument that he did it because of an obligation to a friend. Catliff Co. Ct. J. characterized this as a submission which "amounts almost to saying he was entrapped by friendship". The appellant was not, in the words of Ritchie J. in Amato v. The Queen, [1982] 2 S.C.R. 418, at p. 473, the subject of "police tactics [which] are such as to leave no room for the formation of independent criminal intent".
18. Catliff Co. Ct. J. then referred to the passage from the opinion of Estey, J. in Amato, supra, at p. 446, where Estey, J. stated that the offence must be "instigated, originated or brought about by the police and the accused must be ensnared into the commission of that offence by the police conduct". He concluded that the facts did not, "by any stretch of the imagination", support the existence of this requirement. He referred to the appellant's demonstrated familiarity with drugs and then made the following statement respecting the conversation between the appellant and the undercover officer at the time of the sale on March 18:
I would say that from taking that conversation at face value, there was a predisposition on his part to commit the offence. The accused says he was only boasting, and had been told by his friend, Scott, to act as though he were a drug dealer. I discount that, and do not accept that explanation. I see no reason why on earth, if the accused was feeling obliged out of the pressures of friendship to sell drugs to Adam, that he would feel the need to boast falsely in the way that he did.
19. Other circumstances noted by the judge as showing that the appellant was not ensnared were the fact that the appellant had brought additional drugs with a view to sell if the occasion arose, and the fact that he arranged to meet Constable Adam in his apartment, and having met him, came to an independent decision to sell him drugs.
20. MacFarlane J.A. on behalf of the Court of Appeal confirmed the decision of that Court in R. v. Mack (1985), 49 C.R. (3d) 169, to the effect that: (a) entrapment is available as a defence, but only as an aspect of abuse of process; (b) the issue of entrapment is a question of law for the judge alone; and (c) the accused has the onus of establishing entrapment on a balance of probabilities.
21. The Court was of the view that although the trial judge erred with respect to the onus and standard of proof, that error was favourable to the appellant, and an application of the proper approach would not have produced a different result. MacFarlane J.A. also held there was evidence to support the trial judge's findings of fact and these facts did not justify a conclusion that there was entrapment. He concluded that the appellant had not established entrapment on a balance of probabilities and, therefore, dismissed the appeal.
Analysis
22. In Mack, supra, I outlined the proper approach to the doctrine of entrapment. I agree with the Court of Appeal in the present case that had the trial judge correctly applied the onus and standard of proof, the result would be the same. The appellant has not demonstrated that the conduct of the police, viewed objectively, constitutes entrapment.
23. Firstly, it is clear that the police acted on reasonable suspicion and they were fully entitled to provide the appellant with an opportunity to commit the offence. The issue is, therefore: "have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?" (Mack, supra, at p. 959).
24. The offence of drug trafficking is, as was noted in Mack, supra, one which is especially difficult to detect and the use of undercover agents and informers ‑‑ like Kirkus in the present case ‑‑ is common and necessary. There has been no exploitation of a close personal relationship between Kirkus and the appellant. If the police were unable to rely on the existing connections and associations between people in the narcotics business they would be unduly hampered in their efforts at detecting crime and preventing further criminal activity. Certainly there was an appeal to the appellant because of his friendship with Kirkus but it was not unduly exploitive and nor was the dignity of their relationship violated. This alone is not sufficient to establish the defence in the absence of any other factors.
25. The number of phone calls made by Kirkus occurred over a very short time span and as described by the appellant himself, consist generally of appeals to the profit they could each make by getting involved. Obviously the average narcotic supplier is not going to respond at the very first phone call and it would not be unusual for there to be a number of contacts made before a deal is arranged. I do not, therefore, find the fact that Kirkus had to phone the appellant a number of times to be significant especially given the content of these calls and the short number of days involved. I have no doubt that the average person would not be induced into the commission of an offence as a result of this conduct.
26. In short, there are none of the circumstances which existed in Mack, supra, or which have been identified in that judgment as factors which may lead to a conclusion that the police conduct has gone beyond the limits that our society deems proper. I would, therefore, dismiss this appeal.
Appeal dismissed.
Solicitors for the appellant: Jackson & Westlake, Vancouver.
Solicitor for the respondent: Frank Iacobucci, Ottawa.
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