Entrapment in Alberta
- October 30, 2017
- Clayton Rice, Q.C.
There has been a recent upswing in entrapment cases before the Alberta courts. I will discuss two where stays of proceedings were entered. One is the unreported ruling of Justice Earl C. Wilson in R v Saggu, Q.B. No. 150883536Q1, dated May 5, 2017, and the other is the decision of Judge Donna M. Groves in R v McDonald, 2017 ABPC 225 released on September 20, 2017. They are companions.
The governing principles have been well established in Canadian law for over twenty-five years. In R v Mack,  2 SCR 903 and R v Barnes,  1 SCR 449 the Supreme Court of Canada established that entrapment occurs when:
(a) the police provide an opportunity to someone to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry; and,
(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, the police go beyond providing an opportunity and induce the commission of an offence. (See: McDonald, per Groves PCJ, at paras. 30-1)
2. R v Saggu
Between March 17, 2015, and July 20, 2015, Amandeep Singh Saggu was involved in a dial-a-dope operation. There were six drug deals with undercover police officers. The police investigation began when an anonymous tipster called Crime Stoppers. A police officer at Calgary Police Service made a note: “Chris was a drug dealer. Chris’s [sic] phone number is (587) 969-6060.” The officer passed the information to a second constable with the direction to “arrange a meet to purchase drugs”. A text was sent to the target number: “Yo, you around. Need a ball ASAP!”
A number of text messages and telephone calls then followed. The first two texts were offers to buy drugs by the undercover officer which did not receive an affirmative response. The undercover officer then received a text with a new number and attempted to arrange a meeting at a bar with a third text: “Yo, can you hook up a ball?” No reply. The undercover officer then called and asked for the fourth time “if the male could hook him up with a ball, meaning 3 and a half grams of powder cocaine, and the male said he could.” That conversation led to a meeting where the first purchase took place and the other buys followed on separate dates.
In finding that the police did not have a reasonable suspicion that Saggu was selling drugs before the opportunity was provided, Justice Wilson relied on the ruling in R v Gladue, 2012 ABCA 143 where Justice Peter T. Costigan held, at para. 9: “Although a reasonable suspicion that a person is engaged in criminal activity can be developed during the course of an investigation of a tip, it must exist before the opportunity to commit an offence is provided: R v Imoro, 2010 ONCA 122 at para. 16, 251 CCC (3d) 131 aff’d 2010 SCC 50,  3 SCR 62.”
That is the point in Saggu. After receiving the tipster’s call the police officer checked the phone number for “Chris” on the Calgary Police Service Information Management System (PIMS) and found nothing. There were no reports of any investigations in relation to that number. Justice Wilson concluded, at pp. 7-8:
“I find that when Constable Swanson made the first text…he only did so at the direction of Constable Coffyne. Neither Constable Swanson or Constable Coffyne had, at that time, a reasonable suspicion that “Chris” was engaged in dealing drugs. While Constable Coffyne…had attempted to investigate the tip, the end result remained the same. He gained nothing from his efforts. The same result had he done nothing…I find that all that can be made out of Chris’s [sic] responses is some additional suspicion. It must be borne in mind that Constable Swanson did not commence his texting with a view to determining the type of business or employment held by that subscriber or user. It was, as the officer candidly admitted, to arrange a meet to purchase drugs. His suspicions only bore fruit on the fourth attempt…[A] reasonable suspicion that the accused was engaged in criminal activity had to exist before that opportunity was provided. Such, I find, did not exist here.”
3. R v McDonald
On January 20, 2017, Roland Jason McDonald sold .3 grams of methamphetamine to an undercover police officer for $20 at the Coliseum LRT station in Edmonton during Operation Derailment which targeted drug trafficking at the station and in the surrounding area. Judge Groves described how the deal went down, at paras. 20-2:
“Cst. P testified that his attention was drawn to two men with a bike who were yelling ‘something about a backpack‘. Cst. P approached these men and made a comment about the backpack as a segue into taking with them. Cst. P testified that he said to the offender ‘can you do 30?’ and Mr. McDonald replied that he could ‘do 20‘.
Cst. P confirmed that he was not directed to these two individuals by his cover manager, nor did he have any prior involvement with or knowledge of Mr. McDoanld. Rather, his initial attention was drawn to Mr. McDonald because of the yelling. However, in cross-examination Cst. P conceded that Mr. McDonald fit the description of someone who may be involved in the drug lifestyle. Cst. P identified Mr. McDonald’s backpack, loud talking, the bicycle on the LRT platform, his hat and dirtier clothes as markers of someone involved with drugs.
Cst. P denied that Mr. McDonald’s Aboriginal race had any influence on him approaching Mr. McDonald or believing he was involved in the drug trade.”
It was not disputed that the undercover officer did not have a reasonable suspicion that McDonald was trafficking in drugs. Judge Groves agreed with counsel, at para. 64, that the factors mentioned by the officer, such as “dirtier clothes”, were not sufficient to meet the threshold of reasonable suspicion. The case turned, then, on whether the police were engaged in a bona fide inquiry. Judge Groves was careful in her analysis to emphasize, at para. 66, that she did “not find any mala fides on behalf of the police” but “the absence of mala fides is not equivalent to bona fides“. (See also: R v Swan, 2009 BCCA 142)
At the heart of the analysis whether the police were engaged in a bona fide inquiry was the Standard Operational Plan (SOP) of the Edmonton Police Service for Operation Derailment. The review of the SOP occupies a large part of the decision as, of course, it formed the foundation of the police inquiry under the Mack/Barnes test. The two-fold law enforcement objective was contained in the SOP, at p. 4, and under a separate heading titled “General Objectives” which Judge Groves reproduced, at paras. 77 and 84. Here they are:
- The disruption and suppression of drug use and trafficking in these locations…will also reduce the violence and disorder associated with the drug trade. The arrest of the problem drug traffickers and their removal from these locations will in turn reduce the calls for service at these locations as the disorder and violence associated with the drug trafficking activity of the suspects will be curtailed, thereby increasing public safety along the LRT line.
- Any of the targets will hopefully be remanded until trial eliminating their presence in these high problem areas. Accused persons who are released will be bound by enforceable conditions, such as keeping the peace and being of good behaviour, not to be in possession of drugs and possibly curfew conditions, which can be utilized by both Patrol and Beats to breach the accused’s [sic] persons should they return to these problem areas.
Judge Groves concluded, at paras. 78-81, that if the purpose of Operation Derailment was to (a) target drug traffickers because of the location or (b) repress violent crime, the Crown did not meet its evidentiary burden of proving on objectively discernible facts that the police suspicion about the Coliseum LRT station was reasonable. She held, at para. 85: “I find as fact, that at least one purpose of Operation Derailment was to simply arrest those involved in drug activity, and incarcerate them for as long as possible, thus preventing them from returning to these problem areas, thereby ‘reducing the calls for service at these locations’.” (See also: R v Seymour, 2016 MBCA 118; and, R v Chehil,  3 SCR 220)
I began with the comment that these two cases are companions. They fall under the separate prongs of the first part of the Mack/Barnes test (a) Saggu on reasonable suspicion and (b) McDonald on bona fide inquiry. Judge Groves’ ruling in McDonald is carefully considered, well reasoned and provides a compendious review of the leading cases. Saggu is from the higher court.