File Number: 33649
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE ONTARIO COURT OF APPEAL)
BETWEEN:
ALiU IMORO
APPELLANT
(Respondent)
and
HER MAJESTY THE QUEEN
RESPONDENT
(Appellant)
and
THE ATTORNEY-GENERAL OF ONTARIO
INTERVENER
FACTUM
HER MAJESTY THE QUEEN, RESPONDENT
(Rule 42)
Public Prosecution Service of Canada
Ontario Regional Office
Brian Saunders
Director of Public Prosecutions
Per: Nicholas E. Devlin I Lisa Csele
130 King Street West, Suite 3400
Toronto, Ontario, M5X 1K6
Tel: (416) 952-6213
Fax: (416) 973.8253
[email protected]
Per: Franyois Lacasse
284 Wellington Street, 2nd floor
Ottawa, Ontario, K1A OH8
Tel.: (613) 957-4770
Fax: (613) 941-7865
[email protected]
Counsel for the Respondent
Ottawa Agent for the Respondent
Benjamin Moss
Henry S. Brown Q.C.
Barrister & Solicitor
116 Parliament Street
Toronto, Ontario, M5A 2Y8
Tel.: 416-423-6548
Fax: 416-423-7116
E-mail: [email protected]
Gowling LaFleur Henderson LLP
2600 - 160 Elgin St, P.O. Box 466, Stn
I'D"
Counsel for the Appellant, Aliu Imoro
.Ottawa Agent for the Appellant
Attorney-General Of Ontario
per: Robert W. Hubbard I Leanne Salel
Ottawa,O~ario,K1P1C3
Tel: 613-233-1781
Fax: 613-788-3433
E-mail: [email protected]
Robert E. Houston, Q.C.
10th Floor, 720 Bay Street
Toronto, Ontario, M5G 2K1
Tel: 416-326-2307
Fax 416-326-4656
E-mail: [email protected]
Burke-Robertson
70 Gloucester Street
Ottawa, Ontario, K2P OA2
Tel:' 613-566-2058
Fax: 613-235-4430
E-mail: [email protected]
Counsel for the Intervener
Ottawa Agent for the Intervenor
Respondent's Factum
Table of Contents
TABLE OF CONTENTS
PART I - OVERVIEW AND STATEMENT OF THE FACTS
.
PART 11- QUESTIONS IN ISSUE
PART 111- ARGUMENT
PART IV - COSTS
1
5
6
;
29
PART V - NATURE OF ORDER SOUGHT
29
PART VI- TABLE OF AUTHORITIES
30
PART VII - APPLICABLE LEGISLATION
32
Respondent's Factum
Page 1
PART 1- OVERVIEW AND STATEMENT OF THE FACTS
Overview
1.
A drug dealer was plying his trade, selling cocaine and marijuana, from a
residential apartment building on Jane Street in Toronto. A member of the public called
the police, giving the specific address and exact floor where this crime was taking place,
along with a general physical description of the suspect. The police responded to this
complaint.
\
2.
Within moments of arriving on the scene, an undercover officer encountered the
Appellant, who matched the description and did something unusual- something a drug
dealer is likely to do - he told a complete stranger, the undercover officer, to come with
him to his apartment. The officer replied to the Appellant using the language of the drug
sub-culture and confirmed that he had likely identified the right suspect.
3.
Moments later, the Appellant sold marijuana to another man, and then sold
cocaine to the undercover officer. The next day, after selling again, the Appellant was
arrested for trafficking cocaine and his stash of drugs was seized from the apartment.
4.
There was no entrapment in this case. This was good police work. The officers
conducted a bona fide inquiry, in a professional manner, consistent with this Court's
jurisprudence.
Excluding the evidence of the Appellant's crimes for 'entrapment'
distorted both the principles and procedure established in this Court's jurisprudence.
The Ontario Court of Appeal unanimously overturned this decision and this further
appeal as of right should be dismissed.
Respondent's Factum
Page 2
Summary of the Salient Facts
5.
Police received a telephone call complaining that a black male was selling drugs
from his residence on the twelfth floor of an apartment building on Jane Street in
Toronto. 1 The name of the caller and the date of the call were redacted from the
materials disclosed to the Appellant to protect informer privilege. 2
6.
Detective Constable Brant Mathews entered the building dressed in plain clothes
and rode the elevator up to the twelfth floor with another unknown man. They both got
off on the twelfth floor and were met by a black male, who turned out to be the
Appellant, right outside the elevator doors.
The Appellant, a complete stranger to
Officer Mathews, looked right at him and said, "Hey, come with me". 3
7.
Reacting to this sudden development, Officer Mathews asked, "You can hook me
up?" to confirm whether this was the person he was interested in investigating. The
Appellant proceeded to self-identify as a drug dealer, saying, "Yah man." Both Officer
Mathews and the other unknown man from the elevator then followed the Appellant to
his apartment where he sold marijuana to the first man right in front of Officer Mathews.
8.
4
The Appellant then turned to the officer and asked him what kind of drugs he
wanted. The officer asked for crack cocaine, but the Appellant told him he only had
powder cocaine available. 5
Transcript of Proceedings, June 4, 2008, Appellant's Record Vol. 1, P 84, lines 25-27
Reasons for Judgment at Trial, Appellant's Record, Vol. 1, p.3, para. 7
3 Transcript of Proceedings, June 4 2008, Appellant's Record Vol. 1 page 100, lines 20-29
4 Transcript of Proceedings, June 4,2008, Appellant's Record, Vol. 1 page BB, lines 8 to 9, 22 to 29
5 Transcript of Proceedings, June 4 2008, Appellant's Record, Vol. 1 page 88, line 30 to page 89, line 10
1
2
Respondent's Factum
9.
Page 3
It was at this point that Officer Mathews asked the Appellant to sell him $40 worth
of powder cocaine. The Appellant had his wares ready and waiting in a bag containing
approximately a dozen smaller. pre-packaged baggies of cocaine. He placed one
~f
these pre-packaged doses on a scale, removed some of the cocaine and, once satisfied
with the weight, handed it to the officer in exchange for $40. For this amount of money,
the officer received 0.45 grams ofcocaine. 6
10.
The Appellant gave Officer Mathews his telephone number for future purchases
before they parted company. The officer returned the next day and bought more cocaine
from the Appellant in the same way.7
11.
A search warrant was executed on the apartment moments after the second sale.
Over a half-kilogram of marijuana (550.05 grams), 6.41 grams of cocaine, a digital scale
and drug packaging consistent with trafficking were found inside the Appellant's
apartment. The marked bills Officer Mathews used to buy the drugs were found on the
Appellant's person. s
12.
Officer Mathews' version of the events was undisputed. 9
13.
The Respondent did not testify.
.\
6
7
Agreed Statement of Facts, Appeal Book, Vol. 3, page 99
.
Transcript of Proceedings, June 4 2008, Appellant's Record, Vol. 1 page 88, line 30 to page 90, line 6; page 91, line
25 to page 94, line 21
Agreed Statement of Facts, Appeal Book, Vol. 3, page 100
9 Reasons for Judgment at Trial, Appellant's Record, Vol. 1, pp. 3 to 4, paras. 7 to 11
6
Respondent's Factum
14.
Page 4
The Respondent asked the trial judge to deal with the issue of entrapment as a
pre-trial motion ~or the exclusion of evidence. She agreed to do so, and entertained the
application on this basis, th'ough acknowledging that this approach was "novel" and
without precedent.
1o
The trial judge found that the police were not engaged in a bona
fide inquiry and lacked reasonable suspicion to approach the Appellant. She criticized
the police use of an undercover officer, found entrapment and excluded the evidence of
the Appellant's sales of cocaine under s.24(2) of the Charter.
15.
The trial judge then excised the description of those sales from the affidavit
supporting the search warrant of the Appellant's apartment, found that this rendered the
grounds for the search warrant insufficient, found that the search consequently became
a breach of s.8, and also excluded the drugs found in the Appellant's apartment from
evidence. The accused was then acquitted. 11
16.
The Ontario Court of Appeal granted the Crown's appeal, ruling that Officer
Mathew's actions in the hallway were a reasonable investigative step and that the offer
to traffic cocaine was not made to the Appellant until it was virtually certain that he was a
drug -dealer. 12 The Court of Appeal also held that the trial judge was wrong to depart
from the well-established process of determining substantive guilt or innocence before
considering entrapment, and commented that the exclusion of evidence under s.24(2)
was "ill-suited" to remedy an abuse of process claim, which is the basis for a finding of
entrapment. 13
10
11
12
13
Ibid, at para. 3
Ibid. at paras. 52-54, 63-70
Reasons for Judgment of the Court of Appeal, Appellant's Record, Vol. I at paras. 15-16
Ibid. at paras. 21-28
Respondent's Factum
Page 5
PART II - QUESTIONS IN ISSUE
17.
. The simple issue raised on this appeal is whether the question posed by the
police officer to the Appellant - "You can hook me up?" - amounted to entrapment in all
of the surrounding circumstances. The position of the Crown is that the Court of Appeal
was correct in holding that there was no evidence of entrapment, as the question posed
by the officer did not amount to providing an opportunity to commit the offence of
trafficking, but was a legitimate investigative question posed to determine whether the
Appellant was the person trafficking drugs on the twelfth floor of the apartment building.
18.
Moreover, the police response to the complaint in this case was a bona fide
inquiry into drug trafficking and fell within the range of appropriate police conduct.
19.
A subsidiary question, and one which the court need not decide on the facts of
this appeal, is whet,her it is appropriate to exclude evidence as a remedy for entrapment.
The Crown's position is that this Court's established procedure for remedying
entrapment is sound and consistent with the rationale for the entrapment doctrine. The
procedure for entrapment is clear, well-understood and easy to apply.
It also avoids
adding to the proliferation of lengthy pre-trial motions which plague modern criminal
trials.
Respondent's Factum
Page 6
PART III - ARGUMENT
I. .
The Basic Governing Principles
20.
This Court developed entrapment as a species of the abuse of process doctrine.
Entrapment is intended to deal with cases where the accused committed the crime
alleged, but the conduct of the police in inducing or instigating the commission of the
crime makes it intolerable to condone their actions with a conviction. 14
21.
The basic. rule is that police must not improperly induce the commission of an
offence, or test the virtue of citizens, about whom they have no reason to be suspicious,
by randomly offering them opportunities to commit crimes. 15
22.
However, the police have a duty to investigate crimes, and must be allowed to
use techniques, such as undercover officers, to investigate serious but hard-to-detect
offences, like drug-trafficking. 16 In the course of their investigations, police officers may
approach and speak to anyone, just like an ordinary citizen may, without grounds or
suspicion. They may advance their investigation through observation, conversation and
other techniques, but, in the absence of reasonable suspicion, must stop short of
offering the opportunity to actually commit a criminal offence.
17
R. v. Mack, [1988]2 S.C.R. 903 at 938 to 942; R. v. Amato, [1982]2 S.C.R. 418 at 445; R. v. Jewitt, [1985]2 S.C.R.
v. Pearson, [1998]3 S.C.R. 620 at para 8
15 R. v. Mack, supra, at 917,956 to 957; R. v. Bames, [1991]1 S.C.R. 449 at 463.
16 R. v. Mack, supra at 916, Brendon Murphy and John Anderson, '''Mates, Mr. Big and the Unwary': Ongoing Supply
14
128 at 145; R.
and its Relationship to Entrapment", 2007-08,19 Current Issues in Criminal Justice 5.
17 Peart v. Peel Regional Police Services Bd, [2006] O.J. No. 4457 (C.A.), (leave to appeal to the Supreme Court of
Canada refused [2007] S.C.C.A. No. 10), at para. 107; see also R. v. Calder, [2004] O.J. No. 451 (C.A.), for the'
general principle that, if they do not interfere with a citizen's liberty, or cross the bounds of the entrapment, police are
free to approach and interact with people just as anyone else could. R. v. Dedman, [1985]2 SCR 2 at 11; see also: R.
v. Grafe (1987) 36 C.C.C. (3d) 267 (C.A), (appeal to the Supreme Court of Canada as of right abandoned [1987]
Respondent's Factum
23.
Page 7
Where there is a good reason to investigate a location (physical premises,
telephone numbers or virtual locations online), police may engage in bona fide inquiries.
In these circumstances, police may offer the chance to commit crimes without a
reasonable suspicion about a specific individual, so long as they remain within the
bounds of the place being investigated. 18
II.
Investigation is Not Entrapment
24.
The Appellant greeted Officer Mathews, a complete stranger, by telling him to
"come with me". The officer responded to this curious invitation in the most logical
fashion: he asked 'why?'
Being in-character in his undercover role, he asked the
question in a way which identified him as a prospective drug purchaser. While Officer
Mathews' question both protected his cover and advanced the investigation.
25.
The Court of Appeal correctly held that Officer Mathews was simply doing his job,
namely investigating whether the Appellant was potentially the drug dealer they sought
to investigate. As Laskin J.A. wrote, on behalf of himself, Blair and Watt JJ.A: 19
I cannot accept the trial judge's companion ,finding that the officer's
question provided Mr. Imora with an opportunity to sell drugs. That view
evidence
mischaracterizes
what
occurred.
This
of 'the
mischaracterization stems from a failure to properly distinguish between
legitimately investigating a tip and giving an opportunity to commit a
crime: see R. v. Townsend, [1997] O.J. No. 6516 (Gen. Div.).
By the question "Can you hook me up?" all the officer really asked Mr.
Imora was whether he was a drug dealer. The question was simply a
S.C.C.A. No. 542) at 274: "The Charter does not seek to insulate all members of society from all contact with
constituted authority, no matter how trivial the contact may be"; R. v. Calder, supra at para. 3
18 R. v. Mack, supra at 967 to 957,959; R. v. Barnes, supra at 463
'
19 Reasons of the Ontario Court of Appeal, Appellant's Record Vol. 1 pp 28 to 29, paras. 15 to 16
Respondent's Factum
Page 8
step in the police's investigation of the anonymous tip. It did not amount
to giving Mr. Imoro an opportunity to traffic in drugs.
That opportunity was given later when the officer and his fellow
passenger in the elevator were inside Mr. Imore's apartment. By then,
having observed a drug transaction between Mr. Imore and the other
man, the officer certainly had reasonable suspicion - indeed virtually
certain belief - that Mr. Imore was engaged in drug trafficking.
[emphasis added]
26.
In drug investigations such as this one, events often unfold rapidly. As the facts of
this case illustrate, what happens in the first few seconds of the encounter between an
undercover officer and a person identified through a tip usually corroborates the tip or
eliminates that person as suspect. The fact that this initial interaction is very brief does'
not does make it any less of a legitimate step in the investigation. 2o
27.
The Appellant argues that giving someone a chance to confirm their involvement
with the drug-trade always amounts to offering the opportunity to commit trafficking by
offer. This overextends the concept of "offering to traffic" beyond its logical and
legislative bounds. Expressing a willingness and ability to commit a criminal offence falls
short of offering to actually do so.
The plain meaning of the word "offer" requires
something more than a general expression. of a possibility. As the Oxford English
Dictionary defines it, an offer connotes something more concrete: "a presenting for
acceptance; a proposal to give or do something. ,,21
In other words, an offer goes
beyond indicating that an offer from the other party will be entertained.
20
21
R. v. Pepper, [2010) B.C.J. No. 786 (S.C.J.) at paras. 28-29
The Shorter Oxford English Dictionary, 3rd ed., s.v. "offer"
Respondent's Factum
28.
Page 9
In the drug context specifically, the British Columbia Court of Appeal approved of
the following definition of "offering" which captures the same element of tangible,
purposive action by the offeror, intended to bring about an agreement: 22
... an offer to sell or deliver a narcotic is complete once the offer is put
forward by the accused in a serious manner intending it' to induce the
officer White to act upon it and to accept it as an offer. [emphasis
.added]
29.
Applying these principles, asking someone whether they are a drug dealer, in
coded language and at a high level of generality, does not constitute the provision of an
opportunity to traffic. The Appellant would not, and could not, have been prosecuted for
trafficking by offer on the basis of saying, "Yah man" when asked if he could 'hook up'
the undercover officer. In this case, the question, "You can hook me up" was at least
one step removed from providing an opportunity to commit the bffence of trafficking.
23
The Investigation Corroborated the Tip
30.
The fact that a stranger located through a tip or complaint about drug dealing
responds positively and naturally to language which makes sense in the drug subculture clearly provides corroboration for that tip. A complaint containing a reasonable
level of detail, combined with a positive response to a question like, "can you hook me
up?" more than establishes a reasonable suspicion. The use of 'drug-lingo' is a valuable
investigative tool to corroborate whether someone at a suspect location is, in fact,
involved in the drug trade.
22
R. v. Sherman (1977), 36 C.C.C. (2d) 207 (B.C.e.A.) at 208
.
If the specifics of a proposed transaction (the drug in question, timing, price and so on) had already been
discussed, a phrase like "can you hook me up" could constitute the consummation of the deal. The language, as
always. is context-dependent.
23
Respondent's Factum
31.
Page 10
The recent case of R. v. Williams, involving a telephone-based drug dealer,
illustrates this point. The facts of Williams are similar to the facts of the present case.
An undercover officer received information about a suspected drug dealer operating at a
particular phone number.
In an effort to investigate, he called the number and
commenced a conversation using the lingo of the drug sub-culture: 24
Unknown male:. Hello [or "hi"].
32.
Cnst. Carrabs:
You good? You around? Is this Bizz?
Unknown male:
Yah, yo, what do you want? Where are you?
In considering and rejecting a claim that this call constituted entrapment, Hill J,
conducted a comprehensive review of the jurisprudence on every facet of the
entrapment doctrine and concluded that allowing officers to engage with suspects in
drug-related conversations before a reasonable suspicion has crystallized is a proper
part of the investigation of drug dealers who operate in private locations or by telephone,
precisely because it offers such a good opportunity to gain corroboration of the tip.
Justice Hill found that the language of the call was both essential to successful
investigation, and also a strong way to corroborate the original suspicion. 25
According to the officer, and confirmed by Const.· Hobson's testimony,
the expression "You good" was slang or lingo in the drug culture
requesting to know whether the person was available to sell drugs. No
dealer would conduct business with a caller who phoned to ask whether
he had "crack cocaine" for sale. On hearing the responses to his
questions, Const. Carrabs believed he was dealing with Bizz and that
.
Bizz had signalled availability to deal drugs.
24
25
R. v. Williams, [2010] O.J. No. 1324 (S.C.J.) at paras. 14-15
Ibid. at para. 15
.
Respondent's Factum
33.
Page 11
Comparing the facts in Williams to the present case, Hill J. made the following
"
insightful remarks: 26
... in the course of the lawful exercise of his duty to investigate crime
and to apprehend offenders, the investigator was entirely justified in
contacting Bizzin order to determine, through additional investigation,
whether a drug deal could be set up. A drug dealer's livelihood is
dependent on outwitting the police. The. dealer works in the shadows
, peddling narcotics to uncomplaining customers, There is no kiosk, no,
store display case or commercial regulation.
Given the clandestine nature of drug-dealing, the experienced officer's
approach was to employ drug-culture slang or lingo in his phonecall to
draw out the suspect. On the evidence, the "You good? You around?"
language, not dissimilar to the "Can you hook me up?" question in
Imora, amounted to an inquiry as to whether the called individual was a
dealer available with drugs to sell. The "Yah, yo, what do you want?"
response, together with no quarrel with the constable's question as to
whether the male party was "Bizz", strongly confirmed the confidential
informant's information. [emphasis added]
34,
The reality is that undercover officers will have to show interest in the subject
matter of the crime they are investigating. Lord Justice Hoffmann expressly recognized
this when the House of Lords confronted the issue of entrapment in R. v, Looseley.
There, he observed that, "undercover officers who infiltrate conspiracies to murder, rob
or commit terrorist offences could hardly remain concealed unless they show some
enthusiasm for the enterprise." 2? Undercover operators, like Officer Mathews, need to
be able to look the part, both to ensure the viability of the investigation and to protect
their own safety. When suspects respond to the language, and other subtle signs of
their criminal sub-culture, police are allowed to rely on this to confirm their suspicions
and advance their investigations.
26 R. v. Williams, supra at para. 53-54. Notably, the defence in Williams conceded, and the court agreed, that the
opportunity to commit the offence of trafficking only arose later, when the undercover officer actually placed his order
for the drugs: R. v. Williams at para. 19
27 R. v. Looseley Attorney General's Reference (No.3 of 2000), [2001]4 A.E.R. 897 at para. 69 per Hoffmann L.J.
Respondent's Factum
Page 12
A Drug Conversation Identifies the Dealer without Entrapping Him
35.
The Court of Appeal's analysis is true to the principles underlying the doctrine of
entrapment. It balances the need to give police the tools to infiltrate consensual crimes,
like cocaine trafficking, with the imperative that innocent citizens be left alone. The drug
sub-culture has a language by which its participants identify themselves to one another.
Using this language is a legitimate investigative tool, and provides undercover officers
with an investigative technique for determining whether someone is involved with the
drug trade, without crossing the line and instigating the commission of an offence.
36.
The trial judge in this case failed to recognize that the police were entitled to be
on the scene and ask investigative questions. She conflated giving the suspect an
opportunity to identify himself as a drug dealer with giving him the opportunity to actually
deal drugs. There is nothing wrong with asking people, in the terminology of the drug
sub-culture, whether they are drug dealers.
If they respond positively, a reasonable
suspicion is established and the officer can pursue his investigation by providing the
target with an opportunity to traffic. If not, the investigation has eliminated them as a
suspect.
37.
In sum, the Court of Appeal correctly decided that Officer Mathews did not
present the Appellant with an opportunity to break the law until they were inside his
apartment, and the Appellant's identity as a drug-dealer had been confirmed.
Respondent's Factum
III.
Page 13
This was a bona fide inquiry
Entrapment was never intended to capture the investigation of specific tips
38.
Police must be allowed to investigate specific complaints of crime. There is
nothing in this Court's jurisprudence which suggests that the entrapment doctrine was
ever intended to prevent police from responding to a compelling complaint by sending
an undercover officer to the location where a crime has been reported.
39.
In Mack, this Court established the concept of the "bona fide inquiry" to cover
exactly such cases. Where the police have a good reason, such as a public complaint
or tip, to suspect illegal activity in a defined area, but no particularized suspicion about
any specific individual, they are permitted to launch an investigation that includes
offering opportunities to commit the offence being investigated. 28 In Barnes, this Court
expanded on the meaning of a bona fide inquiry. For the majority, Lamer C.J. held
The basic rule articulated in Mack is that the police may only present the
opportunity to commit a particular crime to an individual who arouses a
suspicion that he or she is already engaged in the particular criminal
activity. An exception to this rule arises when the police undertake a
bona fide investigation directed at an area where it is reasonably
suspected that criminal activity is occurring. When such a location is
defined with sufficient precision, the police may present any person
associated with the area with the opportunity to commit the particular
offence. Such randomness is permissible within the scope of a bona
fide inquiry. [original emphasis]
26
29
R. v. Mack, supra at 917
R. v. Barnes, supra at 463
Respondent's Factum
40.
Page 14
The Court expressly acknowledged that these techniques are necessary to
combat certain forms of crime, such as drug dealing: 3o
Of course, in certain situations the police may not know the identity of
specific individuals, but they do know certain other facts, such as a
particular location or area where it is reasonably suspected that certain
criminal activity is occurring. In those cases it is clearly permissible to
provide opportunities to people associat~d with the location under
suspicion, even if these people are not themselves under suspicion.
This latter situation, however, is only justified if the police acted in the
course of a bona fide investigation and are not engaged in random
virtue-testing. While, in the course of such an operation, affording an
opportunity in a random way to persons might unfortunately result in
attracting into committing a crime someone who would not otherwise
have had any involvement in criminal conduct, it is inevitable if we are to
afford our police the means of coping with organized crime such as the
drug trade and certain forms of prostitution to name but those two.
41.
The practical application of the bona fide inquiry concept to cases such as this
one was succinctly described by Wein J. in R. v. Bogle:
31
The police are entitled to rely on untested informants as the basis for
the first step in making a bona fide enquiry and where that bona fide
enquiry confirms the information, the police are entitled to continue the
investigation, absent any activity that would amount to importuning'.
42.
The facts in this case provide an ideal illustration of the sort of factors which
delineate a bona fide inquiry. Indeed, they meet even the more stringent analysis urged
by McLachlin J. in Barnes (as she then was) to reasonably limit police powers.
32
The
complaint in this case was focused and specific. It placed the illegal activity on a single
floor of a single building, and even gave a basic physical description of the suspect. In
the language of this Court, this information was "compelling." 33
R. v. Mack, supra at 956
R. v. Bogle, [1996] O.J. No. 1768 (Ont. Gen. Div.) at para. 17
32 R. v. Barnes, [1991]1 S.C.R. 449 at pp. 482-483
33 See R. v. Debot, [1989]2 S.C.R. 1140 at pp. 1168 to 1170
30
31
Respondent's Factum
43.
Page 15
In R. v. Plant, Sopinka J. described an anonymous Crimestoppers tip as
"compelling", even though it only provided a general description and location of a growoperation, because it allowed police to find the house.
34
Significantly, the tipster in R.
v.
Plant didn't even know the address. It must also be remembered that the tip in Plant was
used to support reasonable and probable grounds for a search warrant, whereas the
complaint in this case only needed to justify a bona fide inquiry. The complaint in this
case was far more specific, and certainly compelling.
44.
The narrow focus of the complaint meant that there was a very limited potential
for interfering with law abiding citizens going about their business.
The area targeted
by the police was also tightly correlated to the complaint - there was no over breadth to
the sphere of investigation.
45.
Drug dealers, especially those who work at echelons above street-level, are
notoriously hard to catch. Drug crime involves:
significant profit; a highly adaptive and responsive target group; the
potential for violence; cash transactions; the potential for corruption;
mutual consent; a sub-cultural vernacular; political pressure; secrecy;
telecommunications; and low levels of reporting by 'consumers.' Drug
deals are a simple rapid transaction, even where substantial quantities
are involved, that can take place anywhere at any time ---but will
typically take place in public space: ...The nature of the, illegal drug
market requires extraordinary policing methods, including undercover
35
operations.
46.
By far the best, if not only, means of investigation in this case was to send an
undercover officer to the scene to make observations, confirm if it appeared that buyers
were coming and going from the location, and attempt to identify the trafficker.
R. v. Plant, [1993] 3 S.C.R. 281 at 297 to 298
Brendon Murphy and John Anderson, '''Mates, Mr. Big and the Unwary': Ongoing Supply and its Relationship to
Entrapment", 2007-08,19 Current Issues in Criminal Justice 5
34
35
Respondent's Factum
47.
Page 16
Undercover operations are, as the Australian High Court has observed, an
investigative technique necessary to penetrate "the hermetically sealed drug culture."36
48.
In this case, officers had no name by which to identify a suspect. Moreover, the
Appellant only had a criminal record for simple assault, and thus would not have stood
out even if past information about him could have been located. 37 As this Court has
recognized, drug dealers are notoriously ruthless in their retribution against those who
interfere with their lucrative business. 38 Therefore, police will often have little more to go
on than a location or a phone number, along with a name or description, provided by an
informer who requests to remain anonymous.
49.
The fact that the undercbverofficer encountered the Appellant instantly was
sheer luck. In most similar instances, the officer would have had to spend some time
watching for suspicious in-and-out traffic from an apartment, and attempting to speak
with suspected purchasers about where he could get drugs. That sort of investigation
would have been unimpeachable. It hardly became wrong by virtue of Officer Mathews'
chance encounter with the Appellant and the Appellant's eagerness to deal with him.
50.
This is especially true since these preliminary investigative steps are far removed
from the sort of police conduct which the entrapment doctrine was formulated to
address,as Wein J. observed inR. v. Bogle: 39
It may also be said that. the first investigative step, of merely calling the
pager number to ascertain whether a return call is made and, if so,
asking if drugs are available, is minimally intrusive.
R. v.
Trial
38 R. v.
39 R. v.
36
37
Salem (1997) NSW LEXIS 1170 (H.C.) at 3
Exhibit 1: "Search Warrant", Appellant's Record, Vol. 3, p.89
Scott, [1990] 3 S.C.R. 979 at 994
Bogle, supra at para. 16
Respondent's Factum
51.
Page 17
Drug dealing is not a victimless crime,. especially when it involves hard drugs and
is conducted out of a residential neighbourhood. Hard drugs bring crime. 40 Ironically,
the Appellant had reported that someone had tried to break into his apartment by prying
open the lock on his door the very day he sold cocaine to Officer Mathews. 41 The crime
reported to the police in this case was serious, and threatened to have a profound
impact on the quality of life of its victims, amongst them the other residents of 2801 Jane
Street in whose apartment building the Appellant's drug dealing took place.
52.
Information from the public led police to a single locatio,n in an attempt to
investigate a difficult-to-detect but highly harmful crime. Limited investigative tools were
available, and using an undercover officer to pose as a potential drug purchaser was an
effective and low-impact method of infiltrating the suspect area to investigate the tip and
attempt to identify the offender. This was a bona fide inquiry as described in Mack and
Barnes, and no entrapment took place.
IV.
A Reasonable Suspicion Existed Before Officer Mathews Even Spoke
53.
Officer Mathews had a reasonable suspicion the moment he got off the elevator
and the Appellant told him to "come with me", even tho'ugh, as defence counsel put it, he
"didn't know him from Adam".42
The trial jUdge erred in finding that a reasonable
suspicion had not arisen at that point.
see R. v. Toth, [2005) NW.T.J. No. 101 (NW.T.T.C.) at paras. 16-17 for a compilation of judicial comment on the
impact of cocaine trafficking.
41 Trial Exhibit 1: "Search Warrant", Appellant's Record, Vol. 3, p.89
42 Transcript of Proceedings, June 4 2008, Appellant's Record, Vol. 1 p.100. lines 26-28
40
Respondent's Factum
54.
Page 18
Although the investigation unfolded extremely. quickly, once the Appellant
engaged Officer Mathews, virtually every facet of the informant's tip gained
corroboration. Specifically, the officer had the following pieces of objectively discernable
information:
i.
A member of the public reported that a drug dealer was operating on the
1i
h
floor of 2801 Jane Street;
ii. 2801 Jane Street is a real address, and an apartment building is located
there;
iii. the complainant reported that the dealer was a black male;
iv. on the twelfth floor of that apartment building, a complete stranger
approached him, made eye contact and initiated a conversation;
v. that stranger immediately told the officer to "come with me", without any
greeting or introduction, or other explanation;
vi. that 'stranger was a black male, just as in the complainant's tip.
55.
The Appellant was investigated because he matched the details of the tip and did
something completely consistent with being a drug dealer: namely, invite a stranger into
his home the moment he met him for the first time, in terse and context-free language.
Officer Mathews was entitled to put two-and-two together, match the tip to the
Appellant's behavior, and form a reasonable suspicion that he was a drug dealer.
Respondent's Factum
56.
Page 19
While innocent explanations for the Appellant's behaviour were still possible, that
does not take away from the reasonableness of suspecting ,that he was the man
identified in the tip. A reasonable suspicion "will much more frequently be wrong than
will reasonable and probable grounds,,43 and is a "minimal level of belief which does not
rule out the possibility of innocent conduct or "other reasonable possibilities".44
57.
The information available at that moment provided the "constellation of
objectively discernable facts,,45 necessary to meet the not "unduly onerous"46 and
"necessarily... low,,47 standard of reasonable suspicion. 48 Nothing Officer Mathews did in
this case could constitute random virtue-testing.
There was no entrapment, as the
Ontario Court of Appeal correctly concluded, and this appeal should be dismissed.
v.
Procedural Issues: Timing and Remedy
The Nature of Entrapment
58.
The rationale underlying entrapment explains both why the issue is decided after
a finding of guilt, and why the remedy is a stay of proceedings, not exclusion of
evidence. From the beginning, this Court has defined entrapment as an offspring of
abuse of process. 49
Most crucially, the Court has held that entrapment exists to
maintain the integrity of the administration of justice, not to advance the personal rights
and interests of the accused. 50 As Lamer C.J. explained in R. v. Mack:
51
T. Quigley, "Brief Investigative Detentions: A Critique of R. v. Simpson" (2004) 41 Alta. L. Rev. 935, at para. 20
R. v. Williams, supra at 44, citing United States v. Gould, 364 F. 3d 578 at 593 (5th Cir. 2004)
45 R. V. Simpson (1993),79 C.C.C. (3d) 482 at 501 (Ont. C.A.)
46 R. V. Mack, [1988] 2 S.C.R. 903 at 958
47 R. V. Cahill (1992), 13 C.R. (4th) 327 (B.C.C.A.) at 339
48 R. V. Kang-Brown, [2008] 1 S.C.R. 456 at paras. 75-76, see also R. V. Jacques. [1996] 3 S.C.R. 312 at paras 24
and 52
49 R. V. Amato, [1982] 2 S.CR 418 at 453 to 454
50 R. v. Mack, supra at 975
43
44
Respondent's Factum
Page 20
The stay of the prosecution of the accused is the manifestation 9f the
court's disapproval of the state's conduct. The issuance of the stay
obviously benefits the accused but the Court is primarily concerned with
a larger issue: the maintenance of public confidence in the legal and.
judicial process. In this way, the benefit to the accused is really a
derivative one. We should affirm the decision of Estey J. in Amato,
supra, that the basis upon which entrapment is recognized lies in the
need to preserve the purity of administration of justice. '
59.
In cases of entrapment, two parties enter the court with unclean hands: the
accused who has willingly committed a criminal offence, and the police who improperly
instigated the crime. Neither the accused nor the state has the moral standing to
demand their preferred outcome - be it acquittal or conviction. The court, expressing its
equal disapproval for the accused's criminality and the state's complicity, sends them
both home without succor. 52
The 'Entrapped' Accused is Guilty & his Trial is Fair
60.
It is important that this Court explicitly recognized in Pearson that entrapment
does not render the accused's trial unfair. 53 The accused who claims entrapment is not
innocent. 54 Like the Appellant, all accused who claim entrapment have committed a
"
crime of their own volition.
It is neither unfair nor inconsistent with the principles of
fundamental justice for them to have been arrested and brought before the courts..
61.
R.
R.
53 R.
54 R.
55 R.
51
52
Lord Justice Hoffman recently summarized the Canadian approach:
v.
v.
v.
v.
v.
Mack, supra at 942 [original emphasis]
Mack, supra at 943 to 944
Pearson, supra, at para.1 0
Mack, supra at 975
Looseley Attorney General's Reference (No.3 of 2000), supra. at para. 39 per Hoffman L.J.
55
Respondent's Factum
Page 21
... a stay should be granted not because the accused was not guilty or
because he could not receive a fair trial or to discipline the police but to
protect the integrity of the criminal justice system. [emphasis added)
62.
Fundamentally, 'entrapment is not about the accused. Unlike a Charter claim in
which the accused alleges, for instance, ,that the police detained, handcuffed and
searched him without grounds, thereby violating his personal rights, entrapment involves
a policy-level societal complaint, which the accused happens to have standing to
advance because he is the one before the courts. The benefit to the accused is not
remedial, but rather a collateral result of the court distancing itself from the police
conduct which instigated the proceedings. Indeed, the 'windfall' nature of the result for
the guilty accused who escapes punishment for his crime, is reflected in the high
I
threshold which the accused must meet to be granted a stay.
Timing - Entrapment Only Arises if the Accused is Found GUilty
63.
This Court has always insisted that the substantive guilt or innocence of the
accused be proven beyond a reasonable doubt, either at trial or by admission, before
entrapment is considered. 56 The reasons of the majority57 on this issue in Pearson merit
quoting at length: 58
In R. v. Mack... this Court recognized entrapment as an issue that could
in the proper circumstances be raised by an accused following a finding
of guilt to stay the proceedings against him prior to the entering of a
formal order of conviction.
Entrapment is a unique area of the criminal law. In our view, it has been
somewhat inappropriately referred to as an affirmative defence. In our
opinion, that misdescribes it.
56
57
58
R. v. Pearson, supra at paras. 6-12, 26
Both the majority and concurring reasons held that entrapment is to be decided only after a finding of guilt.
R. v, Pearson, supra at 625 to 626
.
Respondent's Factum
Page 22
It is, in fact, completely separate from the issue of guilt or innocence as
is reflected by the fact that itis dealt with at a separate proceeding from
the trial on the merits, as directed by Mack and implemented in this
appeal.
That entrapment is not a conventional avenue of defence is clear from
the circumstances under which it is raised. It arises after a fair trial has
found the accused guilty.
One of the most important distinguishing features of entrapment is that
it does not bring into play the presumption of innocence. Unlike other
defence protections, entrapment is not related to the innocence of the
accused but to the faulty conduct of the state. Once the accused is
found guilty of the offence, the accused alone bears the burden of
establishing that the conduct of the Crown and/or the police amounted
to an abuse of process deserving of a stay of proceedings, a standard
this Court has held will arise only in the clearest of cases: [cites
ommitted] [emphasis added]
The Principled Reason for Determining Guilt First
64.
It follows from the principles laid down by this Court that a stay of proceedings for
entrapment does not, and is not intended to, vindicate the accused. Therefore, where
an acquittal is warranted on the merits of case, it should be granted. As Lamer ·C.J.
stated in Mack:
59
... before a judge considers whether a stay of proceedings lies because
of entrapment, it must be absolutely clear that the Crown had
discharged its burden of proving beyond a reasonable doubt that the
accused had committed all the essential elements of the offence. If this
is not clear and there is a jury, the guilt or innocence of the accused
must be determined apart from evidence which is relevant only to the
issue of entrapment. This protects the right of an accused to an acquittal
where the circumstances so warrant. This is a superior outcome to
being found gUilty but having the case stayed without a conviction being
entered, and gives effect to a relevant difference in moral
blameworthiness between different accused.
59
R. v. Mack, supra at 972
Respondent's Factum
Page 23
The Practical Reason for Determining Guilt First
65.
Entrapment operates by preventing the abuse of process which would arise upon
conviction and punishment of an accused caught in a police-engineered offence. As
Nicholls L.J. stated in R. v. Looseley, "[e]ntrapment assumes the defendant did the
prohibited act, with the necessary intent, and without duress."5o Therefore, as a matter of
principle, it operates independent of, and subsequent to, a finding that the accused is
guilty.
66.
It would be wasteful of judicial resources for an accused to claim entrapment but,
if unsuccessful, then require a trial to prove the very facts upon which his entrapment
claim was based.
51
There is no practical or principled reason for allowing an accused to
I
take the contingent position that: 'if this happened, it would have been entrapment...but
if it wasn't entrapment it wasn't me".
67.
The procedure for determining entrapment claims, as framed by this Court in
Mack and Pearson, is a time-tested solution to the problem it addresses. It is principled,
easy to apply in practice and does not contribute to the proliferation of unwieldy pre-trial
proceedings in the criminal courtS. 52 From a procedural standpoint, the law of
entrapment works. There is no reason to alter it.
v. Looseley, supra at para. 10
.
In Pearson, this Court held that re-trials on the issue of entrapment should be limited to that issue, without the
accused being entitled to another full trial on the merits. The Court held that such as retrial would be wasteful and
unnecessary to fulfill the Charter's imperatives. By extension, the same reasoning applies to calling the same
evidence twice: once before the judge on a voir dire and then again before the jury: R. v. Pearson, supra at 627
62 The Hon. Justice Michael Moldaver, "Long Criminal Trials: Masters of a System They are Meant to Serve" (2006)
32 C.R. (6t~ 316 at 319.
..
60 R
61
Respondent's Factum
Page 24
The Remedy for Entrapment is a Stay
68.
Since entrapment is about protecting the integrity of the administration of justice,
not the personal interests of the accused, a stay of proceedings is the logical remedy.
The Court of Appeal's reasoning on this point is persuasive: 63
A court considers s. 24(2) of the Charier where the state has improperly
obtained evidence of an offence. A court considers entrapment where
the accused alleges the state has improperly brought about the
commission of the offence. Under s. 24(2), the court must determine
whether the· admission of the evidence would compromise the fairness
of the trial. On a claim of entrapment. the court does not consider the
fairness of the trial, but instead whether it was fair that there was a trial.
These considerations suggest that a s. 24(2) remedy is ill-suited for a
finding of entrapment. [emphasis added]
69.
This conclusion precisely reflects the decision in this Court in Mack that: 64
... that objective entrapment, involving police misconduct and not the
accused's state of mind, is a question to be decided by the trial judge,
and that the proper remedy is a stay of proceedings.
70.
As described above, this Court has been clear that entrapment does not make
evidence of the accused's crimes inadmissible,65 nor does it make admission of that
evidence unfair. 66
Rather, as the House of Lords stated in Looseley, an abuse of
process crystallizes if, and only if, the court convicts and sentences the accused: 67
there would be a violation of the concept of fairness "if a defendant were
to be convicted and punished for committing a crime which he only
committed because he had been incited, instigated, persuaded,
pressurised or wheedled into committing it by a law enforcement officer.
[emphasis added]
Reasons of the Ontario Court of Appeal, Appellant's Record Vol. 1, pp. 32 to 33, para. 28
R. v. Mack, supra at 967
65 R. v. Pearson, supra at para. 8
66 R. v. Pearson, supra at para.10
67 R. v. Looseley Attorney General's Reference (No.3 of 2000), at para. 109, quoting Lord Bingham of Cornhill C.J. in
Nottingham City Council v Arnin [2000] 1 WLR 1071,1076-1077
63
64
Respondent's Factum
71.
Page 25
Much like the rules for disclosure laid out in Stinchcombe,68 entrapment is a
judicial rule, created by the court which now prevents an unconstitutional result - namely
the abuse of process attendant to entering a conviction in a case of entrapment. Since
the existence of the doctrine prevents the abuse of process from manifesting, it is
redundant to speak of a Charter-remedy for entrapment. The doctrine itself provides the
remedy, namely a stay of proceedings, which avoids the unconstitutional condition.
72.
In entrapment, the question for the court is not whether the accused deserves a
remedy, but whether this is one the "clearest of cases" 69 in which the prosecution for a
proven crime must be stayed to protect the administration of justice.
Where that
threshold is met, a stay is the appropriate result. The following passage from R. v.
Jewitt,70 adopted in Mack, succinctly describes the Court's approach to the operation of
entrapment hea'rings.
Explaining why a stay is granted, as opposed to an acquittal,
Dickson C.J. said this: 71
The stay of proceedings for abuse of process is given as a substitute for
an acquittal because, while on the merits the accused may not deserve
an acquittal, the Crown by its abuse of process is disentitled to a
conviction. [original emphasis]
73.
For similar reasons, Professor Paciocco has also suggested that a stay of
proceedings is the appropriate remedy for entrapment. In assessing the rationales for
the jurisdiction of courts to stay proceedings, he noted there were two types of abuse of
R. v. Stinchcombe [1991]3 S.C.R. 326. If the entrapment doctrine didn't exist, the Charier would see to its creation
under s.7, as an expression of the principles of fundamental justice. As it is, entrapment developed in parallel to the
Charier, and is thus best conceived of as a free-standing rule which advances a Charier-protected principle,
69 R. v. Mack, supra at 940-941,974
70 R. v. Jewitt, [1985]2 S.C.R. 128
71 R. v. Mack, supra at 943 to 944
68
Respondent's Factum
Page 26
process: conduct which could affect the fairness of the trial 72 , and conduct which could
impact on the court itself. He placed entrapment in the latter category: 73
Entrapment is a form of abuse that falls into this category and where a
stay of proceedings may be appropriate.
In entrapment cases,
prejudice flows from the conviction of an accused for an offence incited
by State agents which the accused might not otherwise have
committed.
74.
It is worth noting that there is foreign academic support for the Canadian
conception of entrapment being the most theoretically coherent. Professor Ho, who has
compared the approaches to entrapment in various jurisdictions,74 emphasizes that the
preferred approach is to conceptualize entrapment as being driven by the state's lack of
moral standing to prosecute, rather than the presence of a positive right on behalf of the
accused. 75
Presenting to the Conference of the International Society for the Reform of
Criminal Law in 2008, he emphasized that it is an error-in-concept to see entrapment in
terms of the state having obtained evidence improperly.
Rather, consistent with this
Court's jurisprudence, Professor Ho posited that a remedy is granted for entrapment
because of the state's role in the crime, not because the accused is morally entitled to
relief: 76
Entrapment undermines the propriety of a criminal prosecution. To see
this, we need a proper understanding of the purpose of a criminal trial.
The trial is more than a simple search for the truth, aimed only at
convicting the guilty and acquitting the innocent. It is a process of
calling the state to account for its request that a citizen be convicted
(condemned) and sentenced; the central point is the public provision by
the state of justification for that which they seek from the court and
critical scrutiny by the court of that justification.
Paciocco, David M. "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process
Concept." (1991) 15 Criminal L.J. 315 at pages 332 to 333
73 Ibid. at pp. 335, 345-346
nd
74 Professor Ho Hock Lai, Judicial Responses to Entrapment, presented at the 22
Conference of the International
Society for the Reform of Criminal Law, July 11-152008, Dublin, pp. 8 to 19
75 Ibid. at p. 23
76 Ibid. at p. 20
72
Respondent's Factum
Page 27
As a precondition. the state must have the moral standing to blame the
accused for the alleged act. That standing is self-forfeited where it had
instigated him to behave in that way. This is the soundest reason for
staying the proceedings against him. [emphasis added]
How to Handle 'Derivative' Evidence
75.
The Appellant in this case seeks to change the remedy from a stay of
proceedings to an exclusion of evidence under s.24(2) in order to provide a basis for
attacking the search warrant which uncovered his stash of drugs subsequent to his
trafficking. He cannot claim any relief under the entrapment doctrine for his possession
of those drugs directly, since the police had nothing to do with their presence in his
apartment nor their availability for sale;
Rather, he wishes to leverage his claim of
entrapment vis-a-vis his 'sales to Officer Mathews to undercut the grounds which formed
the basis of the search warrant.
76.
The Respondent's position is that the absence of entrapment on the facts of this
case makes any analysis of how courts' should handle 'derivative' evidence purely
theoretical, unnecessary and unwise to decide in the absence of concrete findings to
which the analysis can. be applied.
77.
If the Court wishes to address this issue, the Respondent submits that, if the
police discover other criminal offences in the course of an investigation which is
determined to have constituted entrapment, it remains more principled to ask whether, in
all the circumstances, the protection of the administration of justice requires a stay.
Respondent's Factum
78.
Page 28
In keeping w,ith a contextual approach to remedies, the court should consider the
(i) gravity of the offence; (ii) the degree of impropriety in the police conduct; (iii) the
impact of the 'entrapping' conduct on the accused; (iv) the good faith of the police (or
lack thereof) and any other relevant circumstances.
79.
While these factors bear a resemblance to the s.24(2) analysis prescribed in R. v.
Grant, that analysis is ultimately inapt because it remains focused in large measure on
the specific impact on the accused. 77 Often with entrapment, especially in the random
virtue-testing branch, there is no measurable impact on the "Charter-protected interests
of the accused".78 As we have seen, the focus of entrapment lies elsewhere, making the
s.24(2) test an awkward fit in this context. Indeed, as this Court stated in Pearson, "[a]
claim of entrapment. .. does not affect the admissibility of any evidence which might
influence the jury on the merits".79
80.
Because the 'follow-on' offences discovered in the course of the impugned
investigation will not be the product of the entrapment, the court should not automatically
stay these charges simply because it determines that a stay is appropriate on the
charges which are directly tainted. Rather, the court should apply the well-established
standarq of staying charges only in the clearest of cases. 80
77
R.
v. Grant, [2009] S.C.R. 353 at paras. 72ff
76 Ibid.
79
60
at paras. 76 to 78 [emphasis added]
R. v. Pearson, supra at para. 8
United States of America v. Cobb, [2001]1 S. C. R. 587 at para 31
Respondent's Factum
Page 29
Conclusion
81.
There was no entrapment in this case. The police responded appropriately to a
specific complaint, acted properly in the course of a bona fide inquiry, and were entitled
to engage with the Appellant and offer him a chance to traffic cocaine when they did.
PART IV - COSTS
82.
The Crown does not seek costs.
PART V - NATURE OF ORDER SOUGHT
83.
That Crown asks that the appeal be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITIED.
Dated at Toronto, this 1st day of October, 2010.
Nick Devlin
Counsel for the Respondent
Lisa Csele
Respondent's Factum
Page 30
PART VI - TABLE OF AUTHORITIES
A) CASES
ParaQrah(s) Cited
R. v. Amato, [1982] 2 S.C.R. 418
20, 58
R. v. Barnes, [1991] 1 S.C.R. 449
21,23,39,42
R. v. Bogle, [1996] O.J. No. 1768 (Ont. Gen. Div.)
41,50
R. v. Cahill (1992),13 C.R. (4th) 327 (B.C.C.A.)
57
R. v. Calder, [2004] O.J. No. 451 (C.A.)
22
R. v. Debot, [1989] 2 S.C.R. 1140
42
22
R. v. Dedman [1985] 2 S. C.R. 2
"
R. v. Grafe (1987) 36 C.C.C. (3d) 267 (C.A)
R. v. Grant, [2009] S.C.R. 353
22
79
R. v. Jacques, [1996] 3 S.C.R. 312
57
R. v. Jewitt [1985] 2 S.C.R. 128
20, 72
R. v. Kang-Brown, [2008] 1 S.C.R. 456
57
R. v. Looseley Attorney General's Reference (No. 3 of
34,61,65,70
2000), [2001] 4 AII.E.R. 897 (H.L.)
R. v. Mack, [1988] 2 S.C.R. 903
R. v. Pearson, [1998] 3 S.C.R. 620
Peart v. Peel Regional Police Services Bd, [2006] O.J.
No. 4457 C.A.)
20,21,22,23,39,40,
57,58,59,60,64,69,
72
20,60,63,66,70,79
22
R. v. Pepper, [2010] B.C.J. No. 786 (S.C.J.)
26
R. v. Plant, [1993] 3 S.C.R. 281
42
R. v. Salem (1997) NSW LEXIS 1170 (H.C.)
46
Respondent's Factum
Page 31
R. v. Scott, [1990] 3 S.C.R. 979
48
R.v. Sherman (1977), 36 C.C.C. (2d) 207 (B.C.C.A.)
27
R. v. Simpson (1993),79 C.C.C. (3d) 482 (C.A.)
57
R. v. Toth, [2005] N.W.T.J. No. 101 (N.W.1.T.C.)
51
United States of America v. Cobb, [2001] 1 S.C.R. 587
80
R. v. Williams, [2010] O.J. No. 1324 (S.C.J.)
31,32,33,56
B) OTHERS
Paragrah(s) Cited
Professor Ho Hock Lai, Judicial Responses to
Entrapment, presented at the 22 nd Conference of the
International Society for the Reform of Criminal Law,
July 11-15 2008, Dublin
74
The Hon. Justice Michael Moldaver, "Long Criminal
Trials: Masters of a System They are Meant to Serve"
th
(2006) 32 C.R. (6 ) 316
67
Brendon Murphy and John Anderson, '''Mates, Mr. Big
and the Unwary': Ongoing Supply and its Relationship to
Entrapment", 2007-08, 19 Current Issues in Criminal
Justice 5
22,45
Paciocco, David M. "The Stay of Proceedings as a
Remedy in Criminal Cases: Abusing the Abuse of
Process Concept." (1991) 15 Criminal L.J. 315
73
1. Quigley, "Brief Investigative Detentions: A Critique of
R. v. Simpson" (2004) 41 Alta. L. Rev. 935
56
Page 32
Respondent's Factum
PART VII- APPLICABLE LEGISLATION
- none-