COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmad, 2018 ONCA 534

DATE: 20180611

DOCKET: C60881, C58775 and C59313

Hourigan, Brown JJ.A. and Himel J. (
ad hoc
)

DOCKET:
    C60881

BETWEEN

Her Majesty the Queen

Respondent

and

Javid Ahmad

Appellant

DOCKET: C58775
    and C59313

AND BETWEEN

Her Majesty the Queen

Appellant/Respondent in cross-appeal

and

Landon Williams

Respondent/Appellant in cross-appeal

Michael Lacy and Bryan Badali, for Javid Ahmad

Breese Davies and Owen Goddard, for Landon Williams

Nick Devlin and David Quayat, for Her Majesty the Queen

Heard: December 14, 2017

On appeal from the conviction entered on June 25, 2014 by
    Justice Beth Allen of the Superior Court of Justice, with reasons reported at
    2014 ONSC 3818, and from the dismissal of an application for a stay of
    proceedings on March 13, 2015, with reasons reported at 2015 ONSC 652, and from
    the sentence imposed on August 25, 2015, with reasons reported at 2015 ONSC
    4269.

And on appeal from the stay of proceedings entered on
    April 15, 2014, by Justice Gary Trotter of the Superior Court of Justice, with
    reasons reported at 2014 ONSC 2370.

And on appeal from the conviction entered on May 16, 2014
    by Justice Gary Trotter of the Superior Court of Justice, with reasons reported
    at 2014 ONSC 3005.

Hourigan J.A.:

Introduction

[1]

The primary issue on these appeals is the availability of the defence of
    entrapment in the context of police investigations of dial‑a‑dope
    schemes, which are operations in which a prospective drug buyer contacts a
    seller by phone and arranges to purchase drugs at a specific location. Acting
    on tips, the police in both cases contacted Mr. Williams and Mr. Ahmad respectively
    and arranged to purchase drugs from them. After the two men were found guilty
    of various drug-related and other offences, they applied for stays of
    proceedings on the basis that the police had entrapped them into committing the
    offences.

[2]

In Mr. Williams case, the trial judge agreed that he had been entrapped
    and stayed charges against him for trafficking crack cocaine and possession of
    the proceeds of crime. He rejected Mr. Williams argument, however, that
    charges stemming from his arrest for firearm, ammunition, and breach of
    recognizance offences should also be stayed because they were inextricably
    linked to the entrapment, or alternatively, that the evidence of those
    offences should be excluded under s. 24(2) of the
Charter
. Mr.
    Williams was accordingly convicted of the other offences. The Crown appeals from
    the stay of the trafficking and proceeds of crime charges and Mr. Williams
    cross-appeals against his firearm, ammunition, and breach convictions.

[3]

In Mr. Ahmads case, the trial judge rejected his application for a stay
    of proceedings on the basis of entrapment. He was convicted of possession of
    cocaine for the purpose of trafficking and possession of the proceeds of crime.
    He appeals against his conviction and sentence.

[4]

For the reasons set forth below, I would allow the Crown appeal in Mr.
    Williams case and dismiss his cross-appeal. I would also dismiss Mr. Ahmads
    appeal. In my view, the police in both cases were acting pursuant to a
bona
    fide
inquiry as the term should properly be understood in current policing
    and accordingly the defence of entrapment is not available to Mr. Williams or
    Mr. Ahmad.

Background Facts

(a)

Mr. Williams Appeal

[5]

The investigation that led to the charges against Mr. Williams began
    when Police Constable Christopher Fitkin of the Toronto Police Service (TPS)
    received a tip from a confidential source. The source indicated that a person
    by the name of Jay was selling cocaine in a particular area of Toronto and
    provided Jays phone number.

[6]

Based on the source information, P.C. Fitkin put together a Person of
    Interest (POI) package identifying Mr. Williams as Jay. It is not clear how
    the link between Mr. Williams and Jay was made. The POI package included Mr.
    Williams photograph, date of birth, physical description, and home address. It
    specified that Mr. Williams used the alias Jay and that he had dealt drugs on
    several occasions at 389 Church Street. It included a criminal record check
    that indicated that Mr. Williams had a prior conviction for possession of a narcotic
    and was out on bail for drug offences. Under the heading Source Information,
    the POI package indicated that Mr. Williams was a cocaine dealer in the area
    of 389 Church Street and Yonge & Dundas and provided the phone number he
    used.

[7]

On January 31, 2011, P.C. Fitkin contacted Detective Constable Brooke
    Hewson of the TPS Drug Squad and asked her to investigate by having an
    undercover officer cold call the phone number. In an email sent on January
    31, 2011, with the subject line Drug Dealer JAY, P.C. Fitkin wrote the
    following:

Hey Brooke,

[Redacted sentence]. I have some info as well that
    i was hoping you could try a cold call on. I havent been able to get ahold of
    my source to get a drop name yet but will continue to try.

[Redacted sentence].

Please find attached a POI package that I put
    together about the drug dealer.

P.S. He was done by Margetsons team in 2009.

Thanks Chris

[8]

D.C. Hewson was familiar with Mr. Williams. She had been involved in his
    arrest in 2009 for trafficking cocaine, when Mr. Williams was a young person
    under the
Youth Criminal Justice Act
, S.C. 2002, c. 1. That case had
    ended in 2010 when Mr. Williams pleaded guilty to simple possession of cocaine.

[9]

After receiving P.C. Fitkins email, D.C. Hewson ran the phone number
    provided through TPS databases, but the search derived no information. She made
    no inquiries of P.C. Fitkin about his sources reliability or about how the
    name Jay had been connected to Mr. Williams.

[10]

On
    February 11, 2011, the TPS Drug Squad held a briefing on the case and
    determined that D.C. Tony Canepa would make the cold call to the phone number. D.C.
    Canepa, a 39-year veteran of the TPS at the time of trial, was provided some
    basic details regarding the target, namely his name (Jay), telephone number,
    and the nature of the drug. D.C. Canepa was also shown a photo of Mr. Williams,
    and D.C. Hewson told him that she had dealt with Mr. Williams in the past, but
    did not go into detail. Based on his past experience as an undercover police
    officer, D.C. Canepa chose not to ask for further information before making the
    call.

[11]

That
    same evening, D.C. Canepa called the number he was given. The following
    conversation occurred:

Male: Hello.

Canepa: Jay?

Male: Yeah.

Canepa: You around?

Male: Who is this?

Canepa: Its Vinny.

Male: Vinny who?

Canepa: Vinny. Jesse from Queen and Jarvis gave
    me your name  your number. Said you could help me out. I need 80.

Male: Okay. You have to come to me.

Canepa: Okay. Where?

Male: Queen and Dufferin.

Canepa: Okay. Itll take me a few because Im at
    Yonge & Bloor.

Male: Okay, hurry up.

Canepa: Ill call you when I get there.

Male: Okay. What you want, soft or hard?

Canepa: Hard. Hard buddy.

Male: Okay.

[12]

D.C. Canepa testified that in saying I need 80 and Hard, he was
    looking for $80 of crack cocaine. He also testified that You around? was
    meant to ask whether the male was in the area and available to deal.

[13]

After several further calls, D.C. Canepa met Mr. Williams and bought
    $80 of crack cocaine from him. On February 22, 2011, he arranged a second
    transaction and bought another $80 of crack cocaine.

[14]

On March 15, 2011, police arrested Mr. Williams. During a subsequent
    search, police found a handgun and a box of ammunition in his clothing. He was
    also carrying a small amount of marijuana and two cell phones.

[15]

Mr. Williams was charged with
trafficking crack cocaine,
    possession of the proceeds of crime, and various firearm, ammunition, and
    breach of recognizance offences. The trafficking and proceeds of crime charges
    related to the drug transactions; the other offences arose from the search
    subsequent to his arrest.

[16]

At
    trial, Mr. Williams admitted that the evidence established his guilt of the
    drug transaction offences but argued that the charges should be stayed on the
    basis that they were the product of entrapment. The trial judge agreed and
    entered a stay of proceedings on those charges. The trial judge reasoned that
    the police did not have a reasonable suspicion that Mr. Williams was involved
    in drug trafficking when they first provided him with the opportunity to commit
    an offence. As a result, the trial judge stayed the drug transaction charges.

[17]

Based
    on the same police conduct, Mr. Williams also sought a stay
of
    the charges arising from his arrest or, in the alternative, the exclusion of the
    evidence of those offences under s. 24(2) of the
Charter
. The trial judge disagreed, concluding that the charges from the
    arrest were not the product of entrapment and that the evidence was not
    obtained in a manner that infringed Mr. Williams s. 7
Charter
rights. He further concluded that there were no breaches of Mr.
    Williams ss. 8 and 9
Charter
rights.

[18]

The Crown appeals and Mr. Williams cross-appeals. The Crown argues that
    Mr. Williams was not entrapped and that the stay of proceedings on the drug
    charges should be set aside and a conviction entered. Mr. Williams
    cross-appeals, arguing that the charges arising from his arrest should be
    stayed as an abuse of process because they are inextricably linked to the
    entrapment, or that the firearm and ammunition evidence should be excluded
    under s. 24(2) of the
Charter
because
    the evidence was obtained in a manner that infringed Mr. Williams s. 7
Charter
rights
.

(b)

Mr. Ahmads Appeal

[19]

On April 19, 2012, D.C. Michael Limsiaco, a member of the TPS Drug
    Squad, received information from another police officer about a possible
    dial-a-dope scheme. The tipster had indicated that an individual by the name of
    Romeo was selling powder cocaine and provided the phone number he was using.

[20]

Following up on the tip, D.C. Limsiaco called the number. He did not
    undertake any investigation into the information that the other officer
    provided him before doing so. He testified that he made two calls, and made notes
    about 20 to 30 minutes after the second call. He indicated that his notes were
    not verbatim, but there was no dispute that they substantively reflected the content
    of the calls. According to D.C. Limsiacos notes, the following conversation
    occurred during the first call:

Male: Hello.

Limsiaco: Hey, Its Mike. Matt said I can give
    you a call. This is Romeo?

Male: He did, did he?

Limsiaco: Yeah, said you can help me out?

Male: What do you need?

Limsiaco: Two soft.

Male: Hold on, Ill get back to you.

Limsiaco: Alright.

[21]

About 15 minutes later, the male called D.C. Limsiaco back and the
    following exchange occurred:

Limsiaco: Hello.

Male: So what do you need again?

Limsiaco: Two soft. Where you at?

Male: Can meet you at Yorkdale.

Limsiaco: Sure. $160 good, an hour?

Male: $140, hours good, go by theatres.

Limsiaco: Cool.

[22]

D.C. Limsiaco testified that two soft referred to two ounces of
    powder cocaine. He further explained that Yeah, said you can help me out? is
    a common way to request drugs in the drug trade and that What do you need? is
    a common way to ask what kind of drugs a person wants.

[23]

Following the calls, D.C. Limsiaco and other members of the TPS Drug
    Squad went to Yorkdale Mall to purchase the drugs. D.C. Limsiaco received a
    text from the same phone number he had called directing him to go to the tables
    near the theatre. Once near the theatre, he called the phone number and saw a
    male walking toward him answer his phone. He described the male as looking
    Middle Eastern, measuring about 58, weighing 160 pounds, wearing a black
    leather coat and black jeans, and having bushy eyebrows, short dark hair, and
    black-rimmed glasses. Detective Rodney Benson, another member of the
    surveillance team, had a direct view of the male and provided a similar
    description.

[24]

D.C. Limsiaco and the male went outside the mall. The male gave D.C. Limsiaco
    two small bags of cocaine and D.C. Limsiaco gave him $140. D.C. Limsiaco walked
    away and gave the take-down signal.

[25]

Police immediately arrested Mr. Ahmad. Two additional members of the
    team said that the male they arrested met the description that Det. Benson had
    provided them over the radio. During a subsequent search of Mr. Ahmads pockets
    and backpack, police recovered a large quantity of cocaine and cash (including
    the $140 in buy money from D.C. Limsiaco), a beige envelope with Romeo
    written on it, a cell phone that was confirmed to use the number that D.C.
    Limsiaco called, and another cell phone.

[26]

Mr. Ahmad was charged with trafficking cocaine, possession of cocaine
    for the purpose of trafficking, and possession of the proceeds of
    crime. The Crown withdrew the trafficking charge at the preliminary
    hearing.

[27]

At trial, Mr. Ahmad conceded that the substance seized by police was
    cocaine, but argued that he did not have knowledge or control of the drugs.
    More specifically, Mr. Ahmad testified that on the day of the incident, he had
    met his friend Mikey at Yorkdale Mall and implied that it was Mikey, not him,
    who had sold D.C. Limsiaco the drugs. The trial judge found that Mr. Ahmads
    evidence was not believable and, preferring the evidence of the Crowns
    witnesses, convicted Mr. Ahmad.

[28]

Mr. Ahmad applied for a stay of proceedings on the basis that the
    police had entrapped him, but the trial judge dismissed the application. The
    trial judge determined that D.C. Limsiaco formed a reasonable suspicion that
    Mr. Ahmad was engaged in criminal activity when Mr. Ahmad asked him, What do
    you need? Since the offer to buy drugs was not made until after this point and
    the steps in the preceding conversation were legitimate investigative steps,
    not opportunities for Mr. Ahmad to commit a crime, there was no entrapment. The
    trial judge accordingly dismissed the stay application. She sentenced Mr. Ahmad
    to a term of imprisonment of two years less one day.

Issues

[29]

The Williams and Ahmad appeals raise the
    common issue of the scope of the entrapment defence in the context of
    dial-a-dope investigations. As noted above, Mr. Williams cross-appeals his
    firearm, ammunition, and breach convictions, arguing that they too should be
    stayed on the basis of entrapment. Mr. Ahmad appeals his conviction on the
    ground that the trial judge erred in law in assessing his credibility and seeks
    leave to appeal his sentence on the basis that it is manifestly unfit.

Analysis

(a)

Entrapment

(i)

General principles

[30]

The seminal authority on the modern law of
    entrapment is the Supreme Courts decision in
R. v. Mack
, [1988] 2 S.C.R. 903. In setting out the
    contours of the entrapment doctrine, Lamer J., as he then was, sought to
    balance two competing objectives. On the one hand, he recognized that the
    police must be given considerable latitude in their investigation of crime,
    especially consensual crimes such as drug trafficking where traditional
    investigative techniques may be ineffective:
Mack
, at pp. 916-17;
R. v. Imoro
, 2010 ONCA 122, 251 C.C.C. (3d) 131, at para.
    8, affirmed: 2010 SCC 50, [2010] 3 S.C.R. 62. On the other hand, he
    acknowledged that the police do not have unlimited power to randomly test the
    virtue of individuals and manipulate them to obtain convictions:
Mack
, at pp. 941, 959;
Imoro
, at para. 9.

[31]

Entrapment is a variant of the abuse of
    process doctrine. If an accused can show that the strategy the state used to
    obtain a conviction exceeded permissible limits, a judicial condonation of the
    prosecution would by definition offend the community and the accused is
    entitled to a stay of proceedings:
Mack
, at p. 976. However, given the serious nature of an
    entrapment allegation and the substantial leeway given to the state to develop
    techniques to fight crime, a finding of entrapment and a stay of proceedings
    should be granted only in the clearest of cases:
Mack
, at pp. 975-76. The accused must establish
    the defence on a balance of probabilities:
Mack
, at p. 975.

[32]

In
Mack
, at pp. 964-65, the Supreme Court set out the two
    principal categories of entrapment. The defence is available when either:

1)
the authorities provide a person with
    an opportunity to commit an offence without acting on a reasonable suspicion
    that this person is already engaged in criminal activity or pursuant to a
bona
    fide
inquiry; or

2) although having such a reasonable suspicion or acting in
    the course of a
bona fide
inquiry, they go beyond providing an
    opportunity and induce the commission of an offence.

[33]

The
    parties in both these appeals agree that there was no inducement and thus the
    issue of whether Mr. Williams and Mr. Ahmad were entrapped should be determined
    under the first category. More specifically, at trial, both cases were
    principally argued on the basis of whether the police had a reasonable
    suspicion that Mr. Ahmad and Mr. Williams were already engaged in criminal
    activity when the police presented them an opportunity to commit an offence.

[34]

In Mr. Williams case, the trial judge found that the
    police did not have reasonable suspicion that he was involved in drug
    trafficking when they provided him the opportunity to commit an offence by
    saying I need 80.

[35]

The trial judge reasoned that the police were allowed
    to investigate the tip by calling the number and engaging Mr. Williams in
    conversation. They could not, however, give him an opportunity to commit a
    crime until they had formed a reasonable suspicion that he was engaged in
    selling drugs. In the trial judges view, D.C. Canepas request to purchase a
    specific quantity of drugs amounted to an opportunity and was made in the
    absence of a reasonable suspicion that Mr. Williams was engaged in selling
    drugs. As a result, he had been entrapped and was entitled to a stay of the
    drug-related charges.

[36]

In Mr. Ahmads case, in contrast, the trial judge
    found that he had not been entrapped. The trial judge explained that it was a
    legitimate first investigative step for the police to call Mr. Ahmad based on
    the information from the tipster.
The
    fact that he did not deny being Romeo or query the name was significant and
    permitted the police to proceed in the conversation. Confirmation that Mr.
    Ahmad was a drug dealer and reasonable suspicion was formed when he asked What
    do you need? in response to D.C. Limsiacos question Can you help me out?
    Importantly, this occurred before any opportunity to sell drugs was given. As a
    result, there was no entrapment.

[37]

Consistent
    with this courts decision in
R. v. Ralph
, 2014 ONCA 3, 313 O.A.C.
    384, at para. 32, leave to appeal refused: [2014] S.C.C.A. No. 262, the trial
    judges in both these cases were
attentive to the words used and
    the sequence of the conversation in determining whether Mr. Williams and Mr.
    Ahmad had been entrapped. As Rosenberg J.A. observed in
Ralph
, [t]he exact words of the telephone conversation are important
    (para. 2).

[38]

The
    trial judges further recognized that the reasonable suspicion requirement
    distinguishes between whether the language police use constitutes a mere
    investigative step, which is permissible absent reasonable suspicion, or an
    opportunity to commit an offence, which is not: see e.g.
Ralph
, at
    para. 32;
Imoro
, at paras. 13-17;
R. v. Olazo
, 2012 BCCA 59,
    316 B.C.A.C. 176, at paras. 19-24. While the line between an investigative step
    and an opportunity is sometimes difficult to draw, the jurisprudence suggests
    that it is crossed in the dial-a-dope context when the police make a specific
    offer to purchase drugs as opposed to engage in a more general conversation
    aimed at confirming a tip: see
Ralph
, at para. 32;
R. v. Swan
, 2009 BCCA 142, 269 B.C.A.C. 38, at para. 29;
    see also
Imoro
, at para. 16. Indeed, if making a specific offer
    to purchase drugs is not an opportunity, it is difficult to imagine what the
    police could say to a suspected drug trafficker that amounts to an opportunity
    but still falls short of inducement.

[39]

At the same time, however, in distinguishing
    between investigative steps and opportunities, courts must not lose sight of
    the underlying purpose of the entrapment doctrine, which is to prevent the
    state from investigating possible illegal activity in a way that offends our
    sense of decency and fair play: see
R. v. Pearson
, [1998] 3 S.C.R. 620, at para. 11;

R. v. Clothier
, 2011 ONCA 27, 273 O.A.C. 162, at para. 47. While courts must be careful
    not to condone unfair police practices, an overly technical approach to the
    entrapment doctrine risks detaching the doctrine from its purpose and unduly
    restricting police conduct.

[40]

Bearing these principles in mind, I return to
Mack
. As noted above,
Mack
sets out two categories of entrapment. These
    appeals concern the first category, under which entrapment
arises if the police provide a person an opportunity
    to commit an offence without acting either: (i) on a reasonable suspicion that
    the person is already engaged in criminal activity, or (ii) pursuant to a
bona
    fide
inquiry. As Lamer J. explained, [t]he
    absence of a reasonable suspicion or a
bona fide
inquiry is significant in assessing the police
    conduct because of the risk that the police will attract people who would not
    otherwise have any involvement in a crime and because it is not a proper use of
    the police power to simply go out and test the virtue of people on a random
    basis:
Mack
, at p. 965.

(ii)

Reasonable suspicion

[41]

Mack
did not define the threshold of evidence required to
    meet the reasonable suspicion standard. Although arising in the context of
    searches, the Supreme Courts comments in
R. v. Chehil
, 2013 SCC 49, [2013] 3 S.C.R. 220, about the
    reasonable suspicion standard are instructive. In that case, Karakatsanis J.
    explained that reasonable suspicion is a robust standard determined on the
    totality of the circumstances, based on objectively discernible facts, and is
    subject to independent and rigorous judicial scrutiny (para. 3). In the
    entrapment context, appellate courts have agreed that the standard requires
    something more than a mere suspicion and something less than a belief based
    upon reasonable and probable grounds:
Chehil
,

at
    para. 26, citing
R. v. Kang-Brown
,
    2008 SCC 18, [2008] 1 S.C.R. 456; see also
R. v. Ayangma
, 2016 PECA 6,
375 Nfld. & P.E.I.R. 73,
at para. 37, leave to appeal refused: [2016] S.C.C.A. No. 271;
Olazo
, at para. 16
. The fact that someone was previously involved in criminal activity in
    the past is not, without more, sufficient to ground a reasonable suspicion:
Mack
, at p. 958.

[42]

In these cases, I agree with Mr. Williams and
    Mr. Ahmad that when the police provided them with the opportunity to sell drugs
    by requesting 80 and two soft, they did not have reasonable suspicion that
    the two men were engaged in criminal activity. In this regard, I part ways with
    the concurrence.

[43]

As the trial judge observed in Mr. Williams
    case, the link between Jay and Mr. Williams was never established, nor was
    any information conveyed to D.C. Hewson or anyone else involved in the
    investigation about the reliability of the source and the information the
    source provided. Although Mr. Williams had a criminal history, this information
    alone could not elevate police suspicion that Mr. Williams was engaged in
    criminal activity above mere suspicion. As a result, the trial judge correctly
    concluded that the police did not have reasonable suspicion that Mr. Williams
    was involved in drug trafficking when they provided him with an opportunity to
    sell drugs.

[44]

Similarly, there was no reasonable suspicion
    that Mr. Ahmad was engaged in drug trafficking when the police presented him
    with the opportunity to sell them drugs. D.C. Limsiaco was given a phone number
    and the name Romeo to connect on the phone with the prospective drug dealer.
    The information was provided to him by another police officer from a tipster. D.C.
    Limsiaco testified that no investigation of the information occurred. There
    were no personal details provided about Romeo other than the name. In my
    view, there was an absence of reasonable suspicion that Mr. Ahmad was engaged
    in criminal activity when the police offered him an opportunity to commit a
    crime.

[45]

The concurrence, in contrast, suggests that
    the undercover officers acquired a reasonable suspicion that Mr. Williams and
    Mr. Ahmad were already engaged in criminal activity early on in their telephone
    conversations. I disagree.

[46]

In my view, the fact that the police received
    a tip in Mr. Williams
case
about
    a person selling drugs named Jay and that the person who answered the call
    acknowledged he was Jay cannot, without more, ground a finding that the
    police had reasonable suspicion that Mr. Williams was already engaged in
    selling drugs. As the trial judge observed, the lack of information concerning
    the tip and how the link was made between Jay and Mr. Williams makes it
    impossible to conclude that the police had reasonable suspicion that Mr.
    Williams was already involved in criminal activity. Furthermore, Mr. Williams
    dated criminal record could not, unless linked to other factors, give rise to a
    reasonable suspicion in this case: see
Mack
, at p. 958.

[47]

Similarly, I disagree with the concurrence
    that the police developed reasonable suspicion that Mr. Ahmad was already
    engaged in criminal activity early on its telephone conversation with him.
D.C.
    Limsiaco admitted that the tipster was unknown to him and that he did not investigate
    the tip or tipster before calling Mr. Ahmad. There was no evidence the police
    made any link between Mr. Ahmad and the individual identified as Romeo in the
    tip before making a call. Moreover, Mr. Ahmad did not confirm that he was
    Romeo during the call.

[48]

I would therefore find that the police did not
    have reasonable suspicion that Mr. Williams and Mr. Ahmad were
engaged in unlawful drug‑related activity
    when they offered the men the opportunity to sell them drugs.

(iii)

Bona fide
inquiry

[49]

The absence of reasonable suspicion that a
    particular target is engaged in criminal activity, however, does not end the
    inquiry. As noted above, the first category of
entrapment set out in
Mack
will
arise
    if the police provide a person an opportunity to commit an offence without
    acting
either
(i) on a
    reasonable suspicion that the person is already engaged in criminal activity,
or
(ii) pursuant to a
bona fide
inquiry. As Lamer J. explained in
Mack
, at p. 956:

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 associated 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.

[50]

The leading case on what constitutes a
bona
    fide
inquiry is
R. v. Barnes
, [1991] 1 S.C.R. 449. In that case, an officer
    working in an area of a city considered to have a drug trafficking problem
    asked to purchase drugs from the accused without reasonable suspicion that the accused
    was already engaged in unlawful drug-related activity. Lamer C.J., writing for
    the majority of the court, held that the accused was not entrapped because the
    police were engaged in a
bona fide
inquiry. As he explained, the police may present an opportunity to
    commit a crime to people associated with a location where it is reasonably
    suspected that criminal activity is taking place, even absent a reasonable
    suspicion that those people are already engaged in criminal activity:
Barnes
, at p. 461. He summarized, at p. 463:

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. [
E
mphasis in original].

[51]

Since the police conduct was motivated by the
    genuine purpose of investigating and repressing criminal activity and the
    police directed their investigation to a suitable area within the city where it
    was reasonably suspected that drug-related crimes were occurring, the majority
    concluded that the police were engaged in a
bona fide
inquiry and there was no entrapment:
Barnes
, at pp. 460-62.

(iv)

Dial-a-dope context

[52]

Barnes
was, of course, decided at a time when cell
    phones were not as ubiquitous as they are today.
More recent jurisprudence has sought to apply the
    entrapment doctrine in the face of new technological realities, including cell
    phones used in dial-a-dope schemes: e.g.
R. v. Henry-Osbourne
, 2017 ONSC 6714, 142 W.C.B. (2d) 646;
R.
    v. Henneh
, 2017 ONSC 4835 (10
    August 2017), Toronto CR-14-90000184-0000;
R. v. Gould
, 2016 ONSC 4069, 131 W.C.B. (2d) 479;
R.
    v. Le
, 2016 BCCA 155, 385 B.C.A.C.
    267, leave to appeal refused: [2016] S.C.C.A. No. 272;
Swan
. Modern technology, including cell phones,
    has changed the way that some crime is committed. In the drug trafficking
    trade, cell phones have become an indispensable tool for dial-a-dope operators.

[53]

The challenge police face in investigating a
    dial-a-dope scheme is that dial-a-dope operations are, by their very nature,
    difficult for the police to detect and prevent: see
R. v. Barrick
, 2012 BCCA 83, 316 B.C.A.C. 232, at para. 13;
Swan
, at para. 34. As
    the Court of Appeal for British Columbia Court of Appeal observed in
Le
, at para. 69:

The dial-a-dope system has made it easy for drug
    dealers to invade neighbourhoods, community parks and schools. There is no set
    location that drug dealers inhabit thanks to the use of the mobile telephone.
    The drug dealers travel throughout communities, and deliver their drugs as
    easily as someone would deliver a pizza. It goes without saying, and is
    apparent in the hundreds of reported cases in this province, that it is highly
    profitable, organized and insidious. It is also unfortunately difficult to
    investigate and detect.

[54]

The absence of a set location in a dial-a-dope
    scheme presents challenges to the existing entrapment framework. As explained
    above,
Mack
and
Barnes
suggest that, in the absence of reasonable
    suspicion that either a person is already engaged in a particular criminal
    activity or the physical location with which that person is associated is a
    place where the particular criminal activity is likely occurring, the police
    may not present the person with an opportunity to commit a crime. While the
    police will be engaged in a
bona fide
inquiry if they direct their investigation to an area
    defined with sufficient precision where it is reasonably suspected that
    criminal activity is occurring, dial-a-dope schemes do not have set locations.
    Rather, because of their mobile nature, a dial-a-dope transaction can occur
    virtually anywhere.

[55]

In my view, however, the absence of a set location in dial-a-dope schemes
    should not foreclose the possibility that the police may be engaged in a
bona
    fide
inquiry when they contact a telephone line associated
    with a dial-a-dope scheme and provide the opportunity to sell drugs. While
Barnes
considered a physical location, it did not foreclose the possibility
    that the police may be engaged in a
bona fide
inquiry even in the absence of a set location. As Lamer J. observed in
Mack
, at p. 956, there may be situations when the police know certain
    other facts, such as a particular location or area where it is reasonably
    suspected that certain criminal activity is occurring, which allow them to
    provide an opportunity to persons not themselves the subjects of reasonable
    suspicion as part of a
bona fide
inquiry.

[56]

The entrapment doctrine must be sensitive to the particular context in
    which crime occurs:
Mack
, at p. 964. A rigid rule
    that there can be no
bona fide
inquiry unless the
    police target a specific geographic location is inconsistent with the
    principles underlying the doctrine. The mischief the entrapment doctrine seeks
    to prevent is the danger that police conduct will amount to random
    virtue-testing and attract innocent and otherwise law-abiding individuals to
    commit a crime that they would not have otherwise committed:
Mack
, at p. 957. Entrapment seeks to prevent arbitrary and abusive police
    tactics, not the legitimate investigation of a tip concerning suspected drug
    trafficking activity.

[57]

Todays drug dealers conduct their business in
    both physical and virtual spaces. Limiting
bona fide

police inquiries to a specific physical
    location would unduly restrict their ability to combat dial-a-dope schemes in a
    manner inconsistent with the entrapment doctrine. As the British Columbia Court
    of Appeal observed in
Swan
, at para. 41:

Where the facts of this case differ significantly
    from
Barnes
, however, is in the nature of the
    technology employed by those in the dial-a-dope business, where the use of cell
    phones makes it difficult, if not impossible, to impose a meaningful
    territorial restriction on the breadth of the investigation. An analysis which
    would require the police to operate within a narrow geographical range
    analogous to the six block range in
Barnes
would
    unduly hinder them in responding to a technology which is inherently mobile. As
    stated by Chief Justice Lamer at para. 16 of
Mack
:

If the struggle against crime is to be won,
    the ingenuity of criminals must be matched by that of the police; as crimes
    become more sophisticated so too must the methods employed to detect their
    commission.

[58]

At the same time, however, the police should
    not be given
carte blanche
to investigate dial-a-dope schemes under the guise of a
bona
    fide
inquiry. As in
Barnes
, meaningful restrictions must be crafted to
    ensure that police conduct in these investigations does not impermissibly cross
    the boundary into random virtue-testing. In my view, where the police
    reasonably suspect that a phone line is being used as part of a dial-a-dope
    scheme, they may, as part of a
bona fide
inquiry, provide opportunities to people associated
    with that phone line to sell drugs, even if these people are not themselves
    under a reasonable suspicion. To constitute a
bona fide
inquiry, the investigation must be motivated
    by the genuine purpose of
investigating
    and repressing criminal activity and directed at a phone line reasonably
suspected to be used in a dial-a-dope scheme.

[59]

This
    approach is consistent with
Barnes
, where Lamer C.J. reasoned that the
    police were engaged in a
bona fide
inquiry on the basis of two
    factors: (1) the police conduct was motivated by the genuine purpose of
    investigating and repressing criminal activity; and (2) the police directed
    their investigation at a specific area where they reasonably suspected that drug-related
    crimes were occurring: see pp. 460-62. Since dial-a-dope schemes do not have
    fixed locations, it would be impracticable to require the police direct their
    investigation at a specific area. Rather, if the police reasonably suspect that
    a phone line is being used in a dial-a-dope scheme and are acting for the
    purpose of investigating and repressing crime, they should be able to provide
    an opportunity to a person associated with that phone line as part of a
bona
    fide
inquiry
.

[60]

The decision of the British Columbia Court of
    Appeal in
Swan
helps to
    illustrate the limits of a
bona fide
inquiry. In
Swan
, the police cold-called a list of telephone numbers
    suspected of being used in dial-a-dope schemes. The officer coordinating the
    investigation had emailed the entire police department asking members to share
    the names, phone numbers, and best tips they had for dial-a-dope schemes. The
    officer received 150-250 telephone numbers in various forms, ranging from
    napkins or torn-up pieces of paper with phone numbers on them to more extensive
    tips, and compiled them into a list. For almost all of the numbers called, there
    was no name or other information provided in association with the number. The
    accused, Mr. Swan, received one of the calls from an undercover officer who
    asked him if he was working. When he responded in the affirmative, she told
    him she needed 40 up ($40 worth of cocaine) and arranged to meet with him to
    complete the sale.

[61]

In finding that Mr. Swan had been entrapped,
    the court reasoned that the police had overstepped the bounds of a
bona
    fide
police investigation, as that
    expression is used in
Barnes
,

by proceeding armed only with mere suspicion and the hope that their
    unknown targets will provide the something more which was a necessary precursor
    to the invitation to traffic in drugs (para. 43). Prowse J.A. explained that
    it was not the geographic breadth of the investigation that casted doubt on the
bona fides
of the
    investigation, but rather the methodology employed by the police: see para. 42.
    More specifically, the police had proceeded with their investigation with the
    bare minimum of information regarding the telephone numbers compiled in the
    hope that the recipient of the call would provide something that raised a reasonable
    suspicion before the request for drugs was made: see para. 36.

[62]

In
Le
, in contrast, the British Columbia Court of Appeal upheld the
    conviction of an accused who was engaged in a dial-a-dope scheme. In that case,
    the police received a Crime Stoppers tip of a phone number being used in a
    dial-a-dope scheme monitored by an Asian male. There was evidence that police
    had performed certain checks with respect to the number, but there were no
    details regarding the nature of these checks. An undercover officer called the
    number and a male with a thick Asian accent responded. There was some dispute
    whether the officer asked Can you hook me up with an eight ball? or waited to
    request the eight ball until after the male had responded positively to simply
    Can you hook me up?. The court, however, held that there was no entrapment
    even if the officer immediately requested an eight ball.

[63]

One
    of the reasons the court said there was no entrapment in
Le
was
    because the police were engaged in a
bona fide
investigation. Distinguishing
Swan
in this regard Bennett J.A. explained that, [t]he call [in
Le
]
    was not part of hundreds of random calls, like
Swan
, but fell within a
bona fide
investigation or inquiry, having regard to the difficulty of
    investigating dial-a-dope offences and not confining dial-a-dope to a known
    location because of the mobile nature of the crime (para. 96).

[64]

I
    note that the Alberta Court of Appeal briefly considered, without deciding,
    whether a phone number connected to drug activity is analogous to a geographic
    location as in
Barnes
. In
R. v. Gladue
, 2012 ABCA 143, 524
    A.R. 237, leave to appeal refused: [2012] S.C.C.A. No. 305, the police called
    the accused based on a tip from a first time informant with a criminal record.
    The tip included a phone number being used to sell crack cocaine in a
    dial-a-dope scheme. Nothing was done to verify the tip. The officer called,
    asked the accused if he was working or rolling, and said he wanted to buy
    four for a hundred. The court upheld the trial judges conclusion that the
    police did not have reasonable suspicion that the accused was engaged in
    criminal activity before providing him with an opportunity to commit a crime.
    The court also rejected the Crowns alternative argument that the police were
    engaged in a
bona fide
inquiry. With respect to the Crowns submission
    that a unique digital location is analogous to the geographic location in
Barnes
,
    the court observed at paragraph 12:

The Crown argues, for the first time on appeal, that, in
    calling the dial-a-doper number, the police were engaged in a
bona fide
investigation
    of a unique digital location similar in concept to the geographic location
    considered in
Barnes
. In
Barnes
at 461, the Supreme Court
    said the police may present the opportunity to commit a particular crime to
    persons who are associated with a location where it is reasonably suspected
    that criminal activity is taking place. Assuming, without deciding, that a
    phone can be equated to a specific physical location, the requirement for a
    reasonable suspicion must still be met. We have concluded that the reasonable
    suspicion requirement is not met on the facts of this case.

[65]

Gladue
therefore left open whether a telephone line associated with a dial-a-dope
    scheme is similar to a location where it is reasonably suspected that
    criminal activity is taking place, as the concept of location is understood
    in
Barnes
. It also confirmed that the requirement of a reasonable
    suspicion must nevertheless be met for the police to be engaged in a
bona
    fide
inquiry: see also
Barnes
, at p. 463; Bruce A. MacFarlane,
    Robert J. Frater & Croft Michaelson,
Drug Offences in Canada
, 4th
    ed. (Toronto: Thomson Reuters, 2015), at s. 26:80.40. Importantly, however, the
    reasonable suspicion analysis for
bona fide
inquiries shifts away from
    a particular individual. In
Barnes
, it was directed at a location
    where it [was] reasonably suspected that criminal activity [was] taking place
    (p. 461). In a dial-a-dope case, where there is no set location, it should be
    directed at the phone line.

[66]

The
    concurrence suggests that it is incongruous for the police to reasonably
    suspect that a particular phone line is being used for a dial-a-dope scheme,
    but not reasonably suspect that the person who answers that phone to be engaged
    in drug trafficking. I disagree. Reasonable suspicion may be directed at a
    particular individual or, as in
Barnes
and these cases, a particular
    location or particular phone line. In
Barnes
, for instance, Lamer C.J.
    observed that the factors that drew the officers attention to the particular
    accused were not sufficient to give rise to reasonable suspicion that he
    specifically was engaged in criminal activity (p. 460). Rather, it was the fact
    that the accused was in a particular area where it was reasonably suspected
    that drug activity was occurring that allowed the police, as part of a
bona
    fide
inquiry, to present him with the opportunity to sell drugs (pp.
    461-62). In my view, in much the same way, when the police have reasonable
    suspicion that a phone line is being using in a dial-a-dope scheme, they should
    be allowed to provide opportunities to a person associated with that phone
    line, even if they do not have reasonable suspicion that the person is himself
    or herself engaged in drug-related activity.

[67]

It
    follows that, because reasonable suspicion may be directed at a particular
    individual, a particular location or a particular phone line, the relevant
    considerations will vary depending on the context. This means that certain
    facts may support a finding that the police had reasonable suspicion that a
    particular phone line is being
used in a
    dial-a-dope scheme, but not that the particular individual who is using that
    phone line is engaged in criminal activity, or vice-versa. While there may be
    overlap, different considerations may take on different weight in the analysis.
    For example, the fact that a phone line has been linked through a tip to the
    drug trade may take on greater importance in determining whether the police had
    reasonable suspicion the line was being used for criminal activity than when
    assessing whether the police had reasonable suspicion that a particular person
    using that line was already selling drugs. Reasonable suspicion must be assessed
    in the context of the particular case.

[68]

To summarize, to make out entrapment under the first category of the
    test articulated in
Mack
, the accused must
    establish: (i) that the police provided an opportunity to commit an offence,
    and (ii) that the police did so
without acting either on a reasonable
    suspicion that the accused was already engaged in criminal activity or pursuant
    to a
bona fide
inquiry. A
bona fide
inquiry, however, is not
    necessarily limited to a particular geographic location. In the context of a
    dial-a-dope scheme, the police will be engaged in a
bona fide
inquiry
    if  they are acting for
the purpose of
investigating and
    repressing criminal activity and their investigation is directed at a person or
    persons associated with a phone line that is reasonably suspected to be used in
    the scheme.

(v)

Application of principles

[69]

Applying that test to the facts of these appeals, I
    conclude that the police were engaged in
bona fide
inquiries when they provided Mr. Williams and Mr.
    Ahmad with opportunities to commit an offence. Mr. Williams and Mr. Ahmad have
    not met their burden of establishing entrapment on a balance of probabilities.
    Neither case is one of those clearest of cases warranting a stay based on
    entrapment:
Mack
, at p. 977.

[70]

First, there is no dispute in either case that the
    police were acting for the purpose of investigating and repressing criminal
    activity. In both cases, the police received tips of suspected drug activity
    and acted on those tips. Mr. Williams and Mr. Ahmad were not approached for reasons
    unrelated to the investigation and repression of crime.

[71]

Second, the police investigations were directed at
    persons associated with a phone line reasonably
suspected to be used in dial-a-dope schemes.

[72]

In Mr. Williams case, the police received a tip from
    a confidential source that a person named Jay was selling drugs in a
    particular area of Toronto and were given the phone number he was using.
    Although it is unclear whether the source or P.C. Fitkin who received the tip
    made the link between Jay and Mr. Williams, P.C. Fitkin passed on the
    information to D.C. Hewson of the TPS Drug Squad together with a POI package
    identifying Mr. Williams. When D.C. Canepa called the phone number, the person
    who responded confirmed that he was Jay. It was only at this point that D.C.
    Canepa asked to buy 80, common parlance in the drug trade for $80 of cocaine.

[73]

In my view, the police had developed reasonable
    suspicion by this time that the phone line was being used in a dial-a-dope
    scheme. The call was directed to a particular phone number, supplied by a
    source who indicated that it was being used by a person named Jay to sell
    drugs. The person who answered the phone confirmed he was Jay, corroborating
    the sources information and further focusing the police investigation. While
    the police did not have reasonable suspicion that Mr. Williams specifically was
    engaged in criminal activity, the objectively discernible facts support the
    polices reasonable suspicion that the telephone line was being used to sell drugs.

[74]

This was not a random call, but rather a focused
    investigation. The source provided information both about the phone line being
    used in the dial-a-dope scheme and the name of the person using that phone line.
    While no inquiries appear to have been made about the sources reliability, the
    sources information about Jay was confirmed when the person who answered the
    phone replied positively to the name.

[75]

In my view, the police are not required to investigate
    the reliability of a source before embarking on a phone conversation. While
    information about a sources reliability may in some circumstances provide
    reasonable suspicion that a phone line is being used in a dial-a-dope scheme,
    reasonable suspicion may also be developed in the course of the phone call,
    such as when the person who answers the call confirms the sources information.

[76]

In Mr. Williams case, the police reasonably suspected
    that the phone line was being used in a dial-a-dope scheme when they presented
    the opportunity to commit a crime. As a result, they were engaged in a
bona
    fide
inquiry at the time they gave Mr.
    Williams the opportunity to sell drugs.

[77]

Similarly, the police were engaged in a
bona
    fide
inquiry when they provided Mr. Ahmad
    with the opportunity to sell drugs. The police received a tip that a man named
    Romeo was selling cocaine. D.C. Limsiaco called Romeos phone number and
    asked if he was speaking to him. Although the person did not confirm or deny he
    was Romeo, he made no inquiries about the name. D.C. Limsiaco asked you can
    help me out?, a common phrase used to request drugs. The person responded
    what do you need?, another common phrase in the drug trade to ask what kind
    of drugs a buyer wants. D.C. Limsiaco then requested two soft, meaning two
    ounces of powder cocaine.

[78]

In my view, the police again had reasonable suspicion
    that the phone line was being used in a dial-a-dope scheme by the time they
    provided Mr. Ahmad with an opportunity to sell drugs. While the objectively
    discernible facts do not rise to the level of reasonable suspicion that Mr.
    Ahmad specifically was already engaged in criminal activity, they do support
    reasonable suspicion that the phone line he was using was being used to sell
    drugs. More specifically, police were acting on a tip directed at a particular
    phone line. While the person who answered the call did not confirm he was
    Romeo, the name provided in the tip, he did not question the name. Moreover, he
    engaged in a conversation with an apparent stranger, using coded language
    familiar to the drug trade. Based on the totality of the circumstances, I find
    that the police had reasonable suspicion that the phone line was being used in
    a dial-a-dope scheme and were therefore engaged in a
bona fide
inquiry.

[79]

As noted above, neither Mr. Williams nor Mr. Ahmad
    argued that the police went beyond providing an opportunity to commit a crime
    and induced them to commit an offence. As a result, Mr. Williams and Mr. Ahmad
    have failed to establish on a balance of probabilities that they were
    entrapped. The police in both cases were acting pursuant to a
bona
    fide
inquiry. In each case, the police
    conduct was directed at a person associated with a phone line reasonably
suspected to be used in a dial-a-dope scheme
and they acted for
the purpose of
investigating
    and repressing criminal activity
.

(b)

Mr. Williams Cross-Appeal

[80]

Mr. Williams cross-appeals against his
    firearm, ammunition, and breach of recognizance convictions. He argues that
    these charges should have also been stayed because they were
inextricably linked to the entrapment or,
    alternatively, that the evidence of those offences should be excluded under s.
    24(2) of
Charter
. His counsel
    conceded in oral argument, however, that if the police conduct did not
    constitute entrapment, these issues need not be addressed. Therefore, I will
    not consider Mr. Williams cross-appeal.

(c)

Credibility

[81]

Mr. Ahmad submits that the trial judge
    committed reversible error in her credibility analysis by using Mr. Ahmads
    silence against him and by making inconsistent findings of fact. In her reasons
    for judgment convicting him, the trial judge:

·

Outlined the principles
    from
R. v. Lifchus
,
    [1997] 3 S.C.R. 320, and
R. v. W. (D.)
, [1991] 1 S.C.R. 742, on the burden of proof and the
    assessment of evidence (paras. 36-39);

·

Found Mr. Ahmads evidence
    was not believable. Specifically, the trial judge noted that Mr. Ahmad did
    not feel compelled to give Mikeys name to the police, the person he said was
    guilty of the offences. He also said that he initially lied to the police,
    saying he did not know him. His testimony was self-serving, remembering that
    Mikey had a backpack, but not what he was wearing, nor other details about him.
    Moreover, the defence theory left open how the police got the backpack (paras.
    40-48); and

·

Found that the officers
    evidence was credible. Mr. Ahmads counsel pointed to minor inconsistencies in
    their testimony, but the discrepancies identified would be reasonably expected
    given the nature of human perception. In the trial judges view, the officers
    were forthright and presented their evidence in a cogent manner, even under
    vigorous cross-examination (paras. 49-51, 57).

[82]

On appeal, Mr. Ahmad alleges that the trial
    judge rejected his evidence primarily because he exercised his right to silence
    by withholding from the police the guilty partys name (i.e. Mikey). She also
    inferred that his silence was indicative of a guilty mind. Moreover, Mr. Ahmad
    submits that the trial judge made inconsistent findings of fact by using his
    evidence regarding utterances he made to the police before and after his arrest
    to undermine his credibility, despite rejecting his evidence in its entirety
    and despite there being no corroborating evidence on those utterances from the
    Crown witnesses.

[83]

I would not give effect to this ground of
    appeal.

[84]

I accept the Crowns submission that the trial
    judges reasons, read fairly, do not indicate that she used Mr. Ahmads silence
    to reject his credibility or infer guilt. Rather, she thoroughly reviewed
    various aspects of his evidence and found that his explanation of events lacked
    common sense. In contrast, she accepted the officers evidence, which
    contradicted Mr. Ahmads evidence and was not challenged in any meaningful way.

[85]

The appellant partially relies on this courts
    decision in
R. v. Palmer
,
    2008 ONCA 797, 81 W.C.B. (2d) 140, in support of this ground. In
Palmer
, t
his court reasoned
    that it was open to the trial judge to reject the appellants explanation
    given at trial [about why she did not advance an explanation to police] and to
    use that finding in assessing the appellants overall credibility. However,
    the trial judge was not entitled to go further as he did in that case and use
    the appellants silence as a basis for finding her incredible: see para. 7. See
    also
R. v. Duong
, 2014 ONCA 375, 311 C.C.C. (3d)
    139, at para. 54, leave to appeal refused: [2014] S.C.C.A. No. 268. I am of the
    view that reading her reasons as a whole, the trial judge in this case
    undertook only the former, permissible line of reasoning.

[86]

Moreover, the trial judge was entitled to rely
    on the internal inconsistencies in Mr. Ahmads testimony to reject his
    evidence. She held that in the context of his testimony, his claim that he lied
    to the police made no sense. On a fair reading of her reasons, that holding did
    not reflect a factual finding that he did in fact lie to police as he said he
    did.

(d)

Sentence Appeal

[87]

Mr. Ahmad also argues that his sentence of imprisonment for two years
    less one day for the possession for the purpose of trafficking charge
    concurrent with six months imprisonment for each of the two possession of
    proceeds of crime charges was manifestly unfit.

[88]

Mr. Ahmad submits that the trial judge erred
    in principle by double-counting his youth record in considering both the record
    and the fact that his time spent in custody as a result of his youth offences
    had not deterred him from engaging in subsequent serious criminal activity. She
    also erred by erroneously considering his failure to provide information for
    the pre-sentence report as an aggravating factor, even though he was not
    obligated to do so. Moreover, she placed too little emphasis on rehabilitation,
    including the fact that he had complied with his bail conditions for several
    years and obtained a university degree. Finally, she did not consider whether
    his bail conditions, including spending five months under house arrest and a
    further seven on a curfew, should have mitigated the sentence. As a result, Mr.
    Ahmad submits that the trial judge imposed a sentence that is harsh and
    excessive and that a fit sentence is one of 18 months, to be served in the
    community.

[89]

I would not interfere with the sentence
    imposed by the trial judge
. Although the trial judge failed to consider
    Mr. Ahmads time under house arrest and erroneously considered his failure to
    provide information for his pre-sentence report, in my view, the sentence
    imposed is nonetheless fit.

[90]

In
R. v. Downes
(2006), 79 O.R. (3d) 321 (C.A.), at para. 33, Rosenberg
    J.A. said the following in relation to the consideration of stringent bail
    conditions at sentencing:

Accordingly, I conclude that time spent under
    stringent bail conditions, especially under house arrest, must be taken into
    account as a relevant mitigating circumstance. However, like any potential
    mitigating circumstance, there will be variations in its potential impact on
    the sentence and the circumstances may dictate that little or no credit should
    be given for pre-sentence house arrest [I]t is incumbent on the sentencing
    judge to explain why he or she has decided not to take pre-sentence house
    arrest into account. The failure to do so will constitute an error in
    principle

[91]

The
    trial judge did not mention Mr. Ahmads pre-sentence house arrest, let alone
    explain why she did not take it into account. This was an error.

[92]

It
    was also an error for the trial judge to cite as an aggravating factor the fact
    that Mr. Ahmad did not provide information about his family and his background
    to the author of the PSR, information that would have been useful to the court
    (para. 22). As the appellant argued, there was no obligation on Mr. Ahmad to do
    so. While a sentencing judge may take into account information provided in the pre-sentence
    report when evaluating aggravating and mitigating factors, and an offender may
    very well not be helping himself by failing to provide information, that
    failure on its own is not an aggravating factor.

[93]

I
    am not convinced that the trial judge improperly double-counted Mr. Ahmads
    youth record simply because she additionally noted that that record appears not
    to have deterred him from criminal activity. Further, I do not accept that the
    trial judge failed to place enough emphasis on rehabilitation,
including the facts of Mr. Ahmads bail compliance and
    that he obtained a university degree.

She
    explicitly discussed both of these facts in relation to rehabilitation.

[94]

Despite
    the erroneous considerations outlined above, I
agree with the
    Crown that the sentence was at the lower end of the established range. This is particularly
    so given that the evidence established that Mr. Ahmad
was
a
    busy commercial trafficker, deeply involved in the drug business. At the time
    of his arrest he had on his person a large amount of cocaine and cash, and two
    cell phones. Mr. Ahmad also had a previous conviction for the unauthorized
    possession of a firearm. In my view, the sentence was entirely fit in the
    circumstances.

Disposition

[95]

For the foregoing reasons, I would:

(i)

grant the Crowns appeal in Mr. Williams case and set
    aside the stay of the drug transaction charges. Given that Mr. Williams has
    otherwise acknowledged his guilt, I would enter convictions on those charges
    and remit the case to the trial court for sentencing on those charges;

(ii)

dismiss Mr. Williams cross-appeal;

(iii)

dismiss Mr. Ahmads conviction appeal; and

(iv)

grant Mr. Ahmad leave to appeal his sentence, but dismiss
    his sentence appeal.

C. W.
    Hourigan J.A.

I
    agree. David Brown J.A.

Himel J.
(ad hoc)
(concurring):

Introduction

[96]

I
    have read the reasons of the majority and agree that the Crowns appeal in
    Landon Williams case should be allowed, Mr. Williams cross-appeal should be
    dismissed and Javid Ahmads appeal should be dismissed on the basis that the
    doctrine of entrapment does not apply to either of them.  However, I arrive at
    this result for different reasons than those of my colleagues.  In my view, the
    police in both cases acted on a reasonable suspicion that Mr. Williams and Mr.
    Ahmad were already engaged in criminal activity when they presented them with
    an opportunity to commit an offence.  Accordingly, there is no need to consider
    whether the police were acting pursuant to a
bona fide
inquiry.

Factual Background

[97]

I
    adopt the majoritys statement of the facts.

Analysis

(a)     Overview of the reasonable suspicion requirement

[98]

In
    the leading decision on entrapment,
R. v. Mack
, [1988] 2 S.C.R. 903,
    Lamer J. wrote the following at pp. 964-65:

[T]here is entrapment when, (a) the authorities provide a
    person with an opportunity to commit an offence without acting on a reasonable
    suspicion that this person is already engaged in criminal activity or pursuant
    to a
bona fide
inquiry; (b) although having such a reasonable
    suspicion or acting in the course of a
bona fide
inquiry, they go
    beyond providing an opportunity and induce the commission of an offence.

See also
R. v. Barnes
, [1991] 1 S.C.R. 449,
    at p. 460.

[99]

The
    rationale for this test is twofold. First, if there is no reasonable suspicion
    or
bona fide
inquiry, there is a risk that police will attract people
    who otherwise would not be involved in criminal activity to commit an offence,
    and, second, it is not a proper use of the polices power to randomly test the
    virtue of people:
Barnes
, at p. 460; and
Mack
, at p. 965.

[100]

Entrapment is to
    be recognized in only the clearest of cases:
Mack
, at p. 976. The
    doctrine of entrapment will not apply if the police acted on a reasonable
    suspicion that the accused was already engaged in criminal activity when they
    presented the accused with an opportunity to commit an offence:
Barnes
,
    at p. 460; and
Mack
, at p. 964.  However, the presence of a reasonable
    suspicion or a
bona fide
inquiry will not justify police techniques
    that go beyond providing an opportunity:
Barnes
, at p. 460; and
Mack
,
    at p. 965. Once an accused has demonstrated that the police used tactics that
    went beyond acceptable limits, judicial condonation of the prosecution would
    by definition offend the community:
Mack
, at p. 976.

[101]

Reasonable
    suspicion requires something more than a mere suspicion and something less
    than a belief based upon reasonable and probable grounds:
R. v.

Chehil
,
    2013 SCC 49, [2013] 3 S.C.R. 220, at para. 26; and
R. v. Kang
‑
Brown
,
    2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. It addresses the
possibility
of uncovering criminality, and not a
probability
of doing so:
Chehil
,
    at para. 32;
Kang-Brown
, at para. 75; and
R. v. Ayangma
, 2016
    PECA 6, 375 Nfld. & P.E.I.R. 73, at para. 37, leave to appeal refused,
    [2016] S.C.C.A. No. 271. Reasonable suspicion involves a reasonable belief
    that an individual
might
be connected to a particular offence, as
    opposed to a reasonable belief that an individual
is
connected to the
    offence:
R. v. MacKenzie
, 2013 SCC 50, [2013] 3 S.C.R. 250, at para.
    74. Even though a hunch or feeling will not give rise to a reasonable
    suspicion, the standard is necessarily  low and not unduly onerous:
Barnes
,
    at p. 460;
R. v. Cahill
(1993), 12 B.C.A.C. 247 (C.A.), at para. 35;
    and
Mack
, at p. 958.

[102]

Reasonable
    suspicion involves a minimal level of belief which does not rule out the
    possibility of innocent conduct or other reasonable possibilities:
R. v.

Williams
, 2010 ONSC 1698, at para. 44, citing
United States v.
    Gould
, 364 F. (3d) 578 (5th Cir. 2004), at p. 593. It can be established
    with information that is different in quantity or content than that required to
    establish probable cause and it can arise from information that is less
    reliable than that required to show probable cause:
Kang-Brown
, at
    para. 75, citing
Alabama v. White
, 496 U.S. 325 (1990), at p. 330.
    Although reasonable suspicion must be based on objectively discernible facts,
    [w]hat will give rise to a reasonable suspicion  will vary from case to
    case:
Chehil
, at para. 3; and
Cahill
, at para. 34.

[103]

The Supreme
    Court of Canadas description of reasonable suspicion in
MacKenzie
, at
    para. 72 is instructive:

Exculpatory, common, neutral, or equivocal information should
    not be discarded when assessing a constellation of factors.  However, the test
    for reasonable suspicion will not be stymied when the factors which give rise
    to it are supportive of an innocent explanation.  We are looking here at
    possibilities, not probabilities.  Are the facts objectively indicative of the
possibility
of criminal behaviour in light of the totality of the circumstances?  If so,
    the objective component of the test will have been met.  If not, the inquiry is
    at an end.

(b)     Application to the cases at bar

[104]

It is my view
    that early on in their telephone conversations, the undercover officers
    acquired a reasonable suspicion that Mr. Williams and Mr. Ahmad were already
    engaged in criminal activity.

[105]

In Mr. Williams
    case, (i) the police were acting on a tip that they had received from a
    confidential source, which indicated that a person by the name of Jay was
    using a certain phone number and selling cocaine in a particular area of
    Toronto, and (ii) the reliability of this tip was confirmed when the officer
    called the phone number and the person who answered immediately acknowledged
    that he was Jay.

[106]

In Mr. Ahmads
    case, (i) the police were again acting on a tip, which revealed that a person
    by the name of Romeo was selling powder cocaine and using the phone number
    647-207-9522, (ii) although the person who answered the call did not confirm he
    was Romeo, he did not question the name, and instead continued the dialogue,
    and (iii) the person who answered the call engaged in a conversation with an
    apparent stranger, using coded language familiar to the drug trade. When the
    officer stated Matt said I can give you a call  said you can help me out?
    the person who answered did not react with surprise or indignation or say What
    do you mean? or What are you talking about? or Youve got the wrong
    number. Rather, his response was consistent with what a drug dealer would say:
    What do you need? This confirmed the reliability of the tip. See
R. v.
    Ralph
, 2011 ONSC 4125, at para. 34, affd 2014 ONCA 3, 313 O.A.C. 384,
    leave to appeal refused, [2014] S.C.C.A. No. 262. He also responded as if he
    knew who the Matt used by the undercover officer in his backstory was, which
    confirmed the reliability of the tip further.

[107]

Moreover, Mr.
    Ahmads response What do you need? to D.C. Limsiacos statement said you can
    help me out? is similar to Mr. Olazos positive response to the officers
    question can you meet me or where are you in
R. v. Olazo
, 2012
    BCCA 59, 316 B.C.A.C. 176, at paras. 8 and 26.  In that case, the British
    Columbia Court of Appeal concluded that Mr. Olazos response demonstrated a
    familiarity with drug terminology, helped to confirm the tip and, in doing so,
    established a reasonable suspicion:
Olazo
, at paras. 26, 30.

[108]

While my
    colleagues conclude that the police did not have a reasonable suspicion that
    Mr. Williams and Mr. Ahmad were already engaged in criminal activity, they do
    find that the police had a reasonable suspicion that the
phone lines
were being used for criminal activity. With respect, I do not agree with this
    approach.

[109]

First, to
    suggest that an undercover officer can reasonably suspect that a particular
    phone line is being used for a dial-a-dope scheme, but not reasonably suspect
    that the person who answers that phone is engaged in such a scheme is to ignore
    a fundamental reality: phones are increasingly personal. Although some people
    might pick up their friend or relatives phone when it rings, an undercover
    officer can still reasonably suspect that the person who answers is the user or
    owner of that phone. After all, in assessing reasonable suspicion [w]e are
    looking  at possibilities, not probabilities:
MacKenzie
, at para.
    72. Accordingly, in the dial-a-dope context, there is little real difference
    between information that the police obtain about the phone line and information
    that they obtain about the person who answers it. Quite often, information
    about the one is information about the other.

[110]

Second, my
    colleagues consider certain facts in concluding that the police reasonably
    suspected that the phone lines were being used for criminal activity, but it is
    unclear why these same facts could not have also supported a finding that there
    was a reasonable suspicion with respect to Mr. Williams and Mr. Ahmads
    involvement in criminal activity.

[111]

For example, the
    majority relies on the fact that no information was conveyed about the reliability
    of the source and the information the source provided in finding that there was
    no reasonable suspicion that Mr. Williams was involved in a dial-a-dope scheme.
    However, in concluding that there was a reasonable suspicion that the phone
    line was being used for such a purpose, the majority explains at para. 75 that
    the police are not required to investigate the reliability of a source before
    embarking on a phone conversation and that reasonable suspicion may also be
    developed in the course of the phone call, such as when the person who answers
    the call confirms the sources information. The fact that the sources
    information about Jay was confirmed in the course of the phone call was used
    to find reasonable suspicion with respect to the phone line, but was not
    considered when assessing whether there was a reasonable suspicion with respect
    to Mr. Williams, even though it would have been equally relevant to that
    analysis.

[112]

A similar
    concern arises in the analysis of Mr. Ahmads case. The trial judge found that
    a reasonable suspicion that Mr. Ahmad was already engaged in criminal activity
    was formed when he asked What do you need? in response to D.C. Limsiacos
    question Can you help me out? Although my colleagues rejected this
    conclusion, they later refer to the very same language at paras. 77 to 78 in
    finding that the undercover officer reasonably suspected that the phone line
    was being used in a dial-a-dope scheme:

D.C. Limsiaco asked you can help me out?, a common phrase
    used to request drugs. The person responded what do you need?, another common
    phrase in the drug trade to ask what kind of drugs a buyer wants.

While the person who answered the call did not confirm he was
    Romeo, the name provided in the tip, he did not question the name. Moreover,
he engaged in a conversation with an apparent stranger, using
    coded language familiar to the drug trade.
Based on the totality of the
    circumstances, I find that the police had reasonable suspicion that the phone
    line was being used in a dial-a-dope scheme and were therefore engaged in a
bona
    fide
inquiry. [Emphasis added.]

These facts equally apply to a finding that there was
    a reasonable suspicion with respect to Mr. Ahmads involvement in crime.

[113]

It is also my
    view that the information obtained by the undercover officers later on in their
    conversations with Mr. Williams and Mr. Ahmad further solidified their
    reasonable suspicions. In particular, Mr. Williams and Mr. Ahmads responses to
    the officers statements that they needed 80 and two soft suggested that
    Mr. Williams and Mr. Ahmad were already involved in the drug trade, and neither
    of these statements by the officers constituted the giving of an opportunity to
    commit an offence.

[114]

In arriving at
    this conclusion that the officers statements did not amount to offers to
    purchase drugs, I follow the reasoning in two decisions of this court:
R.
    v.

Imoro
, 2010 ONCA 122, 264 O.A.C. 362, affd 2010 SCC 50,
    [2010] 3 S.C.R. 62 and
R. v. Ralph
, 2014 ONCA 3, 313 O.A.C. 384, leave
    to appeal refused, [2014] S.C.C.A. No. 262. In
Imoro
, at para. 8,
    Laskin J.A. considered the doctrine of entrapment outlined in
Mack,
which reflects judicial disapproval of unacceptable police or prosecutorial
    conduct in investigating crimes, and found at para. 15 that the trial judge
    had erred in finding that the officers question Can you hook me up? provided
    the accused with an opportunity to sell drugs. He stated at para. 15 that
    [t]his mischaracterization stems from a failure to properly distinguish
    between legitimately investigating a tip and giving an opportunity to commit a
    crime, citing
R. v. Townsend
, [1997] O.J. 6516 (Gen. Div.). The Court
    of Appeal held at para. 16 that the question Can you hook me up? was simply
    a step in the polices investigation of the anonymous tip and did not amount
    to giving Mr. Imoro an opportunity to traffic in drugs. By asking Can you
    hook me up? all the officer was really asking Mr. Imoro was whether he was a
    drug dealer:
Imoro
, at para. 16. Laskin J.A. concluded at para. 17
    that there was no evidence to support the finding of entrapment.

[115]

In
Ralph
,
    at para. 32, the Court of Appeal for Ontario agreed with the trial judge that
    entrapment was not made out in that case where police received information
    about a drug dealer who could be reached at a particular number. The undercover
    officer called the number and left a message for the person to call back:
Ralph
,
    at para. 29. Forty-one minutes later a male called back and they had a
    conversation which resulted in them meeting later that night and the officer
    purchasing 1.6 grams of cocaine:
Ralph
, at paras. 29, 30. Rosenberg
    J.A. held at para. 32 that the officers statement I was at Jane and Finch and
    a kid said that if I want anything to call this number and this guy would link
    me up  I need product is similar to the Can you hook me up? question in
Imoro
.
    He wrote at para. 32:

As found by the trial judge, it was a legitimate investigative
    step.  When the appellant responded as he did, this response together with the
    anonymous tip was, as found by the trial judge, sufficient to provide the
    officer with reasonable suspicion and justify the further statements from the
    officer.  This was not a case of random virtue testing and entrapment was not
    made out.

[116]

It is clear from
Imoro
and
Ralph
that the court must distinguish between
    legitimately investigating a tip, such as by using veiled statements to ask
    whether the accused is a drug dealer, and giving an opportunity to commit a
    crime. However, these cases do not stand for the proposition that the police
    cross the line from legitimately investigating to giving an opportunity
    when they make a specific request for drugs, such as I need 80 or I need two
    soft.

[117]

In the British
    Columbia Court of Appeals decision in
R. v. Le
, 2016 BCCA 155, 385
    B.C.A.C. 267, at para. 65, leave to appeal refused, [2016] S.C.C.A. No. 272,
    the court noted that much discussion in the appeal turned on whether the
    undercover officer investigating the dial-a-dope scheme had asked the appellant
    Can you hook me up? or Can you hook me up
with an eight ball
?
    (emphasis added), which is a more specific request for drugs. However, the
    Court of Appeal concluded that the specific language made no difference:
Le
,
    at para. 66. The court expressed the following concern at para. 93:

Defence counsel argued that there is a meaningful distinction
    between veiled statements asking if the other party is a drug dealer and more
    specific requests for types, quantities, or values of drugs. It was argued that
    the former statement is an investigatory step while the latter is an offer to
    commit an offence. Parsing the language of undercover drugs calls in
    dial-a-dope investigations in this way takes an unnecessarily narrow approach.
    It ignores the surrounding circumstances, but more importantly, it strays far
    from the core principle underlying
Mack.

[118]

The majority in
    the cases at bar agrees with this concern at para. 39 of their reasons where
    they state that an overly technical approach to the entrapment doctrine risks
    detaching the doctrine from its purpose and unduly restricting police conduct.
    In
MacKenzie
, at para. 73, the Supreme Court took a similar position:

Assessing whether a particular constellation of facts gives
    rise to a reasonable suspicion should not  indeed must not  devolve into a
    scientific or metaphysical exercise. Common sense, flexibility, and practical
    everyday experience are the bywords, and they are to be applied through the
    eyes of a reasonable person armed with the knowledge, training and experience
    of the investigating officer.

[119]

As
Le
indicates, it is inconsistent with the core principles underlying
Mack
to try to parse the language of undercover officers by distinguishing veiled
    statements asking if the other party is a drug dealer from specific requests
    for quantities of drugs. In other words, there is no meaningful distinction
    between asking someone Can you hook me up?  which is not an opportunity to
    commit a crime (see
Imoro
, at para. 16; and
Le
, at para. 92)
     and specific requests such as I need 80 or I need two soft. Accordingly,
    it is my view that an opportunity to commit an offence was not provided when
    the undercover officers in the cases at bar stated that they needed 80 and
    two soft. Neither had an opportunity been provided prior to that point.

[120]

A comparison of
    the officers statements in
Ralph
and Mr. Williams case illustrates
    the artificiality of attempting to parse the language that officers use in
    dial-a-dope investigations, as
Le
suggests. In Mr. Williams case,
    D.C. Canepa stated, Jesse from Queen and Jarvis gave me your name  your
    number. Said you could help me out. I need 80.  In
Ralph
, the
    undercover officer stated, I was at Jane and Finch and a kid said that if I
    want anything to call this number and this guy would link me up ... I need
    product, which was found to be a legitimate investigative step and not the
    giving of an opportunity. Both statements indicate that the officer in question
    was in contact with someone from an area of the city known for illicit activity,
    that this contact gave the officer the number of a person who could help [him]
    out or link [him] up, and that the officer needed drugs. The fact that the
    officer in one case stated that he needed 80 while the officer in the other
    indicated that he needed product is not a meaningful distinction given that
    both of these terms are references to drugs.

[121]

Applying
Imoro
,
Ralph
and
Le
to the cases at bar, my view is that the information
    contained within Mr. Williams and Mr. Ahmads responses to the officers
    requests for 80 and two soft, respectively, further solidified the
    officers reasonable suspicions. Mr. Williams responded Okay. You have to come
    to me to D.C. Canepas statement that he needed 80, which suggests that Mr.
    Williams was already involved in the drug trade. The explanation provided by
    D.C. Canepa as to how he got Mr. Williams phone number  that Jesse from Queen
    and Jarvis gave him the name Jay and his number (suggesting needs that were
    illicit) and told him that Jay would help him out  was not questioned by Mr.
    Williams: see
Ralph
, 2011 ONSC 4125, at para. 34. Mr. Williams did not
    respond by saying What are you talking about? or by hanging up, as one would
    expect an innocent person to do in this situation. Rather, Mr. Williams
    responded affirmatively to D.C. Canepas statement that he needed 80, a
    veiled reference to drugs.

[122]

Similarly, Mr.
    Ahmads response to D.C. Limsiacos statement that he needed two soft
    another reference to drugs  was to tell the officer that he would get back to
    him and, 15 minutes later, to call the officer back. Again, this response
    indicated that Mr. Ahmad understood the officers use of drug terminology and
    was considering what had been discussed. This would have further supported a
    reasonable suspicion about Mr. Ahmads involvement in the drug trade.

[123]

In both of these
    cases, Mr. Williams and Mr. Ahmads own expression[s] of willingness to
    transact during the phone call[s] raised a reasonable suspicion:
Le
,
    at para. 92. In my view, the reasonable suspicion crystallized before any offer
    to commit a crime occurred.

[124]

Finally, a
    necessarily-principled approach to the doctrine of entrapment leads to the same
    conclusion that entrapment is not made out in this case.

[125]

The reasonable
    suspicion requirement under the entrapment doctrine seeks to prevent police
    conduct that will attract innocent and otherwise law-abiding individuals to
    commit a crime that they would not have otherwise committed:
Mack
, at
    pp. 957, 965; and
Le
, at para. 94. It was designed to target police
    conduct that the citizenry cannot tolerate and will only be recognized in the
    clearest of cases:
Mack
, at pp. 917, 976. Although the Supreme Court
    in
Mack
acknowledged that the power of the police to investigate
    criminal activity is not unlimited, it also sought to give the police
    considerable latitude so that they can effectively investigate crime:
Mack
,
    at pp. 917, 941; and
Imoro
, at paras. 8-9.

[126]

In determining
    whether the defence of entrapment has been made out it is essential that the
    court does not lose sight of these underlying reasons for recognizing the
    doctrine in the first place:
Mack
, at p. 965. However, some of the
    jurisprudence has done exactly that. A number of cases have narrowly focused on
    the minute language choices of the investigating officer to find entrapment
    despite the fact that the police conduct does not risk causing an innocent
    person to sell drugs. The court must never lose sight of the core question: is
    the polices conduct really offensive?  As the Supreme Court identified in
Mack
,
    at p. 942, [i]n the entrapment context, the courts sense of justice is
    offended by the spectacle of an accuseds being convicted of an offence which
    is the work of the state. Staying cases in which there is no actual offensive
    police conduct is harmful to the integrity of the administration of justice. It
    is crucial that the police be allowed to carry out their duties without undue
    scepticism or the requirement that their every move be placed under a scanning
    electron microscope:
MacKenzie
, at para. 65.

[127]

The British
    Columbia Court of Appeals comments in
Le
, at para. 95 are also apt
    here:

Objectively speaking, innocent and otherwise law-abiding
    individuals would not be manipulated or tempted to enter the dangerous and
    illicit drug trade if asked by a stranger over the phone to sell him drugs. It
    defies common sense to suggest that asking whether an individual is willing to
    sell specific types, quantities, or values of illicit drugs runs the serious
    unnecessary risk that an otherwise innocent person would then go out, procure
    the drugs, meet with and sell them to a stranger.

[128]

Neither Mr.
    Williams case nor Mr. Ahmads case is one of those clearest of cases
    warranting a stay based on entrapment: see
Mack
, at pp. 976-77. The
    police conduct in these cases did not carry the risk that innocent persons
    would commit a crime that they would have not otherwise committed. Neither was
    this conduct that the citizenry cannot tolerate. On the contrary, the police
    relied on legitimate investigative techniques that are responsive to the modern
    realities of the drug trade and its reliance on virtual spaces to evade police
    scrutiny.

Result

[129]

For these
    reasons, I would allow the Crown appeal in Mr. Williams case, dismiss his
    cross-appeal, dismiss Mr. Ahmads appeal and make the dispositions outlined by
    the majority.

Released: C.W.H. June 11, 2018

Himel J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barkhadle, 2018 ONCA 569

DATE: 20180621

DOCKET: C63837

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ismail Said Barkhadle

Appellant

Howard L. Krongold, for the appellant

Luke Schwalm, for the respondent

Heard and released orally: June 20, 2018

On appeal from the convictions entered on September 7,
    2016 by Justice Marc R. Labrosse of the Superior Court of Justice sitting
    without a jury.

REASONS FOR DECISION

[1]

Mr. Barkhadle appeals his conviction on one
    count of unlawful possession of a loaded prohibited firearm.

[2]

The background facts, briefly stated, are that
    the police, based on a complaint, raided a small apartment located on Baycrest
    Drive in the City of Ottawa.  Eight officers entered the apartment in a
    dynamic fashion.  They found nine males in the small apartment.  The lead
    officer saw the appellant move towards the back of the apartment, hunched over
    and with his right hand near his waist band.  The officer tackled the
    appellant.  As the two fell to the floor, the officer saw the appellants hands
    come out as if to break his fall.  The officer saw a gun in the appellants hands
    that came loose and clattered to the floor.  The gun came to rest about a foot
    from the appellants right hand.

[3]

The appellant gave evidence.  He said that he
    did not have a gun in his possession when he was tackled by the officer.  He
    also said that he did not put his hands out when he was falling to the ground.
    The appellant also said that he did not see a gun on the floor as he was being
    arrested.

[4]

The trial judge convicted the appellant.  In
    doing so, the trial judge instructed himself that he had to apply the test in
R.
    v. W.(D.)
,
[1991] 1 S.C.R. 742, which he set out in his reasons.
    The trial judge did not accept the appellants evidence.  He gave reasons for
    his rejection of that evidence.  He also found that the appellants evidence
    did not raise a reasonable doubt.

[5]

The trial judge went on to find that he did
    believe the evidence of the officer.  He found that the officer was consistent
    in his evidence as to the events and that he gave a detailed description as to
    how those events unfolded.  The trial judge also noted that the officers
    evidence was confirmed in some respects by the evidence of several of the other
    officers involved.

[6]

The appellant complains that the trial judge
    failed to subject the officers evidence to adequate scrutiny.  In particular,
    the appellant asserts that the trial judge failed to consider the difference
    between certainty and reliability, failed to consider the role of stress in the
    recollection, failed to consider the inherent problems with split second
    observations, and finally the further concern about the possibility of
    reconstruction.

[7]

We do not agree with the appellants
    submissions.  We do not accept that the trial judge failed to properly
    scrutinize the officers evidence.  To the contrary, the trial judge engaged in
    an entirely appropriate review of that evidence including all of the relevant
    factors regarding its reliability.

[8]

It is the role of trial judges, when acting as
    the trier of fact, to reach conclusions as to the evidence that they accept and
    the evidence that they do not accept.  Their conclusions on those issues are
    entitled to deference from appellate courts.  The appellant has failed to
    establish that there was any palpable and overriding error in the conclusion
    that the trial judge reached in this case.

Conclusion

[9]

The appeal is dismissed.

C.W. Hourigan J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boe, 2018 ONCA 531

DATE: 20180608

DOCKET: C64807

Lauwers, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devon Boe

Appellant

Devon Boe, appearing in person

Nader R. Hasan, appearing as duty counsel

Ian Bell, for the respondent

Heard and released orally: June 5, 2018

On appeal from the convictions entered on December 6,
    2017 by Justice Terrence L. J. Patterson of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals convictions for possession of marijuana, cocaine
    and MDMA for purposes of trafficking, and possession of a prohibited weapon, on
    the basis that the police did not have reasonable and probable grounds for his
    arrest.

[2]

We disagree. The police received a tip from a confidential informant
    that someone named Devon was dealing drugs from a Dodge Avenger. The tip
    provided the name and description of the person, a description of the vehicle
    including the licence number, and a cell phone number. The police corroborated
    the name, description and age of the appellant from a search of the vehicle licence
    number. The information was detailed enough to warrant further investigation.

[3]

The police conducted surveillance of the appellant on two days. They
    observed him in his vehicle interacting with others in circumstances they
    believed to be suspicious and consistent with drug trafficking.

[4]

Although police did not observe any hand-to-hand transactions, or anyone
    carrying anything away from the vehicle, the trial judge concluded from the
    pattern of conduct that the police had reasonable and probable grounds to
    arrest the appellant. The search incident to arrest led to the drugs and weapon.
    The trial judge did not err in finding on the evidence before him that the
    police had reasonable and probable grounds to arrest the appellant, and there
    is no basis upon which this court could interfere. The appeal is dismissed.

P. Lauwers J.A.

G. Pardu J.A.

B.W. Miller J.A.