



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zakos, 2022 ONCA 121

DATE: 20220211

DOCKET: C68429

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Zakos

Appellant

Thomas F. Balka,
    for the appellants

David Quayat,
    for the respondent

Heard: January 18,
    2022 by video conference

On appeal from the convictions entered
    on October 26, 2018 by Justice Sharon Lavine of the Superior Court of Justice, and
    from the dismissal of an application for a stay of proceedings on March 1, 2019.

Thorburn J.A.:

OVERVIEW

[1]

The appellant, Thomas Zakos, appeals his convictions
    for three counts of trafficking in cocaine, and possession of the proceeds of
    crime. He has served his sentence.

[2]

The appellant claims he was entrapped by the
    police and that the trial judge therefore erred in declining to stay the
    charges against him.

[3]

The issues to be addressed are:

i.

When Detective Constable Green gave the
    appellant the opportunity to traffic cocaine;

ii.

Whether Detective Constable Green formed a
    reasonable suspicion that the appellant was already engaged in trafficking before
    giving him the opportunity to traffic cocaine; and

iii.

Whether the circumstances in this case are the
    same as in the case of Mr. Williams, one of the appellants in
R. v.
    Ahmad
, 2020 SCC 11 (
Ahmad SCC
), such that the appellant should
    also be found to have been entrapped.

BACKGROUND FACTS

[4]

On July 20, 2016, Detective Constable Green received
    an anonymous tip. The tip was that Thomas Zakos, who went by the name TJ, was
    a cocaine and marijuana dealer who conducted his drug deals at the Ultramar gas
    station near Durham College in Oshawa, using the cellphone number 613-329-8098.

[5]

After receiving the tip, Detective Constable Green
    checked the police record management system and MTO records and found a person
    named Thomas Zakos with an address in Lyndhurst, Ontario who had no criminal
    record.

[6]

Detective Constable Green continued his
    investigation of this tip by texting the target at the number 613-329-8098. He
    and the target exchanged the following text messages:

Green
: This tj?

8098
: Who is this

Green
: Scot, got your number from my cousin.
    You still around the college?

8098
: Whos your cousin

8098
: Yes still close but I moved

Green
: Jay said he got off you at the gas
    station a while back. U good for powder?

8098
: How much were you looking for

Green
: How much for a b?

8098
: 230

8098
: Real nice

Green
: Thats good man Good stuff tho?

8098
: Its real nice. havent had a complaint
    all year haha

Green
: When can u meet?

8098
: Let me text me roommate he can meet you
    Im out of town.

Green
: Ok let me know. how long u think hell
    be?

8098
: An hour, I think.

Green
: you want me to message you or your
    roommate

8098
: 289-928-5474.

[7]

Detective Constable Green then sent a text
    message to the phone number given to him by the target, 289-928-5474. Later
    that day, Detective Constable Green purchased 2.8 grams of cocaine from the
    appellants contact at 1756 McGill Court in Oshawa.

[8]

On July 21, 2016, Detective Constable Green
    again texted 613-329-8098 (the number for TJ) and arranged to purchase a half
    ball of cocaine. He collected 1.76 grams of cocaine later that day from the
    appellants contact at 1756 McGill Court.

[9]

Later in the evening on July 21, 2016, Detective
    Constable Green attended 1756 McGill Court again. The appellant met him at the
    door and went down to the basement of the residence to retrieve the drugs. Detective
    Constable Green purchased a half ball of cocaine from the appellant for $130.

[10]

Early in the morning on July 22, 2016, a search
    warrant was executed at the premises and the appellant was arrested. Thirty-three
    grams of cocaine were found on a desk in the basement of the residence. (The
    appellant was acquitted of the charge of possession for the purpose of
    trafficking relating to the 33 grams of cocaine. The trial judge held that the
    area where the 33 grams were found was accessible to all and that there were no
    personal identifiers nearby linking it to the appellant. She therefore concluded
    that, in all the circumstances, the Crown had not proven beyond a reasonable
    doubt that the appellant had knowledge and some measure of control over the
    package.)

[11]

The appellant was convicted of three charges of trafficking
    in cocaine from July 20 to July 22, 2016, and possession of the proceeds of
    crime.

THE APPLICATION FOR A STAY OF PROCEEDINGS

[12]

After his conviction but before being sentenced,
    the appellant sought a stay of proceedings on the grounds that he had been
    entrapped.

[13]

He claimed he was provided the opportunity to
    traffic cocaine when Detective Constable Green asked the appellant, U good for
    powder? (In drug parlance, cocaine in powder form). He further claimed that at
    this point, police had not yet formed a reasonable suspicion that the appellant
    was engaged in criminal activity or that the phone line was being used to
    traffic cocaine. This, he said, was entrapment by Detective Constable Green and
    for this reason, a stay of proceedings should be entered.

[14]

The respondent took the position that the
    appellant was not entrapped as the question U good for powder? was simply an
    open-ended, exploratory question about whether the appellant was a drug dealer.
    It was not until Detective Constable Green asked, How much for a b? that the
    appellant was given the opportunity to commit the offence of trafficking
    cocaine, which he did. The respondent therefore claimed the appellant was not
    entrapped.

THE TRIAL JUDGES DECISION ON THE ISSUE OF
    ENTRAPMENT

[15]

The trial judge dismissed the appellants
    application for a stay of proceedings. She held that the appellant was not
    entrapped because:

This was not a random call or random virtue
    testing, but a focused investigation directed at a particular phone line.

Although the person on the phone did not
    confirm he was TJ, he did not question it or redirect the caller. Moreover, he
    continued to engage in conversation responding that he was still around the
    college, adding to the development of reasonable suspicion.

The call continued, not with a request to
    purchase a specific quantity of drugs but a less definite and still, more in
    the nature of an exploratory question, employing language commonly used in the
    drug trade.

Applying the principles and tests set out in
Williams and Ahmad
, I find that
    Detective Constable Green had a reasonable suspicion that the phone line was
    being used as a means for a prospective drug buyer to contact the seller and arrange
    to purchase drugs and was engaged in a
bona fide
inquiry.

[]

As a result, Mr. Zakos and Mr. Walsh have not
    met their burden of establishing entrapment on a balance of probabilities. It
    is not one of the clearest of cases warranting a stay.

THE ISSUES ON THIS APPEAL

[16]

The appellants position on this appeal is that
    the trial judge erred in concluding that he was not entrapped by Detective Constable
    Green. Specifically, he claims the trial judge erred:

i.

in deciding that Detective Constable Greens
    question, U good for powder did not provide the appellant an opportunity to
    commit a crime, and

ii.

in holding that Detective Constable Green did
    not provide the appellant with the opportunity to traffic cocaine until he asked,
    How much for a b?

[17]

The trial judge relied on this courts decision
    in
R. v. Ahmad,
2018 ONCA 534, 141 O.R. (3d) 241 (
Ahmad ONCA
),
    revd in part, 2020 SCC 11 (
Ahmad SCC
).

[18]

The trial judge did not have the benefit of the
    Supreme Courts judgment in
Ahmad SCC
when she rendered her decision
    on this application.

[19]

The appellant claims his situation is
    indistinguishable from that of Mr. Williams, one of the appellants in
Ahmad
    SCC
, who received a stay of proceedings by the Supreme Court on the
    grounds that he was entrapped. As such, he claims a stay of proceedings should
    be entered.

[20]

Before analyzing the circumstances in this case,
    I will set out the legal test for finding entrapment.

THE LAW OF ENTRAPMENT

What is Entrapment?

[21]

Entrapment is the conception and planning of an
    offence by an officer, and his procurement of its commission by one who would
    not have perpetrated it except for the trickery, persuasion, or fraud of the
    officer:
R. v. Mack
,

[1988] 2 S.C.R. 903, at pp. 917-18,
    citing
Sorrells v. United States
, 287 U.S. 435 (1932), at p. 454.

[22]

Entrapment is not a defence. It is an
    application of the doctrine of abuse of process for which the remedy is to stay
    the proceedings:
Mack
, at pp. 938-42;
Ahmad SCC,
at paras.
    16-17.

Reasons for the Entrapment Remedy

[23]

Entrapment recognizes that the state may not
    engage in conduct that violates the notions of decency and fair play as the
    ends do not justify the means utilized:
Mack,
at pp. 938-40;
Ahmad
    SCC,
at para. 16.
T
he
    administration of justice would be brought into disrepute if the state were
    permitted to punish someone whom the state itself caused to transgress:
Mack,
at pp. 938-42, 944;
Ahmad SCC
,

at paras. 16-17.

[24]

The entrapment framework balances the need to
    protect privacy interests and personal freedom from state intrusion against the
    states legitimate interests in investigating and prosecuting crime:
Mack,
at
    pp. 941-42;
Ahmad SCC,
at para. 22.

[25]

In
Mack,
Lamer J.

(as he then
    was), explained, at p. 941:

There is perhaps a sense that the police
    should not themselves commit crimes or engage in unlawful activity solely for
    the purpose of entrapping others, as this seems to militate against the
    principle of the rule of law. We may feel that the manufacture of crime is not an
    appropriate use of the police power.... Ultimately, we may be saying that there
    are inherent limits on the power of the state to manipulate people and events
    for the purpose of attaining the specific objective of obtaining convictions.
    These reasons and others support the view that there is a societal interest in
    limiting the use of entrapment techniques by the state.

[26]

He noted, at p. 917:

There is a crucial distinction, one which is
    not easy to draw, however, between the police or their agentsacting on
    reasonable suspicion or in the course of a
bona fide
inquiryproviding
    an opportunity to a person to commit a crime, and the state actually creating a
    crime for the purpose of prosecution. The former is completely acceptable as is
    police conduct that is directed only at obtaining evidence of an offence when
    committed. The concern is rather with law enforcement techniques that involve
    conduct that the citizenry cannot tolerate. [Emphasis in original; citations omitted.]

[27]

Because the state is not permitted to engage in
    abusive police conduct
, where
    police are involved in the commission of an offence, entrapment is made out and
a stay of proceedings will be entered:
Mack,
at para. 942;
Ahmad
    SCC,
at para. 16.

[28]

A finding of entrapment is reserved for the clearest
    of cases of intolerable state conduct:
Mack
, at pp. 976-77;
R. v.
    Ray,
2020 ONCA 351, 155 O.R. (3d) 481, at para. 36.

The Two Branches of Entrapment

[29]

There are two alternative branches of entrapment,
    either of which may lead to a finding of entrapment justifying a stay of
    proceedings:

i.

Where police offer an individual the opportunity
    to commit an offence without acting on a reasonable suspicion that the
    individual is already engaged in that type of criminal activity or pursuant to
    a
bona fide
inquiry; or

ii.

Where, although acting with reasonable suspicion
    or pursuant to a
bona fide
inquiry, police go beyond providing an
    opportunity to commit an offence and induce a person to commit an offence:
Mack
, at pp. 964‑65;
Ahmad SCC
,
at para. 15
.

The Factors to be Considered on the First Branch of Entrapment

[30]

The parties agree that while the appellant was
    given the opportunity to traffic cocaine, he was not induced to do so. As such,
    only the first branch of entrapment is at issue in this case, that is, whether Detective
    Constable Green offered the appellant the opportunity to traffic cocaine
    without reasonably suspecting that he was engaged in trafficking cocaine.

A.

Reasonable suspicion as a prerequisite to
    providing an opportunity to commit an offence

[31]

Entrapment under the first branch is made out
    when police provide the accused with an opportunity to commit an offence,
    without first having a reasonable suspicion that
either (1) a specific person is engaged in criminal
    activity; (2) people are carrying out criminal activity at a specific location,
    sometimes referred to as a
bona fide
inquiry:
Ahmad
    SCC,
at para. 19, citing
Mack,
at pp.
    956, 959. A
bona fide
inquiry is not a separate and freestanding way to
    entrap an individual, but describes the reasonable suspicion standard in a
    location:
Ahmad SCC,
at para. 20;
R. v.
    Henry-Osborne
, 2021 ONCA
    561,

at para. 16.

[32]

In the context of a dial-a-dope operation, police
    must have a reasonable suspicion that the person answering the phone is already
    engaged in drug trafficking before providing an opportunity to traffic drugs:
Ahmad
    SCC,
at para. 42;
Henry-Osborne,
at para. 16. The factors
    supporting reasonable suspicion may relate to the individual, the telephone
    number, or both:
Ahmad SCC,
at para. 42.

[33]

When police receive a tip, a police officer
may develop reasonable suspicion before contacting the
target
, or in the course of a conversation
    with the target:
Ahmad SCC
, at para. 54.

[34]

If the
police
have not formed a reasonable suspicion before making the call, they
    must form a reasonable suspicion in the course of the call
before
providing an opportunity to commit a crime:
Ahmad
    SCC
, at para. 69.

[35]

The difficulty lies in determining at what point
    in a conversation exploration ends, and an opportunity to commit an offence is
    provided.

B.

What constitutes reasonable suspicion

[36]

Reasonable suspicion requires a constellation
    of objectively discernible facts giving the officer reasonable cause to
    suspect that a certain kind of offence is being committed by a particular
    person in a particular place:
Ahmad SCC,
at para. 46, citing
R. v.
    Simpson
(1993), 79 C.C.C. (3d) 482 (Ont. C.A.)
,
at p. 501.

[37]

The reasonable suspicion standard requires only
    the possibility, rather than the probability, of criminal activity:
Ahmad
    SCC,
at para. 46. The suspicion must be focused, precise, reasonable, and
    based in objective facts that stand up to independent scrutiny:
Ahmad
    SCC,
at para. 46, citing
R. v. MacKenzie
, 2013 SCC 50, [2013] 3
    S.C.R. 250
,
at para. 74.

[38]

Reasonable suspicion is not an unduly onerous
    standard:
Mack,
at p. 958;
Ahmad SCC
, at para. 45.

[39]

The majority in
R. v. Bank
, 2021 ABCA
    223, 406 C.C.C. (3d) 329, at para. 104, noted that:

[A] court cannot convict an accused of a
    criminal offence unless the Crown has proved the physical and mental elements
    of the crime beyond a reasonable doubt. because of the severity of the
    consequences of a criminal conviction. A lesser degree of certainty is needed
    to validate an arrest  which, while it temporarily deprives a person of his or
    her liberty, it results in no verdict of criminal wrongdoing.... And a still
    lesser degree of certainty is needed to justify a police officer interacting
    with a target and presenting him or her with an opportunity to commit a crime 
    or not.

[40]

The primary purpose of the reasonable suspicion
    standard is to permit meaningful judicial review of police conduct:
Ahmad
    SCC,
at paras. 24, 45-46 & 83.

[41]

In assessing whether a case for reasonable
    suspicion has been made out, the analysis of objective reasonableness should be
    conducted through the lens of a reasonable person standing in the shoes of the
    police officer:
MacKenzie
, at para. 63;
Bank
, at para. 113.
    An officers training or experience can make otherwise equivocal information
    probative of criminal activity:
Ahmad SCC,
at para. 47.

[42]

However, hunches grounded in an officers
    experience are not sufficient, and deference is not owed to a police officers
    view of the circumstances based on their training or experience:
MacKenzie,
at para. 64;
R. v. Chehil,
2013 SCC 49, [2013] 3 S.C.R. 220, at
    para. 47. Reasonable suspicion remains an objective standard that must
    withstand judicial scrutiny:
MacKenzie,
at para. 64;
Chehil,
at
    para. 26.

[43]

A bare tip from an unknown source that someone
    is dealing drugs from a phone number is therefore insufficient to create
    reasonable suspicion:
Ahmed SCC,
at paras. 4, 53. However, a
    reasonable suspicion may develop if this information is supplemented by the
    discovery of other facts in the course of a post-tip investigation.

[44]

Corroboration of the tip must suggest that it is
    reliable in its assertion of illegality, not just in its identification of a
    particular person:
Ahmad SCC,
at para. 50, citing
Florida v. J.
    L.,
529 U.S. 266 (2000),

at p. 272. The targets responsiveness
    to details in the tip, and to slang used in drug trafficking, along with other
    factors, may reinforce the reliability of the tip:
Ahmad SCC
, at para.
    55.

C.      The
    difference between exploratory questions and questions that provide the accused
    with an opportunity to commit an offence

[45]

Police can make exploratory requests of the
    target without providing an opportunity to traffic, including asking whether
    they sell drugs:
Ahmad SCC
, at para. 66.

[46]

In
R. v. Imoro
, 2010 ONCA 122, 251
    C.C.C. (3d) 131, at para. 16, affd 2010 SCC 50, [2010] 3 S.C.R. 62, Laskin
    J.A. for this court also held that the officers question to the target, Can
    you hook me up? was simply an exploratory question. And 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, Rosenberg J.A. for this court held that the words I need
    product was a legitimate investigative step. In
Ralph,
the
    appellants response together with the tip was sufficient to provide the
    officer with reasonable suspicion.
Rosenberg J.A. held
, at para. 2, that [t]he exact words of the telephone conversation
    are important for the entrapment issue.

[47]

The majority in
Ahmad
    SCC
, at paras. 64-66, held that,

[A]n opportunity to commit an offence is
    offered when the officer says something to which the accused can commit an
    offence by simply answering yes.

[
]

An opportunity has been provided only when the
    terms of the deal have narrowed to the point that the request is for a specific
    type of drug and, therefore, the target can commit an offence by simply
    agreeing to provide what the officer has requested. In some cases, a request to
    purchase a specific quantity of drugs will suffice.... [C]ourts have
    consistently recognized that a request to purchase a specific type of drug
    during the conversation will amount to an opportunity to commit a crime. [Emphasis
    added.]

[48]

In determining when an opportunity is provided,
    the majority in
Ahmad SCC
adopted the characterization of the trial
    judge, Trotter J. (as he then was), of the difference between exploratory
    conversation and creating an opportunity to traffic, in
R. v.

Williams,
2014 ONSC 2370, 141 O.R. (3d) 241, revd in part on other grounds, 2020
    SCC 11. Trotter J. held, at para. 27, that:

The distinction between statements such as I
    need product/Can you hook me up?/ Are you around? /Where are you?,
    on the one hand, and I need 80 /I need 40 /I need 6 greens/I need half a
    B, on the other, might appear quite subtle. However,
the latter statements,
    involving requests to purchase a specific quantity of drugs, are more definite
    and less exploratory. With the former, the possibility of a deal still needs to
    be explored and developed; with the latter, all the accused needs to say is say
    yes.
[Emphasis added.]

[49]

In sum, the feature that distinguishes exploratory statements from those
    that create an opportunity to commit an offence seems to be the making of an
    offer to purchase, such that all the target must do is accept the terms. A
    court must examine all the circumstances, including the language used in the
    communication with the target, in determining whether police formed a
    reasonable suspicion before providing an opportunity:
Ahmad SCC,
at
    para. 61.

[50]

The words used, the meaning of the words used, and the context of
    the words in the conversation up to the point the question or statement at
    issue is made, are all factors to be considered in determining whether there
    was an offer to purchase:
Ahmad SCC
, at paras. 61-66.

The police officers language to the target
    must be an offer that, if accepted, would constitute an offence.

[51]

Entrapment
    is not made out if the opportunity to commit an offence is made after police

have a reasonable suspicion that the target is engaged in specific criminal
    activity or that specific criminal activity is taking place at a specific
    location:
Ahmad SCC
, at para. 19.

ANALYSIS AND CONCLUSION

The Issue

[52]

The appellant claims Detective Constable Green
    gave him the opportunity to traffic cocaine when he asked, U good for powder?
    and that, at this point, Detective Constable Green did not have reasonable
    suspicion that he was trafficking cocaine. As such, he claims he was entrapped.

[53]

The respondent submits that the appellant was
    not given the opportunity to traffic cocaine until Detective Constable Green
    asked him, How much for a b?. By this time, Detective Constable Green had
    formed a reasonable suspicion before he provided the opportunity to traffic
    cocaine such that the appellant was not entrapped.

[54]

The
key issue is whether Detective Constable Green provided the
opportunity to traffic cocaine
before he had reasonable suspicion that the appellant was
    trafficking cocaine.

[55]

In deciding whether a question is merely
    exploratory or constitutes an opportunity to commit an offence, one must look
    at the words used, the meaning of the words, and the context of the
    conversation up to the point the question or statement at issue is made.

[56]

Whether there was entrapment in this case
    depends
on the
meaning of the words U good for powder? and whether they
    constitute an opportunity to traffic.

[57]

If the question U good for powder? is merely an
    exploratory question, there was no entrapment, as the appellants response to
    the question was sufficient to ground a reasonable suspicion. However, if the
    words constitute an opportunity to traffic cocaine, as the appellant suggests,
    the appellant was entrapped, as Detective Constable Green did not have
    sufficient information before this question was asked to ground a reasonable
    suspicion.

Detective Constable Greens Exploration of the Tip

[58]

Detective Constable Green did not have a
    reasonable suspicion about the target prior to making the call as the tip was
    from an anonymous source. The further information he obtained about the target
    did not corroborate the tip, as there was no confirmation that the target lived
    in the area where the deals were alleged to take place, or that he had prior
    criminal convictions: see
Ahmad SCC
, at para. 50. He therefore needed to conduct further
    exploration to corroborate the tip he had received that the target was selling marijuana
    and cocaine near Durham College using the cellphone number provided.

[59]

Detective Constable Green texted the number to pursue
    his inquiry into the tip. He needed to obtain further information about whether
    the target was engaged in trafficking or that the phone number was used by someone
    engaged in trafficking.

[60]

When Detective Constable Green asked the target
    if he was TJ, the target did not deny that he was TJ nor did he redirect his text.
    Instead, the target engaged in conversation and confirmed that he was still
    around Durham College, thereby confirming some details of the tip. However,
    this was not sufficient to form a reasonable suspicion that the target was
    selling cocaine, because it did not strengthen the reliability of the tip in
    its assertion of illegality:
Ahmad SCC
, at paras. 50, 80, citing
J. L.
, at p. 272.

The Significance of the Question U good for powder? and the Development
    of a Reasonable Suspicion

[61]

Detective Constable Green then asked, U good for powder?

[62]

Detective Constable Green testified that powder
    means cocaine.

[63]

This was not an opportunity to traffic cocaine. There was (i) no
    offer on the part of Officer Green to buy cocaine, and (ii) no terms of an
    offer discussed. As such, the terms of the deal had not been narrowed to the
    point where the appellant could commit an offence by responding affirmatively
    to what Detective Constable Green requested. At most, he was asking whether the
    appellant had cocaine to sell. As this court found in
Imoro,
at para. 16, the question
    amounted to whether the appellant was a drug dealer.
As such, this
    question did not provide the appellant the opportunity to traffic cocaine.

[64]

Once
    the appellant answered, How much were you looking for, Detective Constable
    Green had sufficient information to generate a reasonable suspicion that the
    appellant trafficked cocaine. He had (i) received the tip
that
    a person who went by the name TJ sold cocaine and marijuana near Durham College
    and used an 8098 telephone number
, (ii) some information in the tip had
    been verified including the appellants location near Durham College, (iii) the
    appellant did not deny that he was TJ, suggest the caller had the wrong number or
    redirect the call and instead, continued to converse with Detective Constable Green,
    and (iv) the appellant responded positively to Detective Constable Greens use of
    language particular to the drug subculture: U good for powder? by asking How
    much were you looking for.

[65]

Having
    connected the tip to the person on the phone, the aspect of the tip that
    asserted illegality was corroborated by the appellants understanding of drug
    trafficking slang and willingness to engage in it: see
Ahmad
    SCC,
at para. 75. Taken together, these factors grounded a
    reasonable possibility that the appellant was involved in drug trafficking: see
Ahmad SCC,
at para. 76.

[66]

Drawing
    the distinction at this juncture is consistent with the need to balance protecting
    privacy interests and personal freedom from state intrusion and the states
    legitimate interest in investigating and prosecuting crime: see
Mack,
at pp. 941-42;
Ahmad SCC,
at para. 22.

The Significance
    of the Question How much for a b?

[67]

Detective Constable Green then asked the target the further
    question, How much for a b? The appellant replied, 230.

[68]

The question How much for a b? provided the appellant with the
    opportunity to commit the offence of trafficking cocaine.
As
    noted above, it is the specific offer to purchase the drugs that amounts to an
    opportunity to commit the crime:
Ahmad SCC
, at para. 59;
Imoro
,
at
    paras.
3, 16
.

[69]

By the time Detective Constable Green asked, How much for a b?,
    he had
a reasonable suspicion that the appellant was involved
    in trafficking cocaine and it was therefore permissible to provide the
    appellant the opportunity to commit the offence.

Whether the Facts in this Case are Indistinguishable from Those in Mr. Williams
    Case

[70]

I
    do not accept the appellants submission that this case is indistinguishable
    from the case of Mr. Williams, one of the appellants in
Ahmad
    SCC
. In both cases, the
police
    were working from a tip that the individual was a cocaine dealer
and contacted
    the number they were given in the tip. However, unlike this case, in the case
    of Mr. Williams
,
immediately after introducing
    himself, the police officer requested a specific quantity of cocaine from Mr. Williams.
    This was an offer to purchase, which offer was accepted. The exchange was as
    follows:

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.

[71]

In
    the case of Mr. Williams, as soon as the target confirmed who he was, the
    officer presented
an opportunity to traffic drugs by asking to
    purchase a specific quantity, 80, slang for a dollar amount of cocaine. Once Mr.
    Williams responded Okay the offence of trafficking by offer was complete:
Ahmad
    SCC,
at para. 79.

[72]

However, there was nothing in Mr. Williams responses before the officer
    provided the opportunity to traffic that suggested the phone number was being
    used to traffic drugs. Mr. Williams responded positively to the name Jay
    provided in the tip, but this corroboration of one aspect of the tip was not
    enough to ground a reasonable suspicion as it does not strengthen the tip in
    its assertion of illegality:
Ahmad SCC
, at para. 80, citing
J. L.
,
    at p. 272.

[73]

Therefore, in Mr. Williams circumstances
,
the police
    provided the opportunity to traffic cocaine without yet having reasonable
    suspicion that Mr. Williams was selling cocaine. In this case, the
    question How much for a b? constituted an opportunity to traffic. Unlike the
    situation involving Mr. Williams
,
Detective Constable Green provided
    the opportunity to traffic after he had formed reasonable suspicion, based on the
    information he had and the appellants response to the question U good for
    powder?

[74]

As such, this case is distinguishable from the circumstances in Mr. Williams
    case, discussed in
Ahmad SCC
.

CONCLUSION

[75]

For
    the above reasons, while the trial judge did not have the benefit of the
    Supreme Courts decision in
Ahmad SCC
, I see
    no error in her analysis or her conclusion that the appellant was not
    entrapped.

[76]

I would therefore dismiss the appeal.

Released: February 11, 2022 K.F.

J.A.
    Thorburn J.A.

I
    agree. K. Feldman J.A.

I agree. J.C. MacPherson J.A.


