



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Henry-Osbourne, 2021 ONCA
    561

DATE: 20210806

DOCKET: C66568

Tulloch, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lynston Henry-Osbourne

Appellant

Jeffery Couse, for the appellant

David Quayat, for the respondent

Heard: May 14, 2021 by video
    conference

On appeal
    from the convictions entered by Justice Wailan Low the Superior Court of
    Justice on September 26, 2017, and from the ruling on entrapment dated November
    7, 2017 with reasons reported at 2017 ONSC 6714.

Roberts
    J.A.:

Overview

[1]

The appellant appeals the dismissal of his
    application for a stay of his convictions for trafficking heroin to an
    undercover police officer on three different occasions in the course of
    dial-a-dope operations, and for the possession of the proceeds of crime from
    trafficking. The appellant maintains that the trial judge erred in failing to
    find that he was entrapped by the police into committing the offences that
    formed the basis for his convictions.

[2]

At issue in this appeal is whether the
    application of the Supreme Courts analytical framework on the law of
    entrapment in
R. v. Ahmad
,
2020
    SCC 11, 445 D.L.R. (4th) 1,
to the circumstances of
    this case would have led to a stay of the convictions. For the reasons that
    follow, I say it would not and would dismiss the appeal.

(i)

Guilty pleas and convictions

[3]

On September 26, 2017, following a re-election
    to a trial before a judge alone and pursuant to an agreed statement of fact,
    the appellant pled guilty to four counts of an eight-count indictment. The four
    remaining counts were withdrawn at the Crowns request.

[4]

The basic factual underpinnings for the convictions
    were founded on the following agreed statement of fact:

On May 9, 2015, the [Toronto Drug Squad] entered
    into a drug investigation. A now retired officer Tony Canepa negotiated the
    purchase of a gram of heroin with an individual referred to as Prince for
    $200. Tony Canepa attended the area as directed and met Prince, who was later
    identified as Mr. Henry-Osborne. Tony Canepa gave Mr. Henry-Osbourne $200 in
    marked police buy money and in return received a quantity of heroin, later
    determined to weigh 1.08 grams.

On May 11, 2015 Tony Canepa called Prince
    again and entered into another drug related conversation. Prince agreed to
    sell a gram of heroin for $200 directing the officer to meet him in the area of
    Jane Street and Sheppard Avenue, Toronto. Tony Canepa attended the area as
    directed and met Mr. Henry-Osbourne. Tony Canepa gave Mr. Henry-Osborne $200 in
    marked police buy money and in return received a quantity of heroin, later
    determined to weigh 1.06 grams.

On July 11, 2015
    Tony Canepa called Prince again and entered into another drug related
    conversation with Prince. Prince agreed to sell 6.5 grams of heroin for
    $1000 directing the officer to meet him in the area of Jane Street and Sheppard
    Avenue, Toronto. Tony Canepa attended the area as directed and met Mr.
    Henry-Osbourne. Tony Canepa gave Mr. Henry-Osborne $1000 in marked police buy
    money and in return received a quantity of heroin, later determined to weigh
    6.5 grams. Mr. Henry-Osbourne was subsequently arrested. The $1000 of police
    buy money and a telephone was found on him during a search incident to arrest.
    The police confirmed the phone in his possession was assigned to phone number
    416.302.4105 that the police had used to contact Prince previously.

[5]

The trial judge found the appellant guilty on
    three counts of trafficking heroin and one count of possession of the proceeds
    of crime from trafficking.

(ii)

Application for a stay of the convictions

[6]

On September 26 and 27, 2017 the appellant
    brought an application before the trial judge to stay his convictions on the
    ground that he was entrapped into the criminal conduct underlying the guilty
    pleas.

[7]

The evidence on the application consisted of the
    agreed statement of fact and the
viva voce
evidence of the undercover
    officer, Tony Canepa, who had retired by the time of the application. Officer
    Canepa testified about the information that he had received prior to calling
    the appellant, and the conversations and text exchanges that he had with the
    appellant and others in the course of the heroin purchases. I examine those
    conversations and texts in further detail later in these reasons.

[8]

The trial judge applied the following test for
    entrapment under
R. v. Mack
, [1988] 2 S.C.R. 903, at p. 959, which she
    identified as the governing jurisprudence at that time:

There is,
    therefore, entrapment when: (a) the authorities provide an opportunity to
    persons to commit an offence without reasonable suspicion or acting
mala
    fides
or, (b) having 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.

[9]

The trial judge concluded that there was no
    evidence of the undercover officer offering an inducement and that the conduct
    of the investigation did not constitute random virtue testing because it was
    focused on one individual possessing several articulated physical
    characteristics and three specific patterns of conduct: the use of the style
    Prince, the use of a specific telephone number, and dealing in heroin. She
    also found that there was no evidence that the undercover police officer was
    not acting
bona fide
in investigating the tip that led to the
    telephone calls.

[10]

The trial judge made no specific finding as to
    whether Officer Canepa had a reasonable suspicion to believe the appellant was
    involved in drug trafficking before presenting him with an opportunity to
    commit a crime because she determined that the reasonable suspicion standard
    articulated under the first branch of the
Mack
test was inapplicable
    in a dial-a-dope context involving the
bona fide
investigation of a
    tip. The trial judge reasoned as follows:

In the context
of
dial-a-dope
operations,
    many
undercover investigations will start
with a tip
only,
and
for
that reason,
it will not
be possible to
say that
the
police
    start out with a
reasonable
suspicion
. The police nevertheless
have
a
duty to
investigate,
and in the dial-a-dope context,

investi
g
ation requires
a
call
to
the target
number
to de
te
rmine
whether
the
    tip can be
confirmed.

[11]

The trial judges reasoning on this point was
    tied to her holding that an opportunity to offend existed as soon as police
    placed a call using drug-coded language to the targeted phone number. She interpreted
Mack
to mean that:

an opportunity to
    offend [i.e. a drug-coded phone call] may properly be extended to the target of
    a
bona fide
investigation if it is in the course of and for the
    purposes of the investigation whether the information in the possession of the
    police at the time of the offer rises to the level of a reasonable suspicion or
    is only at a level of a mere suspicion.

[12]

On that basis, the trial judge found that the
    appellant had not been entrapped by the police and dismissed the appellants
    stay application. On February 9, 2018, the appellant received a global sentence
    of 3 years, 2 months and 27 days, which he does not seek to appeal separately
    from the convictions.

Issues and the Parties Positions

[13]

The appellants principal submission is that the
    trial judge erred in applying the wrong test for entrapment. Specifically, the
    appellant submits that the
t
rial judge erred in law by applying a
bona fide

investigation test rather than the reasonable
    suspicion test required under the Supreme Courts most recent articulation of
    the test for entrapment in
Ahmad
. The appellant maintains that, like in
R. v. Williams
, the
    companion case to
Ahmad
, the brief conversations and texts between the appellant
    and the undercover officer did not afford a sufficient basis to ground a
    reasonable suspicion.

[14]

The Crown submits that while the trial judge did not have the
    benefit of the Supreme Courts guidance in
Ahmad
,
    the trial judges jurisprudential instinct and factual findings were nevertheless
    correct. According to the Crown, the circumstances of the present case are
    almost identical to those in
Ahmad
. Applying
Ahmad
to the circumstances of the present case, the Crown
    argues, still leads to the trial judges conclusion that there was no
    entrapment.

Analysis

(a)

Ahmad
analytical
    framework

[15]

As this court very recently acknowledged in
R.
    v. Ramelson
, 2021 ONCA 328, appeal as of right filed [2021] S.C.C.A No.
    137, at para. 34,
Ahmad
did not fundamentally change the law of
    entrapment as it stood under
Mack
and
R. v. Barnes
, [1991] 1
    S.C.R. 449. See also:
R. v. Ghotra
, 2020 ONCA 373, at paras. 16 to 19.
    However, the majority in
Ahmad
provided important clarifications on how
    to apply the law of entrapment in the context of dial-a-dope operations,
    particularly with respect to the assessment of reasonable suspicion.

[16]

In the context of a dial-a-dope investigation, police
    may provide an opportunity to commit a crime only upon forming a reasonable
    suspicion that the person answering the phone is engaged in drug trafficking:
Ahmad
,
    at para. 44. The majority in
Ahmad
was careful to emphasize at para.
    20 that a
bona fide
investigation is not a separate and freestanding
    way to entrap an individual. Rather, an investigation is
bona fide
where the police have reached a threshold of reasonable suspicion and they have
    a genuine purpose of investigating crime. Ultimately, the entrapment analysis focuses
    on whether the police had formed a reasonable suspicion when they created an
    opportunity to commit a crime:

The reasons in
Mack
make clear that a
bona fide
inquiry into a location is premised upon
    and tethered to reasonable suspicion. An investigation is 
bona fide

    where the police have a reasonable suspicion over a location or area, as well
    as a genuine purpose of investigating and repressing crime.
A bona fide investigation is not a separate and freestanding
    way for police to entrap an individual, but a means of expressing the threshold
    of reasonable suspicion in a location. The offer of an opportunity to commit a
    crime must always be based upon a reasonable suspicion of particular criminal
    activity
, whether by a person, in a place defined with sufficient precision,
    or a combination of both. [Emphasis added.]

[17]

The Supreme Court also made clear in
Ahmad
that the police can develop reasonable suspicion either before placing a call
    to a suspected drug line or in the course of a conversation with the target:
Ahmad
,
    at para. 54. If the police do not have reasonable suspicion before a call is
    made, it must be developed during the call but before an opportunity to commit
    a crime is presented to the target:
Ahmad
, at para. 69. The Court
    explained at para. 66 what is meant by an opportunity to commit a crime:

[P]olice can make
    exploratory requests of the target, including asking whether they sell drugs,
    without providing an opportunity to traffic in illegal drugs. 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.
    [Citations omitted.]

(b)

Trial judges approach

[18]

Viewed through the lens of
Ahmad
, the
    trial judges approach was flawed in that she did not make a specific finding
    as to whether the police had formed a reasonable suspicion at the moment the
    offer to buy drugs was made. As already noted, she made no distinction between
    reasonable suspicion and mere suspicion so long as the investigation was
bona
    fide
.

[19]

The trial judge relied on investigative
bona
    fides
as a separate means by which to justify the undercover officers
    offer to purchase drugs. However,
Ahmad
makes clear that investigative
bona fides
will not supplant an absence of a reasonable suspicion at
    the moment police make a concrete offer to buy drugs.

[20]

The trial judge should have considered whether,
    in the context of a
bona fide
investigation, the officer had a
    reasonable suspicion that the appellant was engaged in drug trafficking before
    he placed his order to purchase drugs.

(c)

Ahmad
analytical
    framework applied

[21]

The primary issue in this appeal is therefore
    whether a proper application of the
Ahmad
analytical framework would
    have led to a different result. In my view, it would not. For the reasons that
    follow, I conclude that the trial judges factual findings were unaffected by
    her analytical approach and that her ultimate conclusion that there was no entrapment
    was correct.

[22]

The appellant submits that the outcome would
    have been different under
Ahmad
because the police did not have a
    reasonable suspicion that the appellant was trafficking heroin for the
    following three reasons:

a.       The appellant was targeted based on a
    bald, uncorroborated tip of unknown reliability, credibility and recency.

b.       The undercover officer did not
    adequately corroborate the tip during his telephone call with the appellant
    prior to asking him to traffic heroin.

c.       Despite
    the appellant declining to commit the offence or partake in drug subculture
    language, the undercover officer continued to pursue the investigation.

[23]

I am not persuaded by these submissions.

[24]

Because it is a contextualized, individualized,
    and fact-driven inquiry, the determination of reasonable suspicion requires a careful
    examination of the evidence and an assessment of the entire constellation of
    objectively discernable facts:
Ahmad
, at paras. 46 and 48. As a
    result, simply comparing the circumstances of this case to those in
Ahmad
,
    where no entrapment was found, or in
Williams
, where it was, is not
    dispositive of the issue. The circumstances of the present case differ because
    they comprehend not one conversation but a series of telephone conversations
    and text exchanges that culminated in the offer and purchase of heroin. It is
    therefore necessary to examine all the relevant circumstances to determine if
    the appellant was entrapped.

[25]

While the undercover officer may not have had a
    reasonable suspicion before first calling the appellant, he formed a reasonable
    suspicion during the initial telephone call, which was strengthened by the
    subsequent text and telephone exchanges, and prior to offering the appellant
    the opportunity to traffic heroin by requesting a specific quantity of a
    particular drug.

[26]

Prior to making the initial call, Officer Canepa
    had been advised by Detective Brons that an individual named Prince was
    trafficking heroin using a specific telephone number. Detective Brons gave a
    physical description of Prince. He instructed Officer Canepa to call Prince
    at a specific telephone number, 416-302-4105, and to purchase heroin with
    police buy money, using the drop name Paul.

[27]

Officer Canepa telephoned the number he had been
    given and the following conversation ensued:

Male: Hello.

Officer Canepa: Prince?

Male: Yeah.

Officer Canepa: Can I come see you?

Male: Where did you get my number from?

Officer Canepa: Paul, White guy from St. Claire
    [sic] and Dufferin.

Male: I dont know who you are.

Officer Canepa: Its Sal. I got your number
    from Paul. Do you know Paul?

Male: Yeah. What are you looking for?

Officer Canepa: A GR of H.

Male: I dont know what .

[28]

The line disconnected at that point and Officer
    Canepa tried twice to reach the appellant without success. Officer Canepa then
    received a text message from the same telephone number:

416-302-4105: Who this?

Officer Canepa: Sal. Can I come check you?

416-302-4105: I dont know what youre talking
    about.

Officer Canepa: No
    problem then sorry.

[29]

Officer Canepa testified that he thought that
    the investigation wasnt going anywhere or that the deal was dead at that
    point. However, a few minutes later, he received a telephone call from an
    unknown number and had the following telephone conversation with a different
    male individual:

Officer Canepa: Hello?

Male: Is this Sal?

Officer Canepa: Who is this?

Male: Paul  Do I know you?

Officer Canepa: I dont know.

Male: Prince says I gave you this number.

Officer Canepa: I told Prince I got a number from a guy by the
    name of Paul from St. Claire and Dufferin.

Male: What does Paul look like?

Officer Canepa: White, chubby.

Male: I dont know who you are.

Officer Canepa: Im sure youre not the only Paul around.

Male: Okay.

[30]

A
    few minutes later, Officer Canepa received a text from 416-302-4105, the number
    he had initially called to reach Prince, and had the following exchange:

416-302-4105: How you got this number?

416-302-4105: ?

Officer Canepa: Paul at St. Claire and Dufferin.

416-302-4105: Where you from?

Officer Canepa: St. Clair and
    Dufferin

[31]

About
    four hours later, Officer Canepa received a call from the same number, 416-302-4105,
    and had the following conversation:

Officer Canepa: Hello.

Male: Hey, whats going on?

Officer Canepa: Not much.

Male: Listen  I have to check you. Are you a friend of Nick?

Officer Canepa: Yeah.

Male: Okay. What do you need?

Officer Canepa: One.

Male: A Full one.

Officer Canepa: How much?

Male: Okay, let me call you back in two minutes and tell you
    where to meet me.

Officer Canepa: Okay.

[32]

Following
    this last conversation, Officer Canepa purchased heroin from the appellant on
    the three occasions that formed the basis for the guilty pleas, and on two
    other occasions from individuals whom Prince had sent to complete the
    transactions for him.

[33]

In
    my view, reasonable suspicion existed before the undercover police officer requested
    a specific quantity or type of drug from the appellant during their initial
    call. In any event, having regard to the entirety of the communications leading
    up to Officer Canepas first heroin purchase from the appellant, it is clear
    that reasonable suspicion to believe that the appellant was engaged in drug
    trafficking existed before the appellant again offered to sell him drugs and Officer
    Canepa placed his order for One.

[34]

Before
    asking the appellant for A GR of H in their initial conversation, Officer
    Canepa had already obtained confirmation from the appellant that he was
    Prince, that he was connected to the number that was given for him, and that
    he knew Paul. Officer Canepa also made exploratory requests, engaging in
    drug-coded language, asking the appellant if he could come see him, which Officer
    Canepa testified meant that he was asking if he could purchase drugs from him. Understanding
    Officer Canepas coded request, the appellant then exhibited the kind of
    caution that, as Officer Canepa also testified, is typical of drug dealers who
    are concerned that they may be communicating with an undercover police officer.
    Once he was satisfied that Officer Canepa had obtained his telephone number
    from a trusted source, the drop name Paul, the appellant himself used drug-coded
    language, asking the undercover officer what he was looking for, namely, what
    drugs he wanted to purchase. It was in response to the appellants invitation
    that Officer Canepa placed his order for A GR of H.

[35]

After
    Officer Canepa dropped the inquiry following the exchange with the male who said
    he did not know who he was, the appellant renewed communications with Officer
    Canepa for the express purpose of having to check him, again exhibiting the
    typical wariness of drug dealers against dealing with undercover police. Having
    satisfied himself that the connection was legitimate, the appellant then reiterated
    his offer to sell drugs to Officer Canepa, asking What do you need?,
    drug-coded language asking what drugs he wished to purchase. It was in response
    to this repeated offer to purchase that Officer Canepa asked for One, again,
    drug-coded language which the appellant understood because he indicated he
    would call Officer Canepa back to tell him where to meet him.

[36]

As
    the trial judge correctly found, these circumstances did not constitute prohibited
    random virtue-testing, which the law of entrapment seeks to protect against
    because it violates the principle that it is wrong for the police to
    manufacture crime and prey on the weakness of human nature to entice
    individuals into offending:
Ahmad
, at paras.
    27-28. In the circumstances of this case, it cannot be said that the appellant
    was tempted into committing a crime when he otherwise would not have:
Ahmad
, at para. 28. Rather, after several conversations
    and careful probes to satisfy himself of the callers legitimacy as a drug
    purchaser, the appellant made an offer to sell drugs to Officer Canepa, which
    was accepted. Except for the initial call to Prince, all other communications
    were initiated by Prince, or by the other male individual who contacted
    Officer Canepa. As Officer Canepa formed a reasonable suspicion about the
    appellants trafficking activities before he created opportunities for the
    appellant to break the law, his actions fell well within the boundaries set by
    the Supreme Court in
Ahmad
.

[37]

The onus rests on the appellant to establish entrapment on a balance
    of probabilities:
Ghotra
, at para. 18, citing
Ahmad
, at para.
    31. In my view, he has failed to meet this onus.
I see no basis for a
    finding of entrapment in this case and would uphold the trial judges ultimate
    conclusion that there was none.

Disposition

[38]

For these reasons, I would dismiss the appeal.

Released: August 6, 2021 M.T.

L.B. Roberts
    J.A.

I
    agree M. Tulloch J.A.

I
    agree Gary Trotter J.A.


