



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jageshur, 2017 ONCA 15

DATE: 20170111

DOCKET: C59878

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ramkishore Jageshur

Appellant

Richard J. Posner and Lance C. Beechener, for the
    appellant

Rick Visca and Brendan L. Gluckman, for the respondent

Heard: December 6, 2016

On appeal from the conviction entered on March 7, 2014
    and the sentence imposed on May 21, 2014 by Justice Robert A. Clark of the Superior
    Court of Justice.

Simmons J.A.:

A.

Introduction

[1]

On August 21, 1997, the appellant purchased 18 kilograms of cocaine from
    an undercover RCMP officer for $504,000 in what is known as a "reverse
    sting". He was arrested immediately and charged with possession of cocaine
    for the purpose of trafficking contrary to s. 5(2) of the
Controlled Drugs
    and Substances Act
, S.C. 1996, c. 19 (CDSA).

[2]

The appellant was originally tried for this offence in 2000. The trial
    judge at the first trial acquitted the appellant, holding that the reverse
    sting was illegal and therefore constituted an abuse of process.

[3]

Following his acquittal, the appellant pleaded
    guilty to trafficking one kilogram of cocaine in November 1996 and carrying a
    weapon for a purpose dangerous to the public peace. The latter charge arose
    from the fact that, when police arrested the appellant on August 21, 1997, they
    found a loaded Glock handgun in his car. The appellant was sentenced to one day
    imprisonment for these offences in addition to time served (21 months
    imprisonment credited at the rate of two for one, for a total of 42 months).

[4]

In October 2002, this court set aside the appellants acquittal and
    ordered a new trial:
R. v. Jageshur

(2002), 169 C.C.C. (3d) 225.
    Doherty J.A., writing for this court, concluded that although the initial offer
    to sell cocaine to the appellant had not been approved in accordance with RCMP
    policy, both the offer and subsequent sale of cocaine were nonetheless exempt from
    the prohibition on trafficking in the CDSA, and were not therefore illegal.

[5]

Prior to the Crowns appeal being heard, the appellant
    breached his bail on a pending fraud charge, left the country
and began
    living in Florida under an assumed name. While in Florida, he pleaded guilty to
    manslaughter. After serving his sentence he was deported to Canada where he was
    re-arrested for this offence on December 26, 2012.

[6]

The appellants second trial on the possession for the purpose of
    trafficking charge began in February 2014. Prior to arraignment, the appellant
    brought applications to stay the proceedings under ss. 7 and 11(b) of the
Charter
.
    Concerning the s. 7 application, he argued that the lead investigator, RCMP
    Constable Kevin Burk, deliberately misled his superiors to gain approval for
    the reverse sting and also delayed disclosure of important documents for
    several years to undermine the defence. The appellant claimed that these
    actions constituted an abuse of process.

[7]

The trial judge dismissed the appellants applications. In relation to
    the s. 7 application, he found that Burk did not mislead his superiors; that he
    did not deliberately withhold disclosure; and that, while Burk may have
    instructed undercover officers to make an offer to sell drugs to the appellant
    prior to receiving authorization for the reverse sting, Burk acted under the
    reasonable belief that he had permission to do so.

[8]

The trial judge convicted the appellant of possession of cocaine for the
    purpose of trafficking based on an agreed statement of facts and sentenced him
    to 13 years' imprisonment less 26 months credit for pre-sentence custody, for
    a total of 10 years 10 months imprisonment.

[9]

Applying s. 743.6(1) of the
Criminal Code
, the trial judge also
    ordered that the appellants parole eligibility be delayed until the appellant
    has served one-half of his sentence.

[10]

The
    appellant appeals from his conviction and seeks leave to appeal sentence. For
    the reasons that follow, I would dismiss the
conviction
    appeal, grant leave to appeal sentence, but dismiss the sentence appeal.

B.

The Conviction Appeal

[11]

Prior
    to the appeal hearing the appellant abandoned his ground of appeal asserting
    that the trial judge erred in dismissing his s. 11(b) application. Accordingly,
    the sole issue raised on the conviction appeal is whether the trial judge erred
    in rejecting the appellant's application for a stay of proceedings based on
    abuse of process. In this regard, the appellant asserts that the trial judge
    materially misapprehended the evidence in five discrete ways. I will address
    each of the alleged misapprehensions in turn. Before doing so, I will briefly
    review the legislative and factual background of this matter.

(1)

Background

(a)

Legislative and internal policy requirements relating to a reverse sting

[12]

Regulations enacted under the CDSA on May 14, 1997
[1]
made reverse sting operations legal provided the selling police officer is
    acting in accordance with his duties and has been issued a certificate of
    exemption.

[13]

Under
    the CDSA regulations, it is legal for a police officer acting in the course of
    his duties to offer to sell drugs without a certificate of exemption. However,
    an RCMP policy statement issued by Rene Charbonneau, Acting Director of the
    RCMPs Federal Services Directorate (the Charbonneau telex) circulated soon
    after the regulations were made stipulated that reverse undercover operations
    will not become common practice and that they would only be approved by the
    Director of Federal Services in
exceptional
    circumstances
 (emphasis in the original).

[14]

To
    obtain approval for a reverse sting, RCMP internal policy requires that an
    officer submit a detailed operational plan to his or her immediate supervisor
    who must, in turn, seek approval from the unit commander. If approved, the plan
    is submitted to divisional headquarters for review (in Ontario, divisional
    headquarters is in London (London)). If approved on review, the plan goes to
    Headquarters in Ottawa (Ottawa) for further review.

[15]

Accordingly,
    as summarized by the trial judge, before an RCMP officer may proceed with a
    reverse sting, he must have the approval of his immediate supervisor, his unit
    commander, London and Ottawa.

(b)

Events leading up to the reverse sting as found by the trial judge

[16]

At
    all relevant times, Burk was a member of the RCMPs Toronto Integrated Proceeds
    of Crime Unit (IPOC), which was responsible for investigating and seizing
    proceeds of crime. In April 1996, members of the RCMP Milton drug squad (Milton
    Drugs) advised IPOC that the appellant was importing cocaine into Canada from
    South America. The appellant thus became a target of a joint investigation by
    both units.

[17]

The
    appellant sold one kilogram of cocaine to a police agent in November 1996
for $34,000
. He was not arrested at that time. Burk believed
    that the appellant was a large-scale cocaine dealer and that he may have had
    access to approximately $800,000 from a recent armoured car robbery.

[18]

Between
    December 1996 and March 1997, the appellant offered to sell 10 kilograms of
    cocaine to an undercover officer and also expressed an interest in buying
    various quantities of cocaine (10, 25 and 50 kilograms respectively) from
    undercover officers. None of these offers were acted upon.

[19]

In
    April 1997, Burk and his immediate supervisor decided this might be an
    appropriate case for a reverse sting. On May 16, 1997, Burk requested the RCMP Milton
    Airport Detachment to hold 100 kilograms of cocaine seized at Pearson Airport
    for that purpose.

[20]

On
    May 26, 1997, with the approval of his supervisor and unit commander, Burk sent
    an operational plan for a reverse sting to London divisional headquarters. In
    the operational plan, Burk stated, Understand that no offer has been made and
    will not be made without authority of an approved Operational Plan and issuance
    of a Certificate of Exemption.

[21]

On
    June 3, 1997, Burk obtained advice from a federal Department of Justice lawyer that
    it would not be illegal for an officer to enter into negotiations to sell
    cocaine without an exemption certificate. He also asked an Ottawa RCMP officer
    about the same issue. The officer said he would have to get back to him.

[22]

On
    June 5, 1997, Burk received a fax from London divisional headquarters attaching
    a copy of the Charbonneau telex and advising that his plan could not be supported
    at this time as [it] [did] not fall within the exceptional circumstances set
    out in [the Charbonneau telex].

[23]

Later
    the same day, Burk contacted the London reviewer, Corporal Brian Higgins, and
    learned that his plan had not been approved for three main reasons:

·

Burk had not attempted to obtain a wiretap authorization;

·

Milton Drugs recommended a controlled delivery; and

·

there was no convincing evidence that the appellant actually was
    a multi-kilo dealer.

Higgins also indicated that the investigation should
    proceed using conventional investigative methods.

[24]

According
    to Burk, he had various subsequent conversations with Higgins that led him to
    believe Higgins would reconsider his plan in certain circumstances  which
    included the appellant providing a down payment for a large cocaine purchase.
    Burk testified that he therefore understood that he had tacit permission to
    have his undercover officers make an offer to the appellant.

[25]

On
    June 18, 1997, officers from Milton Drugs submitted a request to Ottawa to have
    30 kilograms of cocaine held for the proposed reverse sting. Chief
    Superintendent Al Hutchinson, then Acting Director of Federal Services,
    approved the request the next day. Burk testified he did not see this request
    and did not learn until later what amount, if any, had been requested.

[26]

Between
    June 5 and July 15, 1997, Burk formulated a plan whereby an undercover officer
    would offer the appellant an opportunity to buy cocaine, but let the appellant
    choose the amount. He mentioned the proposed offer in an updated plan submitted
    to London on July 17, 1997. On July 18, 1997, Burk instructed RCMP officer
    Fournier to make an offer to sell cocaine to the appellant.

[27]

Fournier met the appellant later in the day on July 18, 1997 and
    offered to sell him cocaine. According to Fournier, he told the appellant that the
    price would depend on the amount the appellant purchased ($34,000 to $35,000
    per kilogram for a smaller quantity,
$31,000 to
    $32,000 for a larger quantity) and that if he ordered more than 30 kilograms,
    he would have to pay half the purchase price "up-front". The
    appellant was interested but wanted to think about it. According to Fournier, during
    the course of the conversation, the appellant indicated that he was sitting on 25
    kilograms of cocaine he had imported from Miami.

[28]

The
    appellant telephoned Fournier on July 21, 1997. The men agreed on a price of
    $28,000 per kilogram. Fournier testified that the appellant initially said he
    wanted to purchase 25 to 30, but could not pay everything up-front. Fournier
    asked for a specific number. The appellant said he wanted to buy 30 kilograms
    but could only pay for 18 up-front. He asked Fournier to hold the other 12
    kilograms until the following week. Fournier agreed and asked for a $50,000
    deposit. This was later adjusted to $80,000 because the appellant wanted a
    total of 30 kilograms.

[29]

On
    July 22, 1997, Burks unit commander faxed London and requested that the
    previously submitted operational plan dated May 26, 1997 be reviewed and
    submitted to Ottawa for approval of a reverse sting. In a report dated July 22,
    1997, which accompanied this fax, Burk mentioned that the May 26, 1997 plan was
    declined. The July 22, 1997 request was approved and exemption certificates were
    issued on August 7, 1997.

[30]

The
    appellant paid the deposit on August 8, 1997. On August 20, 1997, he met with
    one of the undercover officers and said to him, in relation to protecting the
    cocaine, any cop pulling me over, hes getting fucking blasted before I open
    my trunk.

[31]

The
    appellant paid the balance of the funds, obtained the 18 kilograms of cocaine
    and was arrested on August 21, 1997. Police found a loaded Glock handgun in his
    car.

(2)

The appellants
    abuse of process argument at the re-trial

[32]

At
    the re-trial, the appellant sought a stay of proceedings based on abuse of
    process. He argued that Burk misled his superiors to gain approval for the
    reverse sting in the following ways:

·

by telling his superiors that other, more conventional, methods
    of investigation had been tried and failed, or would be futile, when he knew
    that was not the case;

·

by instructing Fournier to offer to sell drugs to the appellant when
    he knew he did not have permission to do so;

·

by instructing Fournier to encourage the appellant to buy 30
    kilograms of cocaine to make the appellant appear to be a major dealer; and

·

by claiming that time was of the essence in pursuing the plan
    because of pending disclosure in a separate criminal proceeding in Newmarket,
    when he knew no such urgency existed.

[33]

The
    appellant also argued that, to undermine the defence, Burk intentionally failed
    to disclose documents that would have demonstrated that the original plan had
    not been approved.

(3)

The trial
    judges reasons

[34]

The
    trial judge rejected the appellant's arguments and dismissed the abuse of
    process application. He found that Burk did not mislead his superiors on the
    issue of other investigative methods; that while Burk may have instructed
    undercover officers to make an offer to sell drugs to the appellant prior to
    receiving authorization for the reverse sting, Burk acted under the reasonable
    belief that he had permission to do so; that the police did not suggest the
    amount of cocaine the appellant should purchase; that Burk did not mislead his
    superiors concerning the urgency of the project; and that he did not deliberately
    withhold disclosure.

(4)

Discussion

[35]

On
    appeal, the appellant asserts that, in reaching his conclusions, the trial
    judge materially misapprehended the evidence in five discrete ways.

[36]

I
    will address each of the alleged misapprehensions in turn.

(i)

Alleged misapprehension no. 1  whether other options were exhausted or
    futile

[37]

The
    trial judge found that Burk did not mislead his superiors in asserting in his
    May 26, 1997 operational plans and subsequent updates to it that all other
    options for pursuing the appellant had been exhausted or were likely futile.

[38]

The
    appellant argues that in making this finding the trial judge ignored the fact
    that Burk had been instructed to pursue conventional methods of investigation
    after his first operational plan was refused. Further, the appellant asserts
    that the trial judge also ignored the evidence of the London officer who
    reviewed the July 22, 1997 operational plan, Sergeant Rick Roy, that had he
    known that as of July 18, 1997 the appellant had 25 kilograms of cocaine to
    sell,
[2]
he would have recommended that the officers attempt to obtain that cocaine through
    a controlled delivery rather than engaging in a reverse sting. Finally, the
    appellant asserts that the trial judge ignored Burks stated willingness to
    assist Milton Drugs in attempting a 10 kilogram purchase if the appellant did
    not want to purchase cocaine.

[39]

I
    would not accept these submissions. In rejecting the appellants argument, the
    trial judge relied on the fact that Burk was a member of IPOC, which was
    responsible for investigating and seizing proceeds of crime. The trial judge
    stated,

The other methods requirement was meant to ensure that,
when investigating a crime within their mandate
, the
    [undercover officers] would first explore all other reasonable investigative
    options before resorting to what internal RCMP policy dictated was an investigative
    techniques reserved for exceptional circumstances. [Emphasis in the original].

[40]

The
    trial judge concluded that, for proceeds of crime investigators, this meant
    that they should exhaust all other reasonable means by which they might learn
    of and, in turn, seize any proceeds of crime they believed a suspect might
    possess. It did not mean that investigators were required to investigate the
    appellant for a crime just because the opportunity presented itself.

[41]

For
    these conclusions, the trial judge relied on evidence from Chief Superintendent
    Hutchison, the senior officer who approved the reverse sting. As Hutchison was
    Roys superior, I see no error in the trial judge doing so.

(ii)

Alleged misapprehension no. 2  whether Burk reasonably thought he had
    permission to make an offer  Roy was firm in his evidence that what Fournier
    had done was engage in preliminary negotiations

[42]

Second,
    the appellant argues that to support his conclusion that Burk reasonably
    thought he had permission to make an offer the trial judge erroneously relied
    on a finding that Roy was firm in his testimony that what Fournier had done was
    engage in preliminary negotiations falling short of an offer.

[43]

The
    trial judges specific finding in this regard appears at para. 169 of his
    reasons and reads as follows:

Despite [defence counsels] attempts to have Roy accept that
    Burk had overstepped what he understood from Higgins to be his limited scope in
    this behalf,
Roy was firm
that what Fournier had
    done was engage in preliminary negotiations falling short of an offer. Albeit
    Burk ultimately did authorize Fournier to offer to sell drugs to [the
    appellant], to my mind Roys insistence that what Fournier had initially done
    did not even amount to an offer, just underscores how Burk might reasonably
    have thought that he had tacit permission to do what he did. [Emphasis added].

[44]

The
    appellant argues that in so holding the trial judge ignored Roy's
    cross-examination.

[45]

According
    to the appellant, the portion of Roy's testimony on which the trial judge relied
    to reach his conclusion that Roy was firm was premised on a misunderstanding
    of what Fournier had actually done. The appellant says that when the true
    sequence of events concerning the agreement between Fournier and the appellant
    was put to Roy in cross-examination  namely that on July 21, 1997 the
    appellant agreed to purchase 30 kilograms of cocaine (18 immediately and the
    balance within a short time after he had the rest of the money), and that the
    appellant would pay a $50,000 deposit - Roy not only agreed that he would have
    concluded that Burk had initiated a reverse sting without prior approval, he
    also indicated that his branch would likely not have approved the plan for a
    reverse sting.

[46]

I
    would not accept this argument. As a starting point, the impugned finding is
    but one of several reasons articulated by the trial judge for accepting that
    Burk believed he had tacit approval to make an offer. In any event, however, in
    re-examination Roy confirmed that what the appellant says was the true sequence
    of events was contained in the July 22, 1997 operational plan that he approved.
    Roy also stated:

Again, I draw upon the analogy of a car dealer and a
    prospective purchaser, and they agree on a number of things, but until the
    purchaser comes in with a down payment or some tangible means to substantiate
    his purchase, then I didnt perceive that to be an offer agreement, and neither
    did the officer in charge of economic crime or the Criminal Operations Officer.

[47]

In
    my view, the trial judge was entitled to come to the conclusion that he did
    based on the record before him.

(iii)

Alleged misapprehension no. 3  whether Burk reasonably thought he had
    permission to make an offer  the idea for the down payment

[48]

While
    Burk testified that he thought, based on his discussions with Higgins, that he
    had implicit authority to have the undercover officers sell drugs to the
    appellant as long as the appellant made a down payment on a large purchase of
    drugs, Higgins evidence was that he knew Ottawa had to authorize an offer and
    he would never have said anything to lead a subordinate to believe that he
    could make an offer without Ottawas approval.

[49]

The
    trial judge said that although he believed Higgins was endeavouring to be
    truthful, where Higgins evidence differed from that of Burk, he placed little
    weight on Higgins evidence because he had almost no present memory of these
    events. And while the trial judge accepted that Higgins would not have intentionally
    led Burk to believe he could make an offer without approval, the trial judge found
    that Higgins said things, albeit unwittingly, that caused Burk to honestly
    believe he had permission to have the undercover officers offer to sell
    cocaine to the appellant.

[50]

Among
    other things, in reaching his conclusion, the trial judge referred to Roys
    evidence that the idea for the down payment may have come from Higgins. At
    para. 168 of his reasons, the trial judge said:

I find support for Burks belief in the evidence of Rick Roy.
    Roy made plain that the notion of permission possibly being forthcoming if [the
    appellant] made a down payment was not his idea; rather, in Roys words it was
    initiated by the operator
or perhaps Corporal Higgins
.

    [Emphasis added by the trial judge].

[51]

The
    appellant argues that Roy's speculation was not a reasonable basis to refute
    Higgins' testimony.

[52]

I
    would not accept this submission. Immediately following the impugned statement,
    the trial judge acknowledged that Roy did not know that the idea for the down payment
    came from Higgins. However, what was significant in his view, was the fact the
    Roy considered it possible that the idea could have emanated, whether directly
    or indirectly, from Higgins. In the context of Roys position as Higgins
    superior, this fact alone was significant when considered in the light of
    Higgins perception of what he may have said. In this regard, the trial judge
    said:

While I appreciate that Roys evidence in this behalf is
    somewhat speculative, it is no more so, in my view, than Higgins assertion
    (made almost 17 years after the fact on the basis of virtually no present
    memory of these events) that he never said anything from which Burk might
    reasonably have understood he had tacit permission to open negotiations.
    Against the backdrop of the ongoing discussions after June 4, the fact Roy
    seemed to think the idea might have come from Higgins tends to refute Higgins
    flat denial of having said anything that could have caused Burk to believe he
    could have his [undercover officers] make an offer.

[53]

In
    my view, the trial judges conclusion was entirely open to him on the record. Reading
    his reasons fairly, he used Roys evidence not to speculate about the actual
    content of what Higgins may have said, but rather to assist him in evaluating
    the realities of the context of the discussions between Higgins and Burk, and
    whether Higgins could reasonably assert, so many years later, that he would
    never have said anything that could have caused Burk to believe he had permission
    to have Fournier make an offer to the appellant. As an officer in the same unit
    as Higgins, and as Higgins superior, Roy was in a position to understand the
    realities of that context.


(iv)

Alleged misapprehension no. 4  whether the police suggested the amount
    of cocaine to be purchased  Fourniers evidence that if the appellant ordered
    more than 30 kilograms of cocaine, he would have to pay half the purchase price
    "up-front"

[54]

In his evidence on the s. 7 application, the appellant asserted that it
    was Fournier who suggested the amount of cocaine he should buy  30 kilograms 
    which also happened to be the amount of cocaine the RCMP had on hand.

[55]

The
    appellant argued that Burk thought the appellant had access to $800,000 from
    the armoured car robbery and wanted to recover it as well as the proceeds of
    the 1996 one kilogram sale of cocaine to a police agent. Burk could only do
    that through a reverse sting and could only get approval for a reverse sting if
    he could show the appellant was a major drug dealer. The appellant claimed that
    Burk instructed Fournier to offer to sell him (the appellant) 30 kilograms of
    cocaine so it would appear the appellant was a major drug dealer and would thus
    qualify under the exceptional circumstances criterion in the Charbonneau telex.
    The appellant contended that Burk intentionally misled his superiors into
    thinking that it was the appellant who came up with the 30 kilogram amount
    (which also happened to produce a purchase price approximately equal to the
    amount of money Burk believed the appellant could access from the armoured car
    robbery and the one kilogram sale).

[56]

In
    particular, in his affidavit filed on the s. 7 application, the appellant
    claimed that Fournier told him some guys  backed out of a planned transaction;
    [t]hey had 30 kilograms leftover that they needed to unload; and [h]e wanted
    me to take the 30 kilograms of cocaine.

[57]

Although
    Fournier acknowledged telling the appellant someone had backed out of a deal,
    Fournier denied offering to sell the appellant any particular amount of
    cocaine, denied that he had been instructed to talk the appellant up to any
    particular amount and also denied that he knew how much cocaine was available
    to sell. He testified that it was the appellant who came up with the number 30
    kilograms.

[58]

On
    Fourniers version of events, on July 18, 1997, he offered to sell cocaine to
    the appellant, told him the price would depend on the amount he purchased and
    that, if he bought more than 30 kilograms, he would have to pay 50 percent
    up-front. According to Fournier, when the appellant called him back on July 21,
    1997, he told the appellant the price per kilogram had dropped and that there
    was no longer a requirement for 50 percent up front prior to delivery. After
    stating initially he was interested in 25 to 30, the appellant then specified
    30 kilograms.

[59]

At
    paras. 201 and 202 of his reasons, the trial judge rejected the appellants
    assertion that Fournier offered to sell him 30 kilograms of cocaine on July 18,
    1997 and accepted Fourniers evidence that the appellant came up with that
    number on July 21, 1997 when he indicated at first he was interested in 25 to
    30 and then settled on 30.

[60]

The
    appellant argues that the trial judge materially misapprehended the evidence by
    concluding that it was the appellant, as opposed to Fournier, who first
    mentioned the amount of 30 kilograms of cocaine during the negotiations. He
    points, in particular, to para. 233 of the trial judges reasons, where the
    trial judge indicated it was not surprising Fournier stipulated 30 kilograms as
    the amount above which he would require a 50 per cent deposit given that the
    appellant had said he wanted 30 kilograms:

on Fourniers evidence, which I accept, the number 30 was
    first injected into the discussion by [the appellant], when he indicated that he
    wanted 25 to 30, and then subsequently specified 30. Against that backdrop, I
    do not find it particularly surprising that Fournier chose 30 kilograms as the
    amount above which he would insist that [the appellant] provide a 50% down payment
    ahead of delivery.

[61]

According
    to the appellant, this misapprehension is significant because Burk had
    represented to his superiors in his July 22, 1997 operational plan that the
    amount of cocaine available would not be disclosed to the appellant.

[62]

The
    appellant also argues that the misapprehension affected the trial judges view
    of both Fourniers and Burks credibility. Both denied knowing that the RCMP
    had 30 kilograms of cocaine available to sell to the appellant. Had the trial
    judge not misapprehended the evidence and found instead that it was Fournier
    who first mentioned the number 30 kilograms, this would have undermined the
    officers credibility.

[63]

I
    would not accept this argument. To the extent that the trial judge was
    asserting, at para. 233 of his reasons, that Fournier told the appellant he
    would have to pay 50 percent up-front if he (the appellant) purchased more than
    30 kilograms of cocaine
after
the appellant specified how much he
    wanted to purchase, I agree that the trial judge misstated the evidence. I am not,
    however, persuaded that this misstatement constitutes a material
    misapprehension of the evidence.

[64]

On
    the conflicting versions of events, the question of who first mentioned the
    number 30 kilograms was not the issue. Rather, it was who first offered to buy
    or sell 30 kilograms. Considered in context, the fact that Fournier told the
    appellant on July 18, 1997 that he (the appellant) would have to pay 50 percent
    up-front if he bought more than 30 kilograms of cocaine was not central to that
    determination. On the appellants version of events, Fournier offered
to
    sell
him 30 kilograms at the meeting on July 18, 1997. On Fourniers
    version of events, the quantity was determined in the July 21, 1997 telephone
    call and by that time, the up-front payment requirement had been dropped. In
    any event, the mere statement by Fournier that the appellant would have to pay
    50 percent up front if he purchased more than 30 kilograms was unlikely to have
    had any impact on the appellants choice of 30 kilograms.

[65]

The
    trial judge recognized as much at paras. 224 to 226 of his reasons when he
    noted that the appellant acknowledged in his evidence that he did not have to
    purchase any particular amount of cocaine and, for that matter, did not feel he
    had to purchase cocaine at all. At para. 225, in particular, the trial judge
    said the following:

The foregoing exchange  makes plain that, even if Fournier had
    been the one to mention 30 kilograms, which I do not accept, it was never
    suggested that Fournier told the accused that he must buy all 30 kilograms.
That being so, the mere mention of an available amount would
    not have constituted a suggestion as to how much cocaine the accused ought to,
    or must, purchase
, as the case may be. [Emphasis added.]

[66]

The
    appellant did not agree to buy
more than
30 kilograms. It is difficult
    therefore to see how the timing of Fournier mentioning that number could have
    had any impact on the transaction.

[67]

I
    acknowledge, however, that the trial judge made the statements at para. 233 of
    his reasons specifically in the context of considering what was to be made of
    the fact that the appellant chose the number of kilograms that coincided with
    the amount of cocaine the RCMP had available  and, in particular, of
    considering the credibility of Fourniers evidence that he did not know how
    much, if any, cocaine was available.

[68]

In
    my view, it obvious from his reasons, that the trial judge would have reached
    the same conclusion on those specific issues had he not misstated the evidence
    at para. 233. The trial judge gave many reasons for concluding that Burk would
    not have instructed Fournier to suggest a purchase of the exact quantity of
    cocaine that was available. In relation to Fournier specifically, the trial
    judge said that Fournier appeared to be intelligent and like Burk, he was
    alive to the need not to artificially make [the appellant] into a high level
    dealer by suggesting a specific amount to him. The trial judge also said,
    [h]e would also have been aware, it seems to me, that to suggest the exact
    amount that had been stockpiled would invite skepticism.

[69]

Earlier
    in his reasons, the trial judge had explained why he found both Burk and
    Fournier to be credible and reliable witnesses. He had also correctly recited
    Fourniers description of the sequence of events on July 18 and 21, 1997 at
    paras. 33 and 34 of his reasons. I am satisfied that the trial judges
    conclusion concerning whether the police suggested the amount of cocaine the
    appellant should purchase and concerning Fourniers and Burks credibility
    would have been the same if he had not misstated the evidence at para. 233. On
    Fourniers evidence, he did not tell the appellant on July 18, 1997 how much,
    if anything, he would have to pay up-front if he purchased 30 kilograms of
    cocaine or less and by July 21, 1997 the up-front requirement had disappeared.
    Considered in context, Fourniers mere mention of the number 30 had no real
    significance.

(v)

Alleged misapprehension no. 5  whether Burk intentionally delayed or
    withheld disclosure

[70]

On February 26, 1998, defence counsel at the appellants original trial
    wrote to the Crown and requested further disclosure. One of the items requested
    was [t]he request by Cst. Burke [
sic
] on July 22, 1997 for a reverse-sting
    operation.

[71]

Although
    Burks unit commander signed the letter responding to the request, it is
    undisputed that Burk prepared the letter and enclosures. Rather than his July
    22, 1997 report and his unit commanders accompanying fax, Burk provided the
    May 26, 1997 documentation in response to the February 26, 1998 request.

[72]

On
    the s. 7 application, the appellant argued that Burk intentionally failed to
    disclose his July 22, 1997 report and his unit commanders accompanying fax in
    order to cover up the fact that the original May 26, 1997 request for approval
    of a reverse sting had been refused.

[73]

The
    appellant claimed that Burk did this to hide the fact that he instructed
    Fournier to make an offer to sell cocaine to the appellant when he knew he did
    not have approval to do so. The appellant also asserted that Burk believed, at
    the time of the cover-up, that the appellant was considering pleading guilty
    and did not want to derail that possibility by giving the appellant the hope of
    a technical defence. And having withheld disclosure, Burk did not want his
    failure to disclose to come to light.

[74]

The
    trial judge rejected the appellants argument and accepted Burks evidence that
    his failure to disclose was inadvertent.

[75]

Among
    other things, the trial judge noted that a July 14, 1997 report revealed the
    prior refusal and that it had not been explored in evidence when that report
    was disclosed. However, because no complaint had been made in relation to
    disclosure of the July 14, 1997 report, he assumed it had been disclosed in a
    timely fashion. Therefore, he fail[ed] to see how the defence could have been
    misled by not having Burks July 22, 1997 report and his unit commanders
    accompanying fax.

[76]

The
    trial judge also relied on the fact that, while defence counsel at the original
    trial asked specifically for the July 22, 1997 request for approval of a
    reverse sting, counsel did nothing to follow up when that material was not
    forthcoming and instead, counsel received the May 26, 1997 request for approval
    of a reverse sting. The trial judge concluded that, given that defence counsel
    at the first trial was aware of the July 22, 1997 request, it must have been
    obvious that the earlier May 26, 1997 request had not been approved. After all,
    if the May 26, 1997 request had been approved, there would have been no need to
    seek approval once again six weeks later.

[77]

Further,
    the trial judge concluded that, given that this was the first reverse sting
    conducted under the CDSA regulations, and given that his was not the only copy
    of the July 22, 1997 material, it was unrealistic to think that Burk could have
    believed he could successfully withhold disclosure.

[78]

In
    any event, the trial judge was unconvinced that the July 22, 1997 request was
    any form of silver bullet for the defence that Burk would intentionally
    withhold  having regard to the fact that Ottawa approved the reverse sting
    knowing full well that Fournier made an offer to the appellant before the
    reverse sting was approved.

[79]

On
    appeal, the appellant submits that the trial judges finding that defence
    counsel knew or ought to have known about the initial refusal to approve the
    plan runs counter to an agreed statement of facts filed at trial. He also
    argues that in finding that Burk did not intentionally withhold disclosure of
    documents relating to the July 22, 1997 request, the trial judge ignored the
    critical nature of the documents at issue and placed an unfair onus on defence
    counsel to have recognized the omission.

[80]

I
    agree that the trial judges inference that the defence must have received the
    July 14, 1997 report that disclosed the prior refusal runs counter to the
    agreed statement of facts filed at trial. Paragraph 2 of the Statement of Facts
    and Admissions stipulates:

The disclosure of the documentation revealing the fact of and
    sequence of events surrounding the initial disapproval and ultimate approval of
    Kevin Burks request for a reverse sting operation was not disclosed to the
    defence until at least June 27, 2000, and by the latest some time before August
    15, 2000.

[81]

I
    also have some reservations about the finding that it must have been obvious
    from the fact of the May 26, 1997 request for a reverse sting and defence
    counsels knowledge of the July 22, 1997 request that the first request was
    denied.

[82]

On
    appeal, the appellant relied on an excerpt from an Information to Obtain sworn
    by Burk that may have alerted defence counsel at the original trial to the
    existence of the July 22, 1997 request. That excerpt states, in part, [o]n
    July 22nd, 1997 I submitted a request  to have authorization to complete a Reverse
    Sting  and does not reveal the date of the request that was submitted.

[83]

The
    appellant argues that it must have been this excerpt that led defence counsel
    at the original trial to seek disclosure of the July 22, 1997 request and that,
    upon receipt of the May 26, 1997 request, defence counsel would reasonably have
    assumed that was the request referred to in the Information to Obtain.

[84]

However,
    defence counsel at the original trial did not provide evidence on the s. 7
    application at the retrial. In these circumstances, in my view, the trial
    judges findings concerning what defence counsel might have done were open to
    him on the record.

[85]

In
    any event, however, I see no basis on which to interfere with the trial judges
    acceptance of Burks evidence that his failure to disclose was inadvertent.
    Whether defence counsel could or should have done something more to follow up
    does not impact on Burks credibility. In my view, the appellant failed to
    demonstrate any error in the trial judges assessment of the significance of
    the July 22, 1997 request. The trial judge found that Burk was a credible witness.
    On the record before him, he was entitled to accept that Burks failure to
    disclose was inadvertent.

[86]

I would therefore dismiss the conviction appeal.

C.

The Sentence Appeal

[87]

As noted in the introduction, the trial judge
    sentenced the appellant to 13 years' imprisonment less 26 months credit for
    pre-sentence custody for a total of 10 years 10 months imprisonment. The trial
    judge also ordered that the appellants parole eligibility be delayed until the
    appellant has served one-half of his sentence.

[88]

In arriving at his sentencing decision, the
    trial judge noted several aggravating factors: the pernicious nature of
    cocaine; the quantity of cocaine (18 kilograms plus an agreement to purchase a
    further 12 kilograms); the fact that the crime was driven by greed; the fact
    that the appellant was armed with a loaded firearm when he committed the
    offence; and the fact that the appellant had indicated that he was prepared to
    use the gun if he was stopped by a police officer while in possession of the
    cocaine.

[89]

The only real mitigating factor present was the
    fact that the appellant had been a model prisoner while detained.

[90]

As for the delayed parole eligibility, the trial
    judge found that the length of the jail term would not satisfy the imperatives
    of denunciation and deterrence for three reasons. First, the appellant was
    prepared to use the handgun if stopped by a police officer while in possession
    of the cocaine. Second, the appellants Florida conviction demonstrated that he
    was obviously not deterred by the sentence he received for possession of a weapon
    for a purpose dangerous to the public peace in 2000. Third, taking account of
    all the circumstances of the case, a sentence that did not require the
    appellant to serve half of it before being eligible for parole would not
    adequately serve the principles of general deterrence and denunciation.

[91]

In oral argument, the appellant abandoned two of
    his proposed grounds for seeking leave to appeal sentence. In the result, the
    appellant advanced the following grounds for seeking leave to appeal:

·

the trial judge relied inappropriately on a
    finding that the appellant was deadly earnest in his threat to blast a
    police officer if stopped while in possession of the cocaine as an aggravating
    factor, when that was not the only inference arising from the circumstantial
    evidence relating to this issue and when the appellant had already been
    sentenced for possession of a weapon for a purpose dangerous to the public
    peace in 2000;

·

the trial judge relied inappropriately on the appellants
    Florida conviction to hold that the appellant was undeterred by his original
    sentence, given that those events would not have arisen had the appellant been
    sentenced for all offences at the same time in 2000;

·

the trial judge erred in failing to give proper
    effect to the principle of totality taking account of the total sentence
    imposed for the three offences arising out of this one police project; and

·

the trial judges reliance on the fact that the
    appellant was deadly earnest in his threat to blast a police officer was
    unreasonable and no other circumstances justified the increase in the length of
    sentence the appellant must serve before becoming eligible for parole.

[92]

I would not accept these submissions. The
    appellant contends that the only evidence that the appellant was deadly
    earnest in his claim that he would use his gun if stopped by the police was
    the evidence of his conversations with the undercover officer and that those
    conversations were equally consistent with macho puffery and do not justify a
    finding on a beyond a reasonable doubt standard. Moreover, as the appellant had
    already pleaded guilty to possession of a weapon for a purpose dangerous to the
    public peace and been sentenced for possession of a loaded handgun when he was
    arrested on August 21, 1997, the trial judge erred in taking account of that
    fact as an aggravating factor in relation to the possession of cocaine for the
    purpose of trafficking offence.

[93]

I disagree. Undercover officers unloaded the
    appellants handgun when they met him initially on August 21, 1997. Yet, when
    the appellant was later arrested after picking up the cocaine, his handgun had
    been reloaded. In the light of this circumstance, the trial judge was fully
    justified in finding that the appellant was deadly earnest in the threats he
    had made.

[94]

Moreover, I see nothing improper in the trial
    judge listing the loaded handgun as an aggravating factor on the possession for
    the purpose of trafficking charge even though the appellant had previously been
    sentenced for possession of a weapon for a purpose dangerous to the public
    peace in connection with possession of the loaded handgun. Whether the
    appellant had previously been sentenced for possession of a weapon for a
    purpose dangerous to the public peace, possession of a loaded handgun was an
    aggravating feature of the possession for the purpose of trafficking charge.
    The important question is whether the sentences imposed are demonstrably unfit.
    Taking account of all the circumstances, I am not convinced that a total
    sentence of 16 years 6 months imprisonment for the three offences meets the
    threshold of demonstrably unfit.

[95]

Nor do I think the trial judge erred in failing
    to apply the totality principle. In this case, the prior sentence was served
    (November 2000) more than 13 and a half years before the new sentence was
    imposed (May 2014). Considered in that context, the sentences imposed  42
    months based on pre-sentence custody of 21 months in 2000 and 10 years and 10
    months taking account of pre-sentence custody in 2014  can hardly be viewed as
    potentially crushing.

[96]

Finally, I am not persuaded that the trial judge
    made any error in his discretionary decision concerning parole eligibility.

[97]

Accordingly, I would grant leave to appeal
    sentence but dismiss the sentence appeal.

D.

Disposition

[98]

Based on the foregoing reasons, I would dismiss the
    conviction appeal, grant leave to appeal sentence, but dismiss the sentence
    appeal.

Released:

KMVR                                              Janet
    Simmons J.A.

JAN 11 2017                                    I agree K.
    van Rensburg J.A.

I
    agree B.W. Miller J.A.





[1]

CDSA (Police Enforcement) Regulations
, S.O.R./97-234.



[2]
Burk acknowledged in his evidence that he knew the appellant claimed that he
    had 25 kilograms of cocaine.


