



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Budimirovic, 2019 ONCA 65

DATE: 20190129

DOCKET: C61797

Rouleau, Pepall and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexsander Budimirovic

Appellant

Anil K. Kapoor and Dana C. Achtemichuk, for the
    appellant

Tanit Gillian and Kelvin Ramchand, for the respondent

Heard: November 29, 2018

On appeal from the conviction entered on February 12,
    2016 by Justice Robert E. Charney of the Superior Court of Justice, sitting
    with a jury.

Rouleau J.A.:

OVERVIEW

[1]

The appellant was apprehended while attempting to facilitate a drug
    transaction with an undercover officer. Upon arrest, the appellant immediately
    claimed to be working with the police. Officers did not locate any drugs on the
    appellants person, but they found heroin and marijuana inside the vehicle in
    which he had arrived at the scene. The appellant was charged with i)
    trafficking, ii) possession for the purpose of trafficking, and iii) breach of
    recognizance.

[2]

At trial, the appellant maintained that he had been acting as a police
    agent under the direction and control of a detective whose name he could not
    remember. He brought a third-party disclosure application to obtain police
    records that, in addition to those that had been disclosed to him, might
    corroborate his version of events. The trial judge dismissed the application,
    finding that the records sought were not likely relevant to the proceedings. The
    trial judge also found that the appellants actions had been the result of his
    own planning and initiative. He ruled that the appellants police agent defence
    lacked an air of reality and refused to put it to the jury.

[3]

On appeal, the appellant argues that the trial judge erred with respect
    to the third-party records application and the air of reality finding. He also
    contends that the jury charge was inadequate and that the Crowns closing
    submissions were improper.

[4]

For the reasons that follow, I would dismiss the appeal.

FACTS

[5]

On November 25, 2009, Detective Constable Salhia of the York Regional
    Police Service, acting undercover, contacted the appellant inquiring about
    buying drugs. He indicated he wanted samples before purchasing a larger amount.
    After some back and forth, they settled on a deal for two ounces of heroin for
    $4,500 to be effected at a LCBO parking lot in Markham.

[6]

The appellant arrived at the agreed upon location in a red pickup truck,
    accompanied by two friends, Mr. Christie and Mr. Davolio. When the appellant
    reached officer Salhias car, he asked to get in. The officer was hesitant and
    it was at this point that other officers appeared and arrested the appellant.

[7]

The
    appellant immediately claimed that he was working with 52 Division. No drugs
    were found on the appellants person, but in the pickup truck police found a
    package containing seven grams of heroin and 0.2 grams of marijuana. Two
    additional packages were found under the seat, each containing approximately
    one ounce of heroin.

[8]

The defence
    sought to be advanced at trial was that the appellant arranged and was carrying
    out the drug deal as an agent of the police. Pursuant to Regulations SOR/97-234
    of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19
(
CDSA
), he was protected
    from prosecution. In the course of a
voir dire
and again later at
    trial, the appellant explained that his drug addiction had brought him into
    frequent contact with the police. Over time, he became a police informant and
    ultimately a police agent. Three incidents were said to be noteworthy: 1) a
    September 29, 2008 arrest for theft of a bicycle involving the Toronto Police
    Service (TPS); 2) a June 7, 2009 arrest for possession of OxyContin involving
    the Durham Regional Police Service (DRPS); and 3) an October 13, 2009 arrest
    for shoplifting involving the TPS.

[9]

As for the first two incidents, the bicycle and OxyContin arrests, the
    appellant contended that he provided information to police as a confidential
    informant. With respect to the third arrest, for shoplifting, the appellant explained
    that after he offered to provide information about drugs and guns, the
    arresting officer arranged to have a detective, whose name he could not recall
    at trial, speak to him. The unnamed detective met with the appellant and
    released him on condition that he later provide him with either drugs or guns
    and report back every Friday.

[10]

For
    the following few weeks, the appellant attended the police station weekly. The
    detective was not there the first week. However, on one of the following
    Fridays when the detective was there, they met in the locker room and the
    detective clearly gave the appellant the impression that there would be
    consequences if he failed to produce results.

[11]

Sometime
    after this exchange, the appellant went to meet his dealer/ex-girlfriend at her
    house. His friend and roommate Mr. Davolio drove there with him. When the
    appellant went into his ex-girlfriends house, Mr. Davolio waited outside with
    his dog. When the appellant exited the house, Mr. Davolio told him that, while
    he was waiting he took his dog for a walk. By chance, the dog sniffed out a
    large bag of drugs. Mr. Davolio took the drugs and suggested to the appellant
    that they could be used as a patch for the detective.

[12]

The
    following Friday, the appellant mentioned to the detective that he had two to three
    ounces of heroin for him. The detective responded that he wanted the people that
    come with the drugs and the guns. This, the appellant testified, was a change
    in the deal that he had made with the detective.

[13]

Three
    days later, the appellant went to a methadone clinic with Mr. Davolio. Mr. Davolio
    informed him that he had found a buyer there for the drugs and that the
    potential buyer would be calling the next day. A sale could be set up. The
    following day, November 25, 2009, the phone rang. Mr. Davolio answered then passed
    it to the appellant silently indicating that it was the buyer from the clinic.
    The caller, who identified himself as Sheriff, was Detective Salhia.

[14]

The
    appellant explained that in agreeing to set up and carry out the sale of drugs,
    his role was limited to making sure that the deal was real and that there would
    be a second transaction in which he could involve the police detective. He maintained
    that he never saw the drugs nor did he touch them. He also acknowledged that
    the arrangement and his participation in the drug deal had not been raised or
    discussed with the detective.

[15]

In order to advance his
    defence of acting as a police agent, the appellant brought a pre-trial
OConnor
application for disclosure of all records in the possession of the TPS and DRPS
    relating to any dealings he had with the police:
R. v. OConnor
, [1995]
    4 S.C.R. 411, 130 D.L.R. (4th) 235. This broad request was later limited to the
    disclosure of the police records relating to the three incidents noted
    previously: the bicycle incident, the OxyContin incident and the shoplifting
    incident.

[16]

The
    appellant acknowledged that he had received disclosure from the Crown,
    including a number of occurrence reports detailing prior interactions between
    himself and the police. He argued, however, that a search of police records might
    unearth records that would be relevant to his anticipated defence of having
    acted throughout the drug transaction with Officer Salhia as a police agent.

[17]

The
    regulation relating to that defence is as follows:

4
A person is exempt from the application of
    section 5, 6 or 7 of the Act, as applicable, where the person engages or
    attempts to engage in conduct referred to in any of those sections that
    involves a substance, other than a substance referred to in any of subsections
    8(1), 11(1) and 13(1) of these Regulations, of which the person has come into
    possession, if the person

(a)
acts under the
    direction and control of a member of a police force who meets the conditions
    set out in paragraphs 3(a) and (b); and

(b)
acts to assist the member referred to in
    paragraph (a) in the course of the particular investigation.

[18]

The
    Crown, along with counsel for the TPS and DRPS, opposed the
OConnor
application.
OConnor
provides that if a judge finds that the third-party
    records being sought are likely relevant to an issue in the proceedings, he or
    she should inspect them and, having reviewed them, then make a determination as
    to their relevance and whether they should be produced. The Crown and the
    police services argued that the appellant had not even met the likely
    relevant threshold and there was no need for the judge to inspect the records.
    The trial judge agreed.

[19]

Having
    failed to secure the information through the
OConnor
application, the
    appellant then sought to compel the police officers who had been involved in
    the bicycle and shoplifting incidents to testify. The appellant also sought to
    introduce the occurrence report he had in his possession that pertained to the
    shoplifting incident and a statement alleged to have been made by an officer in
    relation to the bicycle theft incident.

[20]

The
    trial judge quashed the subpoenas of the officers and, on the motion to
    introduce hearsay evidence, ruled that the occurrence report and the statement that
    the appellant sought to tender were inadmissible. Evidence relating to the prior
    occurrences was simply not relevant to the issue of whether the appellant was,
    on the date of the arrest, on the present charges, acting as a police agent.

[21]

The
    trial proceeded and the appellant testified in his defence. In pre-charge
    discussions, the appellant asked that the statutory defence of acting as a
    police agent pursuant to the
CDSA
be left with the jury. The trial
    judge refused on the basis that there was no air of reality to that defence. In
    his view, there was no evidence from which a properly instructed jury, acting
    reasonably, could come to the conclusion that, in arranging the sale of the
    heroin, the appellant was acting under the direction and control of the
    detective as required by the regulation. In his evidence, the appellant
    acknowledged that the unnamed detective did not ask him to set up a drug
    transaction. He also confirmed that the unnamed detective was totally unaware
    of the drug transaction set up by the appellant to sell two ounces of heroin to
    Detective Salhia. The appellants actions had, in the trial judges view, been
    the result of his own planning and initiative. There was no evidence from which
    a properly instructed jury could find that the appellants trafficking of the
    drugs was carried out as a police agent acting under the direction and control
    of the unnamed detective.

[22]

In
    his closing address, no doubt as a result of the trial judges ruling, the
    appellant made no submissions with respect to the trafficking charge. His
    submissions were confined to whether the appellant was in possession of the
    heroin. The jury convicted the appellant of trafficking, but was unable to
    reach a unanimous decision on the possession of heroin and breach of recognizance
    charges. The appellant appeals from the conviction for trafficking.

ISSUES

[23]

The
    appellant argues that:

1.

the trial judge erred in concluding that there was no air of reality to
    the statutory defence of acting as a police agent;

2.

the trial judge erred in his assessment of likely relevance and in dismissing
    the
OConnor
application;

3.

the trial judge failed to instruct the jury on how to assess the defence
    evidence given his refusal to leave the police agent defence with the jury; and

4.

the trial judge erred in failing to declare a mistrial because of
    improper statements in the Crowns closing.

ANALYSIS

(1)

The air of reality finding

[24]

The
    appellant argues that his police agent defence ought to have been left with the
    jury. In the appellants submission, his evidence of his interaction with the unnamed
    detective and of his understanding that the detective wanted drugs and guns as
    well as the people that come with them was sufficient to give an air of reality
    to that defence, as required by
R. v. Cinous
, 2002 SCC 29, [2002] 2
    S.C.R. 3. In his submission, it was for the jury to weigh the strength or
    weakness of the appellants evidence tendered in support of the police agent
    defence. The trial judge ought therefore to have left that defence for the jurys
    consideration.

[25]

Cinous
provides that an air of reality for a defence will be made out if there is
    evidence upon which a properly instructed jury could reasonably acquit if they
    believed the evidence to be true: para. 82. This means that the trial judge
    must leave with the jury all defences that arise on the facts, even if counsel
    did not raise the defence. Merely asserting the elements of a defence will not,
    however, suffice. For there to be an air of reality to the defence, there must
    be evidence that, if believed, makes out each element of the defence:
Cinous
,
    at paras. 51, 88.

[26]

The air of reality test does
    not address the substantive merits of the defence or its likelihood of success.
    The totality of the evidence is considered with the assumption that evidence tendered
    in support of each element is true:
Cinous
, at
    paras. 53-54
.

[27]

In the appellants
    submission, in order to advance the police agent defence as contemplated by the
    regulation, he need show only that he was acting under the direction and
    control of the detective whose name he cannot recall. The appellant notes that
    there is little jurisprudence as to what constitutes direction and control,
    leaving considerable room for interpretation. Based on the appellant
s evidence,
a jury may very well have concluded that his interaction with the
    unnamed officer amounted to direction and control as contemplated by the
    regulation or, at the very least, the jury would be left with a reasonable
    doubt as to whether the appellant was in fact an agent.

[28]

The evidence of
    direction and control on which the appellant relies is his evidence that the detective
    told him he wanted drugs and guns as well as the people that come with them and
    that he was to report every Friday. This direction and control had, according
    to the appellant, essentially left him to figure things out on his own. On this
    basis, the heroin sale could be viewed as having been directed by the officer
    with control being exercised at the regular Friday attendances.

[29]

I would reject this
    ground of appeal.

[30]

The regulation provides that, in order for a person
    to be exempt from criminal liability, that person must be acting under the
    direction and control of a member of a police force and be assisting that
    officer in the course of
the particular investigation. The French
    version of the regulation is also quite specific. It provides that the person
    must be acting sous lautorité et la supervision du membre dun corps policier
    (under the authority and supervision) in order to assist dans le cadre de
    lenquête particulière (within the framework of the particular investigation).

[31]

I
    acknowledge that, as the appellant suggests, the wording of the regulation
    allows some room for interpretation. That said, pursuant to any reasonable
    interpretation of the regulation, the appellants arranging for and selling of two
    ounces of heroin cannot be said to have been carried out under the direction
    and control or lautorité et la supervision of the officer. Something more
    than a police officer telling a person that he wants drugs and guns as well as
    the people that come with them is required in order to constitute direction
    in the course of a particular investigation. For there to be control as
    contemplated by the regulation, more than telling the person to report every
    Friday is required. Based on the context and wording of the regulation, the phrase
    under the direction and control of a police officer connotes reasonably
    specific directions and control that are absent in the present appeal.

[32]

Here,
    the appellants evidence was that he set out to transact a significant drug
    deal from which significant profits would be derived without making any further
    contact with the detective and without any police oversight, involvement or
    knowledge. The appellant candidly acknowledged that he did not involve the
    police because he wanted Mr. Davolio to get paid for the drugs. In this
    context, the alleged instructions the appellant said he received and his bald assertion
    that he was acting as an agent are not sufficient to clear the air of reality
    hurdle. The evidence tendered simply does not provide the basis for the
    defence.

(2)

The
OConnor
application

[33]

The
    appellant argues that the trial judge erred in denying his
OConnor
application.
    In his submission, the third-party records being sought with respect to the
    bicycle incident and the OxyContin incident would confirm that the appellant
    had been a confidential informant, which would serve to explain why the detective
    recruited him to act as a police agent following his arrest on the shoplifting
    incident. In his submission, the third-party records would provide background information
    important to understanding his progression from police informant to becoming a police
    agent. It would also be relevant to the jurys assessment of his credibility
    and reliability.

[34]

Pursuant
    to
OConnor
, the onus is on an accused to satisfy the judge that the
    records are likely relevant to the proceedings and should be produced for the
    courts inspection. It is only once likely relevance is established that the
    judge examines the documents to determine whether and to what extent production
    should be ordered.

[35]

In
R. v. McNeil
, 2009 SCC 3,
[2009] 1 S.C.R. 66, Charron J. explained, at para. 29, that the burden on
    the applicant is significant but not onerous. It is significant in that,

the court must play a meaningful role in screening applications
    to prevent the defence from engaging in speculative, fanciful, disruptive,
    unmeritorious, obstructive and time-consuming requests for production. The
    importance of preventing unnecessary applications for production from consuming
    scarce judicial resources cannot be overstated; however, the undue protraction
    of criminal proceedings remains a pressing concern, more than a decade after
OConnor
.

That said, Charron J. went on to explain that,

the relevance threshold should not, and indeed
cannot
,
    be an onerous test to meet because accused persons cannot be required, as a
    condition to accessing information that may assist in making full answer and
    defence, to demonstrate the specific use to which they might put information which
    they have not even seen. [Emphasis in original. Citations omitted.]

[36]

In
    the present case, the trial judge determined that the documents being sought
    were not likely relevant as there was, in his view, no connection between
    co-operating with police in relation to the previous bicycle and OxyContin incidents
    and becoming an agent following his arrest on the shoplifting incident.
    Additional records with respect to the shoplifting incident, after which the
    appellant submits he spoke to the unnamed detective, were also not likely
    relevant. For the appellant to establish a police agent defence, the trial
    judge found, he would have needed evidence showing that he was acting as an
    agent on the day of his arrest. The evidence would need to be likely relevant
    to what happened that night.

[37]

The trial judge was in the
    best position to make an assessment as to likely relevance, and I see no reason
    to interfere:
R. v. Toms
(2003), 174 C.C.C. (3d) 87 (Ont. C.A.). The
    fact that a person has provided information and co-operated with police, even
    becoming a confidential informant on previous occasions, says little or nothing
    about whether the person became an agent of the police on a later occasion. Further,
    production of documents from the two previous arrests would not assist in the
    jurys assessment of the appellants credibility and reliability. The
    appellants testimony as to his having co-operated with police and provided
    information following the bicycle and OxyContin incidents was not disputed or challenged
    by the Crown at trial.

[38]

In
    oral submissions in this court, the appellant also argued that production of
    the TPS and DRPS records and notes related to the three incidents may have
    assisted him in determining whether or not to testify and to proceed with the
    defence of acting as a police agent. In particular, the records relating to the
    third incident, the shoplifting incident, may have revealed the name of the
    detective who had told the appellant he wanted drugs and guns as well as those that
    come with them. This might then lead to the production of notes that the detective
    may have of his exchanges with the appellant. These notes, or testimony by that
    detective, might either confirm the appellants testimony or raise doubts as to
    its accuracy. This, it is argued, is the type of information required for the
    appellant to make full answer and defence.

[39]

From
    my review of the transcripts, this basis for establishing likely relevance does
    not appear to have been argued or at least made the focus of the appellants
    submissions at trial. It was not, therefore, addressed by the trial judge in
    his reasons. In my view, this alternate basis for the
OConnor
application does not succeed.

[40]

I
    see no foundation for the appellants suggestion that the production of
    additional material may have revealed the detectives name and that this,
    together with the material produced, may have served to confirm the appellants
    testimony or resulted in different trial strategy such as deciding that the
    appellant would not testify or that the police agent defence would not be
    advanced. I say this for several reasons.

[41]

First,
    there is no basis for suggesting that further information would be uncovered.
    The Crown had made full disclosure, including production of the records of the
    appellants arrest on the shoplifting incident. It also produced the records
    relating to the appellants bail on that charge which, according to the
    appellant, would reveal the name of the unidentified detective. They did not. With
    respect to the DRPS records, the appellant received occurrence reports and
    police officers notes. None of the information produced was of assistance in
    discovering the detectives name or was relevant to the claim of being a police
    agent. In these circumstances, requiring the TPS and DRPS to produce additional
    information would constitute unnecessary production applications that would
    consume scarce judicial resources, the very type of application the Supreme Court
    said in
McNeil
should not proceed.

[42]

As
    to the suggestion that further production might reveal evidence that supports
    the appellants testimony, I have explained that, taken at its highest, the
    appellants own evidence has not made out the air of reality needed to advance
    the defence of acting as a police agent. Producing material confirmatory of the
    appellants evidence would be of no benefit to him because the appellants version
    of events, even if it is assumed to be accurate, fails to satisfy the air or
    reality requirement for a police agent defence.

[43]

Further,
    the suggestion that production of additional documents may have led to the
    appellant deciding not to advance the police agent defence is without merit.
    The appellant simply had no other basis for defending the trafficking charge. He
    was clearly intent on trying to establish the police agent defence. Even if
    some information or evidence were to have been produced as a result of the
OConnor
application, at most it could have served to confirm the appellants
    evidence, evidence that was not sufficient to create an air of reality to the
    defence. Alternatively, it could have detracted from the appellants evidence, but
    for the purpose of the air of reality test and deciding whether to leave the
    defence with the jury the appellants version would nonetheless have to be
    taken as true. There is no realistic possibility, therefore, that any
    additional records that may have been located would have resulted in a
    different defence being advanced. Nor could it have resulted in the appellant
    deciding not to testify as his evidence was necessary to respond to the two other
    charges, charges for which he was not convicted.

(3)

The jury instructions

[44]

The
    appellant argues that the trial judge ought to have instructed the jurors on
    how they should interpret the evidence in light of his ruling that there was no
    air of reality to the police agent defence. Absent an explanation for not
    putting the defence to the jury, the appellant submits that jurors may have
    believed the trial judge made a negative assessment of his credibility or been
    otherwise confused.

[45]

I
    would dismiss this ground of appeal. The jury charge was sufficient in the
    circumstances of this case. In my view, the jury would not have been confused
    by the trial judge omitting to mention the disallowed defence. Nothing in the
    charge suggested that because the trial judge had not included the defence in the
    charge, he had made a credibility assessment. Nor would anything said or unsaid
    encourage the jury to draw such an impermissible inference from the fact that
    the agent defence was not mentioned. As submitted by the Crown, to specifically
    refer to the absence of the defence could very well have caused confusion by
    resurrecting the defence.

[46]

Further,
    at no point did the appellants trial counsel seek such a specific instruction
    and no objection was taken on this aspect of the charge.

(4)

The Crowns closing address

[47]

The
    appellant takes issue with the Crowns closing address to the jury. In his
    view, the closing suggested that the manner in which the appellant conducted the
    trial by presenting irrelevant evidence, obfuscating the truth, and resorting
    to red herrings had resulted in time being wasted.

[48]

From
    my review of the transcript, the Crowns closing address did not accuse the
    appellant of wasting time. Rather, it properly focused on identifying
    inconsistencies in the appellants evidence and suggesting that his credibility
    was limited. The reference to an argument being a red herring was with respect
    to the defence suggestion that who was physically handling the drugs was
    critical to the issue of possession. In context, these comments are in no way
    prejudicial. In my view, the Crowns closing address was proper and responsive
    to the issues raised by the defence and fell comfortably within the scope of
    advocacy in which the Crown is entitled to engage.

[49]

The
    appellant also submits that the Crown improperly told the jury that the
    appellant had conceded the trafficking accusation. He believes that these
    statements were highly prejudicial and that no remedy short of declaring a
    mistrial was appropriate.

[50]

The
    trial judge noted that this unfortunate statement warranted some further
    direction. His corrective instruction wherein he identified the fact that the
    appellant had not conceded the trafficking charge and that the Crown bore the
    burden of proof was, in the circumstances, adequate to address that issue.

CONCLUSION

[51]

For
    these reasons, I would dismiss the appeal.

Paul Rouleau J.A.

I agree S.E. Pepall
    J.A.

I agree Grant
    Huscroft J.A.

Released: January 29, 2019

PR


