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DEFENCES - Entrapment

Monday, July 12, 2021 @ 9:35 AM  

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Appeal by the accused Bank and Yip from conviction for trafficking in a controlled substance. Both appellants unsuccessfully argued entrapment at trial. The police contacted each of the appellants after receiving a Crime Stoppers’ tip that specific phone numbers were involved in the sale of drugs. The constable ran these numbers through police databases. The officer learned that Bank used one of the numbers in a complaint that his car had been stolen. The undercover operator purchased drugs from Bank using the other number. Bank arrived at each meeting and gave the operator plastic baggies containing cocaine in exchange for cash. Police also received a tip through Crime Stoppers that Yip was trafficking in cocaine, used the first name Jason and a specific phone number, and delivered the drugs in a vehicle. The operator arranged a meeting with the user of this number and purchased cocaine from Yip, who identified himself as Jason. The undercover operator met with Yip several times and bought cocaine from him. The trial judge held that the questions “Can we meet” and “Please, Dude” were simply steps in the investigation of the tip and asking “Can we meet” did not amount to giving Yip the opportunity to traffic in drugs. Bank argued that the trial judge erred in finding that the Crime Stoppers’ tip that two phone numbers were associated with the sale of drugs was credible and that the police had reasonable suspicion before offering him the opportunity to commit a crime. Yip argued that the trial judge erred in finding that police officers could develop a reasonable suspicion during a call. He argued that police presented the opportunity at the outset of the telephone exchange and that the purpose of the call was not to investigate but to purchase drugs.

HELD: Appeals dismissed. The police’s corroboration of the tip by searching databases prior to initiating contact with the two phone numbers connected to Bank provided a sufficient basis to conclude that there was a reasonable suspicion the two phone numbers were associated with criminal activity. The Supreme Court’s decision in Ahmad issued after the trial decision was determinative of the issue of whether police had reasonable suspicion before contacting Bank with the number used and that police could form a reasonable suspicion during a phone call. Police had a reasonable suspicion that the number connected to Yip was used to sell drugs. During the call, the undercover operator did not offer to purchase drugs as much as engage in a conversation that led Yip himself to offer to sell drugs. To the extent the operator’s reasonable suspicion was relevant, this suspicion arose before the operator answered Yip’s question as to what quantity of drugs she was looking to purchase.

R. v. Bank, [2021] A.J. No. 818, Alberta Court of Appeal, B.K. O'Ferrall, T.W. Wakeling and F.L. Schutz JJ.A., June 15, 2021. Digest No. TLD-July122021002