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INVESTIGATIVE QUESTIONING NOT AN OPPORTUNITY TO COMMIT CRIME


February 10, 2014
By Mike Novakowski

There is a difference between investigative questioning and providing an opportunity to commit a crime.

In <R. v. Ralph, 2014 ONCA 3> police received a tip about a person using a particular telephone number to sell drugs. An undercover officer called and left a message asking the person to call him back. A male called back 41 minutes later, talking with the officer and setting up a meeting.

The officer met with Ralph later that night and bought 1.6 grams of cocaine. He met with Ralph several more times to buy increasingly larger amounts of crack and powder cocaine. Ralph also offered to sell a firearm to the officer. When Ralph was arrested, police seized cocaine.

In the Ontario Superior Court of Justice Ralph was convicted on multiple charges of trafficking, possession of the proceeds of crime, possessing cocaine for the purpose of trafficking and offering to transfer a firearm. He argued that the charges should have been stayed because he was entrapped but the judge disagreed.

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In the judge’s view, the telephone tip wasn’t enough to generate a reasonable suspicion. Police, however, are nonetheless permitted to pursue a tip by calling the number to investigate and confirm information as long as they did not offer an opportunity to commit a crime until they had grounds for reasonable suspicion.

Commenting “I need product” did not amount to providing the target with an opportunity to commit the crime of trafficking. Rather it was investigative in nature. The opportunity to commit a crime occurred later when specific drugs were solicited and ordered (ie. when the officer said he needed “a half-ball.”) Ralph failed to establish on a balance of probabilities that police did not have a reasonable suspicion that he was a drug dealer by this time. He was sentenced to three years in prison.

Ralph challenged the ruling to the Ontario Court of Appeal arguing, among other things, that the trial judge erred in not finding that he was entrapped. He submitted that police did not have a reasonable suspicion before giving him an opportunity to commit an offence and therefore he was subject to random virtue testing.

In his view, the opportunity to commit an offence occurred when the officer said: “I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up… I need product.” At this point, he contended the officer did not have a reasonable suspicion that he was involved in drug trafficking.

Justice Rosenberg, writing the court’s opinion, agreed with the trial judge. The officer’s statement was part of the investigation rather than an opportunity to commit a crime.

“(I)t was a legitimate investigative step,” said Rosenberg. “When the (accused) responded as he did, this response together with the anonymous tip was… sufficient to provide the officer with reasonable suspicion and justify the further statements from the officer. This wasn’t a case of random virtue testing and entrapment wasn’t made out.”

Ralph’s appeal was dismissed.

{Telephone conversation}

Here is the complete exchange when Ralph returned the officer’s call:

Officer: Hello?

Ralph: You called me and left a message.

Officer: Yeah, what’s going on?

Ralph: Who’s this?

Officer: (gives his undercover name).

Ralph: Okay, how’d you get my number?

Officer: I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up… I need product.

Ralph: Okay, so what are you looking for? What do you need?

Officer: I need a half (meaning one half of an eight-ball of crack cocaine).

Ralph: Okay, the small thing, that’s it?

Officer: Yeah, hard, white (meaning crack cocaine)… where are you?

Ralph: I’m at Weston Road. Meet me at Scarletwood.

Officer: I’ll call you back at 7:30. How much?

Ralph: A bill (meaning $100.)

Officer: What’s your name?

Ralph: Blacus.