COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Gingras,

 

2013 BCCA 293

Date: 20130620

Docket: CA040191; CA040188

Docket:  CA040191

Between:

Regina

Respondent

And

Jean Gaetan Gingras

Appellant

- and -

Docket: CA040188

Between:

Regina

Respondent

And

Bruno DiQuinzio

Appellant

Restriction on publication:  A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim/witness/ undercover officer, referred to in this judgment by the initial A.  This publication ban applies indefinitely unless otherwise ordered.

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Harris

On appeal from:  An order from the Supreme Court of British Columbia, dated March 12, 2012 (R. v. Gingras, Vancouver Docket 25379)

Counsel for the Appellant,
Jean Gaetan Gingras:

G. D. McKinnon, Q.C.

Counsel for the Appellant,
Bruno DiQuinzio:

C. L. Bauman

Counsel for the (Crown) Respondent:

W. P. Riley and M. Ogi-Harris

Place and Date of Hearing:

Vancouver, British Columbia

May 28 and 29, 2013

Place and Date of Judgment:

Vancouver, British Columbia

June 20, 2013

 

Written Reasons by:

The Honourable Mr. Justice Donald

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Harris


 

Reasons for Judgment of the Honourable Mr. Justice Donald:

Introduction

[1]             The appellants appeal from the refusal of a stay of proceedings based on entrapment.  The appellant Gingras additionally seeks a new trial on the ground that because of hearing difficulties he was not effectively present at his trial which, he argues, resulted in a miscarriage of justice.

[2]             After a trial before a judge without a jury, the appellants were convicted of conspiracy to traffic in cocaine.  Mr. Gingras was also convicted of two counts of money laundering.

[3]             The charges arose out of an undercover investigation of Mr. Gingras.  The police suspected that he was involved in an attempted bombing in 1986 and launched “Project Expedio” to investigate his involvement.

[4]             During the investigation, Mr. Gingras participated in two money laundering transactions. In the first, a trial run, Mr. Gingras converted US $25,000 cash, given to him by an undercover police officer (Officer A), into Canadian currency less a fee.  The next transaction involved Officer A giving Mr. Gingras US $100,000 cash, which again Mr. Gingras converted into Canadian funds less a fee.  During negotiations, Mr. Gingras informed Officer A that Mr. DiQuinzio was his partner.  Officer A represented the US cash to be drug proceeds.

[5]             These transactions then led to a conspiracy to traffic cocaine between the appellants and Officer A.  The appellants were to acquire 50 kilograms of cocaine from Officer A at a price of $22,000 per kilogram which they would then distribute.  The appellants were arrested in Vancouver after a down payment of $375,000 was made.

[6]             For the reasons that follow I would dismiss the appeals.  In my view, the trial judge did not err in determining that the undercover officer had a reasonable suspicion when he offered the appellants the opportunity to commit a crime.  I am also of the view that Mr. Gingras, despite hearing difficulties, received a fair trial.

Background

[7]             In 1986 there was an attempted bombing of the print shop of Tara Singh Hayer, the publisher of the Indo-Canadian Times newspaper in British Columbia.  A live bomb was discovered outside his shop, which the police were able to explode safely.  Mr. Hayer had become a target because of his criticism of those who were responsible for the Air India bombing.  He survived another attempt on his life in 1988 but the bullet wounds left him paralyzed.  In 1998 he was murdered before he could testify at the Air India trial.  Project Expedio was launched as the police suspected that Mr. Gingras was involved in the 1986 bombing attempt.

[8]             In Project Expedio, Officer A posed as a shady South American businessman.  Mr. Gingras, living in Montreal, was introduced to Officer A by his girlfriend, who had befriended Officer A’s “undercover girlfriend”.  The pretext was that Officer A needed local knowledge of Montreal in setting up office premises for an unspecified importing business with heavy hints that the business was illegitimate.

[9]             In the investigation, Officer A opened up the topic of money laundering with Mr. Gingras by saying words to the effect that he had a problem concerning what to do with the money generated by his business.  Mr. Gingras said he knew of a scheme which used lottery tickets as a solution.  Later he boasted of laundering $40 million for a Filipino client.  He said that his partner, referring to Mr. DiQuinzio, would look after whatever he needed.  Later Officer A met Mr. DiQuinzio in what seemed to Officer A to be a staged encounter.  Mr. Gingras and Officer A had met in a coffee shop in Montreal.  Mr. DiQuinzio came by their table and Mr. Gingras introduced him as his partner.  Before going on his way, Mr. DiQuinzio expressed to Officer A the hope that they could do business together.

[10]         Subsequent to this meeting, Officer A obtained authority from his cover team to expand the scope of Project Expedio to include an investigation into money laundering and drug trafficking.  He took up Mr. Gingras’s invitation and gave him US $25,000 to launder.  This was followed by a second transaction involving US $100,000.  The direct involvement in the money laundering included only Officer A and Mr. Gingras.

[11]         During these transactions, Mr. Gingras made statements of needing Officer A to help him bring in white powder from South America to Canada.  Officer A subsequently mentioned that the laundered money was drug money.  It was Mr. Gingras who then broached the subject again, that he and Mr. DiQuinzio wanted cocaine brought to Canada from South America.  After expressing initial reluctance to include Mr. DiQuinzio in the discussion, Officer A agreed to deal with them both.  Mr. DiQuinzio played an active role in developing the agreement to import the drug.

[12]         The entrapment is said to have arisen from the absence of a reasonable suspicion on the part of the police that Mr. Gingras was in the money laundering business prior to the first opportunity Officer A presented to him.  As far as Mr. Gingras is concerned, his plea of entrapment depends on establishing such an absence at the first transaction because, as his counsel concedes, after Mr. Gingras successfully completed the conversion of US $25,000 held out as drug proceeds, his involvement in the crime world was beyond doubt.

[13]         Mr. DiQuinzio’s case for entrapment is somewhat different, at least as to timing.  The direct evidence of his participation in an offence, apart from Mr. Gingras’s claim that Mr. DiQuinzio was part of the money laundering, relates to the cocaine conspiracy.  His point is that the police could not have had a reasonable suspicion that he was a drug dealer prior to bringing him into the negotiations.

[14]         Both appellants make the same argument and it comes down to this: Mr. Gingras was an unreliable source of information about himself and Mr. DiQuinzio.  Just as informants of unknown reliability cannot furnish reasonable suspicion of criminality absent confirmation, Mr. Gingras’s exaggeration and fabrication in his conversations with Officer A so affected his reliability that the police needed verification before proceeding to make the appellants an offer to commit a crime.  When Mr. Gingras said that Mr. DiQuinzio was his partner-in-crime that too fell short of providing a reasonable suspicion.  The judge is said to have erred in finding reasonable suspicion in Mr. Gingras’s invitation to Officer A to use his capacity to launder money.

[15]         Mr. Gingras’s additional ground of appeal is based on his claim that he could not hear what was going on at his trial.  He averred in an affidavit offered as new evidence on appeal that he probably heard only about 30% of the trial.  He attributed a hearing deficit compounded by the French-English interpretation as the cause of the problem.  Mr. Gingras is francophone, although he has some fluency in English. The majority of the transactions with Officer A were in English.  Mr. Gingras says that during the trial he complained to his lawyer that he could not hear the proceedings, but she put him off by assuring him that she was looking after his case.  He filed affidavits from trial counsel as well as audiology reports to support his claim that he did not receive a fair trial.

[16]         He was cross-examined on his affidavit at the hearing of the appeal. In my estimation, he was a poor witness.  He was crafty and dodgy, given to long, discursive answers in an effort to evade difficult questions: he was unresponsive to direct questions going directly to his comprehension of what was spoken at trial, and dissembling in an effort to portray himself as a simple, open and guileless person.  I do not accept his evidence.  I will make further mention of the new evidence when analyzing the fair trial issue.

Issues

[17]         The issues on appeal are:

1.       Did the judge err in rejecting entrapment?

2.       Was Mr. Gingras effectively present at his trial?

Discussion

1.       Entrapment

[18]         The modern law of entrapment in Canada was expounded in R. v. Mack, [1988] 2 S.C.R. 903.  Mr. Justice Lamer, as he then was, wrote for the Court, at 959:

            To summarize then, the police must not, and it is entrapment to do so, offer people opportunities to commit crime unless they have a reasonable suspicion that such people are already engaged in criminal activity or, unless such an offer is made in the course of a bona fide investigation. In addition, the mere existence of a prior record is not usually sufficient to ground a “reasonable suspicion”.  These situations will be rare, in my opinion.  If the accused is not alleging this form of entrapment the central question in a particular case will be: have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?

            There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides, as explained earlier 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.  As I have already mentioned, the first form of entrapment is not likely to occur.  The police of this country are generally resorting to the type of investigatory technique of providing opportunities only in relation to targeted people or locations clearly, and therefore reasonably, suspected of being involved in or associated with criminal activity, or again are already engaged in a bona fide investigation justifying the provision of such opportunities.

[19]         The narrow issue in this case is whether the police had reasonable suspicion.

[20]         The appellants argue that Mr. Gingras’s overtures to Officer A could not have provided reasonable suspicion, yet that is what the judge relied on.  In her entrapment ruling given March 16, 2012, the judge said in relation to the money laundering transactions:

[44]      The applicants submit that there must be independent evidence to give rise to the suspicion.  However, it is clear that the words of the target can provide the officer with reasonable suspicion; see R. v. Reid (1996), 155 N.S.R. (2d) 368 (C.A.); Olazo [R. v. Olazo, 2012 BCCA 59]; and R. v. Imoro, 2010 ONCA 122.

[21]         The judge went on to canvass the evidence of reasonable suspicion concerning the drug deal:

[45]      The drug trafficking aspect of the investigation also arose as a result of statements made by Mr. Gingras to [Officer A].

a)    In January 2008, Mr. Gingras said he needed a favour. He wanted some product from [Officer A]. He wanted to bring product, white powder, from South America to Canada and perhaps to Europe.

b)    In February 2008, after the second money laundering transaction, Mr. Gingras told [Officer A] that he and Bruno wanted 100 to 200 kilos of cocaine, but would be satisfied with 50 kilos per week.

[46]      In addition, the December 17, 2007 investigation planning report stated the following concerning Mr. Diquinzio:

Background checks conducted on Bruno Diquinzio has shown involvement in multi-kilogram drug trafficking, including cocaine and hashish, since the late 1980’s. A review of past projects and other information discussing Bruno Diquinzio indicated that he has contacts with Organized Crime figures in the Montreal area involved in cocaine and hash importation, however, he appeared to be acting on his own with the help of his brother and other associates. There was no information located to support that he was a member of an Italian traditional organized crime family, however, this result is based on the fact that he did not surface as an accused or person of interest in Project …

Nevertheless, he has been the target of two major international drug investigations. The most recent…in 1997 and 1998, investigated Bruno Diquinzio's involvement in the importation of cocaine. Bruno Diquinzio was dealing with persons in New York, Miami, and Colombia to attempt to import several kilograms of cocaine into Montreal. Surveillance was detected by Bruno Diquinzio on several occasions and the Part 6 revealed that Bruno Diquinzio believed his calls were being recorded. He changed cell phones and reduced his calls dramatically and specifically with his partners in the importation which resulted in no apparent deal being made. Despite no cocaine importation intercepted on this file they identified a stash house related to Bruno and Dino Diquinzio and executed a search. They located the following: 

•     31 kilograms of marihuana;

•     nine kilograms of hash / 98 Kg substance used in the production of hash;

•     two M16 firearms / 1 M10, known as Mini-Uzi / .22 caliber revolver / .45 caliber hand gun / silencer;

•     night vision goggles;

•     $190,000.00 Canadian currency / $38,000 American currency;

•     Remote control bomb;

•     small amounts of cocaine, heroin, psilocybin, MDMA, and LSD.

Mr. Diquinzio disappeared after the seizure and was wanted for approximately a year and a half. He was arrested on September 28, 1999, after changing his appearance (beard / dyed hair) and having fake photo identification (passport, drivers licence, medical insurance card, and others). He was in possession of a loaded 9 millimetre handgun.

In 1999, Bruno Diquinzio pled guilty to 21 charges relating to the above seizures [and the sentences he received are then listed].

He was released from custody in 2001 and has not received any criminal convictions since. The most recent information located alleging his involvement in cocaine trafficking was in 2004. The information showed that someone was to purchase 2 kilograms of cocaine from Bruno Diquinzio. No seizure appeared to have taken place, and no charges laid.

[47]      The author of the supplemental operational plan dated April 23, 2008, which commented on the then proposed drug transaction, contained the following statement:

Diquinzio's criminal history and comments made by Gingras to the operator support the proposition that both these individuals have not only the means, but the intended motive to carry out a large scale drug conspiracy.

And she expressed her conclusion this way:

[48]      As with the money laundering, there existed reasonable suspicion that the applicants were involved prior to the opportunity to purchase the drugs being offered to them.

[22]         Mr. Gingras’s case for entrapment depends on the absence of reasonable suspicion for the first money laundering transaction.  If it was free of entrapment, then there can be no doubt that the police thereafter had reasonable suspicion to offer a larger money laundering deal and a cocaine importing scheme.  He argues that the judge’s decision to follow Reid and rely on Mr. Gingras’s own words to Officer A for the requisite suspicion runs contrary to her earlier assessment of his reliability.  In her reasons for conviction, the judge addressed the argument that no agreement was formed because of the bizarre nature of the communications between the appellants and Officer A.  In this context, she said:

[188]    It may well be that much of what Mr. Gingras and Mr. Diquinzio told [Officer A] was either a complete fabrication or an exaggeration.

[23]         Mr. Gingras draws a parallel to the situation where police have nothing more than a tip from an informant of unknown reliability, in which case some objective confirmation of the tip is required in order to arouse reasonable suspicion.  I do not think the analogy holds in the circumstances of this case.

[24]         In response to Mr. Gingras’s arguments, the Crown questions whether entrapment can ever arise when the police accept an offer by the accused to commit an offence.

[25]         However, in the language of the common law of contract, Mr. Gingras’s approach to Officer A for money laundering was not an offer, but an invitation to treat – an indication of a willingness to enter into negotiations with a view to forming an agreement.  Presumptively an invitation to treat should be enough to satisfy the police that the person is already engaged in the proposed criminal enterprise and the police can take things to the next stage in the form of an offer.  That is what happened in this case when after Mr. Gingras’s invitation Officer A offered Mr. Gingras the opportunity to launder US $25,000 in a trial run.  However, I do not think it would be correct to say that the accused’s invitation necessarily obviates entrapment.  That is because a fundamental rationale in Mack is that the doctrine of entrapment should focus on police conduct, not that of the accused.  Having said that, it would take a fabulist such as Walter Mitty or a Baron von Munchausen to undermine the suspicious effect of an invitation by an accused to commit an offence.  While Mr. Gingras may have puffed up his criminal prowess, he still presented as a plausible money launderer.

[26]         The police are not required to operate at a level of certainty in these matters.  In R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, Binnie J. said this about the reasonable suspicion standard:

[75]      The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case.  “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity.  A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123:

[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient.  Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.

. . .

What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-26]

Writing about “reasonable suspicion” in the context of the entrapment defence, Lamer J. in R. v. Mack, [1988] 2 S.C.R. 903, thought it unwise to elaborate “in the abstract” (p. 965).  See also R. v. Cahill (1992), 13 C.R. (4th) 327 (B.C.C.A.), at p. 339.  However, in Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted “reasonable suspicion” with reasonable grounds of belief (or, what the U.S. lawyers call “probable cause”):

            Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [p. 330]

See also R. v. Olazo, 2012 BCCA 59 at para. 16. 

[27]         I do not accept the argument that the judge arrived at inconsistent conclusions regarding Mr. Gingras’s reliability as a self-reporting criminal.  To exaggerate is not to fantasize and there was enough for the police to go on.  It was therefore unnecessary for the police to conduct a subsidiary investigation to determine whether Mr. Gingras did indeed have the capacity to launder money.  And in my opinion, the judge did not err in failing to canvass all the facts surrounding Mr. Gingras’s invitation in order to determine reasonable suspicion. 

[28]         Turning to the offer presented to Mr. DiQuinzio, I am not persuaded the judge erred in finding that it too was based on reasonable suspicion.  The encounter in the Montreal coffee shop where he was introduced to Officer A as Mr. Gingras’s partner tended to confirm Mr. Gingras’s information regarding their relationship.  Mr. DiQuinzio argued on appeal that his testimony at trial gave an innocent cast to that meeting, to the effect that Mr. Gingras and he were partners only in a legitimate property business, but the judge rejected his evidence.  So regarding Mr. DiQuinzio, Mr. Gingras was an informant whose reliability had been confirmed in two money laundering transactions by the time negotiations for the cocaine deal got underway.  In addition, there were the details of the background checks conducted by the police as recited by the judge in her entrapment ruling and quoted earlier in these reasons.

[29]         In regards to those background checks, Mr. DiQuinzio argues that his criminal record was dated and ought not to have been taken as supplying reasonable suspicion.  He was released from prison in 2001 and the drug offence was in 2009.  However, police intelligence implicated him in more current drug activity at a high level which, coupled with Mr. Gingras’s information, suggests his rehabilitation was incomplete.

[30]         In the result, I would dismiss the appeals based on entrapment.

2.       Fair Trial

[31]         The enactments relevant to Mr. Gingras’s argument that he did not have a fair trial are:

Criminal Code

650. (1)  Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

Canadian Charter of Rights and Freedoms

7.         Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 

* * *

11.       Any person charged with an offence has the right

(d)        to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

[32]         The theory behind Mr. Gingras’s argument is straightforward.  Because he could not hear about 70% of the proceedings, he claims he was not effectively present, contrary to s. 650(1) of the Criminal Code, his right to fundamental justice was denied in violation of s. 7 of the Charter, and he did not receive a fair hearing guaranteed by s. 11(d) of the Charter.

[33]         The respondent argues that Mr. Gingras has grossly exaggerated his hearing problems.  I agree with that argument.  He was not a believable witness. 

[34]         He failed to provide a reasonable explanation why he did not get hearing aids for the trial.  The judge arranged headphones for him but he said they were unsatisfactory.  He was given a French language interpreter who sat beside him during the trial.  The audiology evidence presented on appeal indicated that he was in the normal range of hearing on his left side if the speaker was within five feet or so.  The interpreter sat on his left. 

[35]         Mr. Gingras said everyone talking at once produced a confusion of sound and he had to ask his counsel at the breaks what people were saying.  This was confirmed by the affidavit evidence of his trial counsel only to the extent that he wanted to know the significance or import of what people were saying.

[36]         The most that can be expected of the trial courts is that they provide a reasonable opportunity for the accused to hear the proceedings in a language they understand.  There can be no guarantee that the accused will comprehend the legal significance of what transpires.  That is the function of counsel and why R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.) was decided.

[37]         Mr. Gingras tried to introduce a French-English dimension to his fair trial claim but the attempt was wholly unconvincing.  His counsel did not press the matter before us.  Mr. Gingras suggested in his affidavit that his interpreter spoke with a Parisian accent which added a hearing difficulty for him as a Quebecois speaker.  This was not supported by any other evidence.  Indeed, since he dealt with Officer A about 80% of the time in English and as counsel stated at the beginning of the trial that he probably did not require an interpreter, no real language issue arises for our consideration.

[38]         I would reject Mr. Gingras’s claim that he did not receive a fair trial.

Disposition

[39]         For the foregoing reasons, I would dismiss the appeals.

“The Honourable Mr. Justice Donald”

I agree:

“The Honourable Madam Justice Newbury”

I agree:

“The Honourable Mr. Justice Harris”