BC justice calls illegal US Drug Enforcement Administration activities in Canada an "abuse of process"

A British Columbia Supreme Court justice has called the illegal activities of the US Drug Enforcement Administration (DEA) in Canada in 1999 "blatant acts in disregard of Canadian sovereign values and law," and "so egregious as to constitute an abuse of process." As a result, the judge stayed an application by the US government to have a suspect committed for extradition to the United States.

The full text of the August 1, 2002, decision by The Honourable Madam Justice J.R. Dillon in United States of America v. Licht, 2002bcsc1151, can be found here.

The judge found that one entry into Canada by the DEA and its confidential source (on August 7, 1999) to participate in a drug investigation was legal.  It was conducted as required by Canadian law and by a formal agreement (memorandum of understanding) between Canada and the US.  However, a second entry on August 21, 1999, was not legal.  This second entry and the activities that followed constituted an abuse of process.

Here are some excerpts from the decision:

[10]     CS2 [confidential source 2, a person employed by the DEA to operate undercover] and his DEA handler travelled to Canada under the supervision of the RCMP on August 7, 1999. Members of the DEB 'E' Division of the RCMP met them at the airport. CS2 signed a Minister's Permit from Immigration Canada allowing him temporary entry into Canada until August 8, 1999. CS2 had a criminal record and was then on probation for fraud. CS2 also signed a "negative Letter of Acknowledgment" with the RCMP. This letter is a condition precedent to an agent acting in Canada. In it, CS2 stated that he understood that the investigation or his involvement in it could be discontinued at any time at  the sole discretion of the RCMP and/or the DEA.

. . .

 (i) Illegality of DEA conduct and other circumstances

 [45]     The activity of the DEA and CS2 on August 8, 1999 was clearly legal. The DEA had proceeded pursuant to the Controlled Drugs and Substances (Police Enforcement) Regulations and the memorandum of understanding between the two countries to obtain permission from the RCMP to carry out a specific operational plan for a reverse sting. CS2  had permission to enter Canada and acted throughout under the supervision of the RCMP. It was clear that the meeting was to negotiate the sale of drugs to Canada, luring in Canadian purchasers that were unknown to police at the time. The DEA agent's specific conversation on that day is not in evidence as the manner of reporting these events is to describe what the suspect  said. However, there was certainly discussion of the sale of drugs by CS2, the only question being the quantity. At the end of  the meeting, the DEA wanted to supply one kilogram test sales to the Canadian purchasers but the RCMP would not agree to continue with this plan.

 [46]     What is apparent after this meeting is that CS2 and the DEA were fully aware of the requirements to carry on the
 reverse sting operation within Canada. They had been frustrated by the slowness of the RCMP to respond to their request
 such that the RCMP officer apologized to headquarters that if the request was not responded to quickly, there was concern
 that the DEA would act without authority in Canada. This is exactly what happened on August 21, 1999.

 [47]     CS2 entered Canada without permission and furthered the reverse sting operation without the consent of the RCMP.
 There can be no doubt that he did so knowing that this was in contravention of the agreements between Canada and the
 United States for mutual assistance in criminal matters and the memorandum of understanding between the two countries. The
 requesting state admitted that the memorandum of understanding, which was not in evidence before me, "required the RCMP's
 consent for investigative activities undertaken by the DEA in Canada". The requesting state did not argue that this consent was
 obtained. Rather, the United States said that there is insufficient evidence that CS2 offered to sell drugs on August 21, 1999. It
 is uncontroverted that the RCMP was unaware that CS2 entered the country on August 21, 1999 to carry on with the reverse
 sting.

 [48]     CS2 also entered Canada without lawful immigration status. It is acknowledged that he required a Ministerial Permit to
 enter Canada on August 8 and that this permit expired on August 8, 1999. From this, I conclude that CS2 was illegally in
 Canada on August 21, 1999 or at least was here without lawful authority to carry out a reverse sting investigation.

 [49]     The requesting state submitted that without recount of the conversation between CS2 and Licht on the pier at White
 Rock, it is not possible to conclude that an offer to traffic in cocaine from CS2 was made. As such, there is insufficient proof
 that an illegal act took place. I disagree. There is sufficient circumstantial and direct evidence to conclude that an offer to
 provide cocaine in California was made by CS2 to Licht.

 [50]     CS2 had no other reason to meet with Licht than to negotiate the sale of cocaine pursuant to the reverse sting
 operational plan. This was CS2's opportunity to meet with the "main guy". Stephanian and Ali with whom CS2 had been
 negotiating for some time had set up the meeting. Each knew the purpose of the meeting. The cocaine transaction was
 discussed in terms of a purchase. Licht discussed purchasing cocaine from CS2. No such discussion would have occurred if
 CS2 had not indicated that he had cocaine to sell. At the end of the meeting, Stephanian heard: "everything was set". The
 parties agreed to meet in California to further the cocaine transaction. There is no other reasonable inference from these
 circumstances than that CS2 offered to sell cocaine and Licht agreed to buy cocaine. Events after the White Rock meeting
 also lead to this conclusion.

 [51]     Licht was not known to the DEA as a suspect before this meeting. What was known, was that the "main guy" would
 not carry through with a transaction unless he met with CS1 or CS2 in Canadafirst and that he would not travel to the United
 States. It was also urgent that the meeting take place right away because CS2 had been criticized before for not attending a
 meeting in Canadaearlier. Also, Stephanian and Ali had wanted CS1 and CS2 to come to Canada on August 18, 1999 but
 CS1 had said that he could not come. The operation was in jeopardy if this meeting did not take place.

 [52]     Arrangements were made at the White Rock meeting to meet at Jerry's Deli in California on August 24, 1999. This
 meeting occurred. There is no evidence of any conversations with either of the CSs and Licht or the others between the White
 Rock and Jerry's Deli meetings. The meeting on August 24, 1999in California was the final negotiation for the cocaine.

 [53]     The conduct of CS2 in offering to sell cocaine in a reverse sting operation on August 21, 1999 was illegal, in
 contravention of the Controlled Drugs and Substances Act and without the authorization of the Controlled Drugs and Substances (Police Enforcement) Regulations. This act was committed in Canada. Contrary to international law and agreements, there was no cooperation or consent of the RCMP who were unaware of this activity and who had refused to participate further in the operation after August 8, 1999.

 [54]     The requesting state has not repudiated the conduct of CS2. Instead, it relied on this conduct to seek an arrest warrant
 in Canada. The evidence has been used in the United States. There is no indication that the evidence will not be used at the
 trial of Licht in the United States.

 [55]     The requesting state denied disclosure of these events to Licht until ordered by this court. It is apparent, however, that
 this information was required to allow Licht to make full answer and defence in this committal hearing. The White Rock
 meeting was the catalyst to any further developments in the reverse sting operation. Without the meeting, the transaction would
 not have occurred because Licht would not have gone to California. It matters not that this information may not have been
 required for the requesting state to present a prima facie case. The respondent is entitled to the information required to
 present a full defence.
 

 (ii) Abuse of process

[56]  This is one of those rare cases where an abuse of process is readily apparent. A United States police agent entered
 Canada without proper immigration status to carry out an illegal activity without the knowledge or consent of the RCMP and
 knowing that the RCMP had withdrawn consent to further involvement in the reverse sting operation. This conduct is clearly
 contrary to Canadian sovereign interests.

 [57]     This was not a bona fide investigation being carried out in Canada. CS2 acted in defiance of known Canadian requirements to make his conduct legal in Canada and to be acceptable internationally. The failure to immediately advise the RCMP of this conduct is indicative of further bad faith on the part of the requesting state. No explanation has been offered by  the requesting state. The illegality of this conduct is magnified by the fact that CS2 knew that his conduct was illegal and that  the RCMP would not allow further investigation in Canada. CS2 chose to act outside Canadian law. The requesting state has not repudiated this conduct.

. . .

 [59]     The conduct of a United States civilian police agent entering Canada without the knowledge or consent of Canadian
 authorities, in defiance of known Canadian requirements for legal conduct, with the express purpose to entice Canadians to the
 United States to commit criminal acts in that jurisdiction and acting illegally to offer to sell cocaine in Canada is shocking to the
 Canadian conscience. It is a serious violation of the sense of fair play and decency that has been established in cooperation
 agreements for mutual assistance in criminal matters. It is also a serious violation of Canadian legality in the circumstances of
 clear defiance of Canadian law without explanation except perhaps to pursue drug dealers through the reverse sting technique
 that requires specific planning and approval in Canadabefore it can be legal by authorized police officers.

       (iii) Appropriate remedy

 [60]          The illegal conduct of the United States DEA is so shocking here and so detrimental to international cooperative
 agreements to assist in criminal matters that I would be inclined to order a stay on that basis alone. The repression of crime
 must be done in a way that reflects our fundamental values as a society (Conway, supra at para. 8). These values are
 reflected in international cooperation agreements requiring the consent and authorization of the RCMP for foreign operatives to
 conduct police activity in Canada and in specific legislatively approved requirements for police controlled reverse sting
 operations within Canada. Canadians would not have confidence in their international agreements or police methods of
 pursuing crime if this conduct occurred. Blatant acts in disregard of Canadian sovereign values and law by this requesting state
 is so egregious as to warrant a stay.

. . .

 [63]     Is this one of those clearest of cases or are there societal interests sufficient to tip the scale in favour of proceeding?
 The wrongdoing here is so offensive to Canadian society as to warrant a stay. The need to combat international drug
 trafficking is recognized in specific exceptions that allow legitimate police operations to engage in controlled illegal activity. The
 conduct here went beyond criminal illegality. There were no drugs introduced into Canada, but the illegal conduct is extremely
 offensive because of the violation of Canadian sovereignty without explanation or apology. One could suggest that the accused
 voluntarily went to the United States and that nobody forced him to purchase drugs there. However, a meeting in Canada was
 a condition precedent to any transaction by Licht and the DEA knew this. The cooperation of the RCMP could have been
 sought again but was not. Why this was not done is not explained. The situation is further exacerbated by the illegal entry into
 Canada.
 

      Conclusion

 [64]     The conduct of United States agents in this case is so egregious as to constitute an abuse of process to disentitle the
 requesting state from the assistance of this court. A stay of proceedings is ordered.

Updated:16 Aug 2002| Accessed:53370times