A judge has ruled that a homeless Indigenous man who sold drugs to an undercover police officer at the Coliseum LRT station was the victim of entrapment.

Provincial court Judge Donna Groves stayed proceedings against Roland McDonald, who pleaded guilty in April to selling one-third of a gram of methamphetamine to an undercover officer working with Operation Derailment.

In a written decision issued in September, Groves ruled Operation Derailment was flawed.

"I find that the Crown has not met its evidentiary burden of proving that the police were engaged in a bona fide investigation," Groves wrote.

Unlike other investigations that were better targeted at drug activity in specific locations, "Operation Derailment was more akin to a shotgun approach," the judge said in her decision.

"The hope was that if [the] Edmonton Police Service targeted drug activity on the LRT beat, they would reduce crime in general, and more specifically, violent crimes," Groves wrote.

"It must be remembered that a 'hunch' or 'feeling' will not suffice to form reasonable suspicion."

Edmonton police declined to comment on the case.

Operation Derailment was billed by police as a crackdown on drug trafficking on Edmonton's LRT system, which they hoped would lead to a decrease in violent crime. The three-month operation resulted in 40 people being charged with 135 criminal offences.

Though McDonald pleaded guilty to drug trafficking, his defence counsel, Damon MacLeod, successfully argued his client was a victim of entrapment.

Court heard that on Jan. 20, an undercover police officer, identified as Const. P, heard McDonald yelling about a backpack at the Coliseum LRT station. He approached, using the backpack as a conversation starter, and eventually asked McDonald to sell him drugs.

Police seized meth and drug paraphernalia from a man riding the LRT Friday Dec. 2

Some of the meth and drug paraphernalia seized during Operation Derailment on Dec. 2, 2016. (Trevor Wilson/CBC)

McDonald, who testified he suffers from alcohol and drug addiction issues, admitted he had used meth three to four hours prior to the meeting and was not completely sober. He does say his memory of that day was "pretty good." 

The officer testified he asked McDonald, "Can you do 30?" and McDonald replied that he could "do 20." At no time did the officer specify the drug. The exchange, the officer said, lasted no more than four minutes.

McDonald testified the officer tried to persuade him to sell him drugs, saying that McDonald should be able to relate to "wanting some and having none." McDonald said he agreed to sell the officer the one-third of a gram of meth he had left.

After selling the drug, McDonald was arrested on the spot and charged with trafficking methamphetamine.

No proof of drug trafficking

In her written decision, dated Sept. 20, Groves ruled the undercover officer didn't have reasonable suspicion to believe McDonald was trafficking drugs.

The judge also said Operation Derailment was not supported by data provided to the court.

Another officer, identified in court as Const. T, wrote the plan for the undercover operation and was instrumental in its implementation. The operation was designed to target and arrest people involved in the drug trade in and around the Central, Churchill, Stadium and Coliseum LRT stations.

Const. T had written the plan using crime statistics that he felt validated the undercover operation. They showed there had been 270 violent occurrences at LRT stations in 2015, and that 41 of them, or 15 per cent, had happened at the Coliseum LRT station.

In the same year, the statistics showed 26 reported drug offences at LRT stations. Only two of them, or about eight per cent, occurred at the Coliseum station.

"Based on this data, no correlation exists between drug offences and violence occurrences at the Coliseum LRT," Groves said in her decision.

'It must be remembered that a '"hunch" or "feeling" will not suffice to form reasonable suspicion.' - Judge Donna Groves

In his testimony, Const. T admitted the numbers in the report did not support his assumption that the Coliseum LRT station was a high drug-trafficking area.

"The numbers were based on pure speculation," MacLeod said.

Specific targets

During cross-examination, the undercover officer who bought the drugs from McDonald admitted the man "fit the description of someone who may be involved in the drug lifestyle."

The officer maintained it was not because he was Indigenous; rather, it was because of his backpack, loud talking, his hat and dirty clothes as "markers of someone involved with drugs."

Damon MacLeod

Damon MacLeod's clients are primarily low-income Indigenous people. He thinks they are unfairly targeted in operations like Operation Derailment. (Supplied/Damon MacLeod)

MacLeod said many of his low-income Indigenous clients, who are often in vulnerable positions due to intergenerational problems and subsequent coping mechanisms, get targeted — purposefully or otherwise — by police undercover operations.

"In my experience, police don't target people that look like me when they're doing undercover drug investigations," MacLeod said, adding he takes the LRT every day, wearing a suit and carrying a briefcase.

"It would never happen that an undercover officer were to approach me and try to buy some methamphetamine [from] me.

"They would approach my clients, and they do approach my clients, and that's reflected in the percentage of people who are incarcerated."

About one-quarter of inmates across Canada are Indigenous, even though Indigenous people make up about four per cent of the population.

Unnecessary crimes

MacLeod said police officers asking to buy drugs create crimes that wouldn't happen otherwise.

"Charging dispossessed people with criminal offences does absolutely nothing to address any of the underlying issues that are actually a problem in Edmonton," he said.

He added that these operations inflate arrest numbers by incarcerating people who would otherwise mind their own business.

"You could create a productive member of society instead of specifically targeting the most dispossessed and disenfranchised people that there are," he said.

"I suspect that what happened is that the police decided they were going to proceed with this operation regardless of whether or not there was a foundation and evidence to show that there was drug trafficking specifically happening on the LRT lines."

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