R. v. Ahmad, 2020 SCC 11
ENTRAPMENT - DIAL-A-DOPE - REASONABLE SUSPICION
What You Need to Know
When investigating a dial-a-dope scheme based on a bare tip, police must form reasonable suspicion a) before calling the number or b) during the call, but before offering an opportunity to traffic narcotics.
Determining whether police formed reasonable suspicion before offering an individual to commit a crime is a “product of strict judicial scrutiny, taking into account the constellation of factors that indicate involvement in drug trafficking.” (para 69
If police failed to form reasonable suspicion before offering an individual an opportunity to traffic drugs, a stay of proceedings on the basis of entrapment is justified.
The Doctrine of Entrapment
Some crime is difficult to detect because it is “victimless” or “consensual”; for example, illegal gambling or drug trafficking. In R v Mack, the Supreme Court of Canada noted that in light of this, “police must be given considerable latitude in the effort to enforce the standards of behaviour established in criminal law.” (p. 916-917) In certain circumstances, it is in the public interest for the police to use traps or other proactive investigative techniques to prevent and suppress crime. However, there are limits to what police can do.
By recognizing the doctrine of entrapment, the Court in Mack made it clear that the judiciary “cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state.” (p. 942) Therefore, even with a guilty verdict, the only appropriate remedy in cases where individuals were entrapped is a stay of proceedings to “preserve the purity of administration of justice.” (p. 942)
In delivering the Court’s unanimous judgement in Mack, Justice Lamer explained that there are two forms of entrapment: (1) random virtue testing, and (2) improper inducement. The first occurs when “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry.” (p. 964) According to the Court:
The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis (p. 965).
The second form of entrapment occurs when police, “having such a reasonable suspicion or acting in the course of a bona fide inquiry… go beyond providing an opportunity and induce the commission of an offence.” (p. 964-965)
The entrapment framework articulated in Mack was affirmed in R v Barnes. The Supreme Court provided further guidance regarding the first form of entrapment by noting:
The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry.
Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:
(a) the person is already engaged in the particular criminal activity, or
(b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring (R v Barnes, p. 463).
The Case - R v Ahmad
In R v Ahmad, the Supreme Court of Canada considered for the first time the application of the first branch of the entrapment doctrine in the context of suspected “dial-a-dope” scheme investigations. The Court was “asked to determine when and how reasonable suspicion is established when an officer receives a tip or information that a phone number may be used for drug dealing.” (para 965)
Facts & Procedural History
In two separate cases, police received unsubstantiated tips about “dial-a-dope” schemes; i.e. operations where drug dealers connect with customers by phone or text. After calling the phone numbers that were provided to the police and having conversations with two individuals, officers arranged in-person meetings to purchase drugs. At these meetings, Javid Ahmad and Landon Williams were arrested and charged with drug related offences.
At their individual trials, both Mr. Williams and Mr. Ahmad raised the defence of entrapment and applied for a stay of proceedings. In Mr. Ahmad’s case, the trial judge found that “[t]he steps in the conversation that preceded the offer were legitimate investigative steps that led to a reasonable suspicion, not opportunities for the applicant to commit a crime he would not have committed otherwise.” As the tip was determined to have been sufficiently corroborated, the trial judge held that the police did not entrap Mr. Ahmad into committing a crime. In Mr. Williams’ case, the trial judge found that police did give him an opportunity to commit a crime without reasonable suspicion that he was dealing narcotics. Thus, the trial judge held that Mr. Williams was entrapped and granted a stay of proceedings.
Due to their numerous similarities, Mr. Ahmad’s appeal and the Crown’s appeal of Mr. Williams’ case were heard together by the Ontario Court of Appeal. In both cases, the court found that there was no entrapment.
Mr. Ahmad successfully applied to the Supreme Court for leave to appeal. Mr. Williams appealed to the Court “as of right.”
Holding - SCC
In a 5-4 ruling in Ahmad, the Supreme Court affirmed that the doctrine of entrapment and its reasonable suspicion standard are applicable in the context of suspected “dial-a-dope” scheme investigations.
Applying the doctrine to the facts of both cases, the majority of the Court reversed the decision of the ONCA and affirmed the original rulings of the trial judges.
Analysis
Issue #1- Can a phone number — a virtual place — qualify as a location over which police may form reasonable suspicion?
A PHONE NUMBER CAN QUALIFY AS A PLACE FOR THE PURPOSES OF THIS DOCTRINE (PARA 34).
A virtual location (including a phone number) is not the same as a public physical location. A conversation over a phone (as well as text, social media messaging and email) attracts a higher expectation of privacy than a conversation in a public space.
Technology and remote communication significantly increase the number of people to whom police investigators can provide opportunities, thereby heightening the risk that innocent people will be targeted. Online anonymity allows police to increasingly fabricate identities and “pose” as others to a degree that would not be possible in a public space like the Granville Mall. And they can do so anytime and anywhere, since cell phones are a 24/7 gateway into a person’s private life (para 37).
Due to the unique concerns raised by technology and the enhanced interest of individuals in being left alone in virtual spaces, there must be limits to the scope of the police investigations into these spaces.
In balancing the individual and public interests, the Court held that virtual locations “must be defined with sufficient precision in order to ground reasonable suspicion” (para 41). A single phone number, for example, is sufficiently precise and narrow for these purposes.
Additionally, police can conduct investigations into virtual spaces other than phone numbers. These virtual spaces must be defined narrowly and with precision.
“In our view, entire websites or social media platforms will rarely, if ever, be sufficiently particularized to support reasonable suspicion. To permit police to target wide virtual spaces is inconsistent with Mack and its threshold of reasonable suspicion, and disregards that legitimate communities exist as much online as they do in the physical world.” (para 43)
ISSUE #2- HOW DOES REASONABLE SUSPICION APPLY TO DIAL-A-DOPE INVESTIGATIONS?
WHILE A “BARE TIP FROM AN UNVERIFIED SOURCE” DOES NOT PROVIDE A SUFFICIENT BASIS FOR REASONABLE SUSPICION, A “SUFFICIENTLY CORROBORATED” TIP CAN. (PARA 50)
The reasonable suspicion standard:
is an objective assessment that
protects individuals’ interests and rights (paras 45 and 57)
preserves the rule of law by ensuring courts can meaningfully review police conduct. (para 45)
“is not ‘unduly onerous’” (para 45, citing Mack)
“as a lower standard than reasonable grounds, it allows police additional flexibility in enforcing the law and preventing crime.” (para 45)
“requires only the possibility, rather than probability, of criminal activity” (para 46, citing Chehil)
justifies police engaging in intrusive conduct and thus, is “subject to “rigorous,” “independent” and “exacting” judicial scrutiny” (para 46, citing Chehil)
requires for suspicion to be “focused, precise, reasonable, and based in “objective facts that stand up to independent scrutiny”” (para 46, citing Mackenzie)
requires “a “constellation of objectively discernible facts” giving the officer “reasonable cause to suspect” that a certain kind of crime was being committed by a particular person or in a particular place.” (para 46, citing Simpson, Kang-Brown, etc.)
“is also individualized, in the sense that it picks an individual target — whether a person, an intersection or a phone number — out of a group of persons or places.” (para 48)
To meet the reasonable suspicion standard, a tip about a phone number being used to deal drugs must be “sufficiently corroborated.” According to the Court, “[s]uch corroboration must suggest that the ‘tip [is] reliable in its assertion of illegality, [and] not just in its tendency to identify a determinate person’” (para 50, citing J. L.).
Police can take number of steps to “sufficiently corroborate” a tip a) before calling the number (see paras 51-53) or b) during the call, but before presenting an individual with an opportunity to commit a crime (see paras 54-55). The former is preferable because “in placing the call without reasonable suspicion, [police] are walking on thin ice, having already intruded upon the private life of their interlocutor.” (para 54)
Issue #3-How Should Courts Review the Words Spoken During a Police Call to the Target?
Unless police are able to corroborate a tip before placing a call and form reasonable suspicion, courts are required to review the words of the conversation that took place during the call.
Reviewing conversations between undercover officers and their targets in the dial-a-dope context is the inevitable consequence of accepting that the police must have reasonable suspicion before offering an opportunity to commit an offence. (para 59)
Reasonable suspicion — like any level of investigative justification — can justify an action only on the basis of information already known to police (para 60)
Notably, “[i]n dial-a-dope cases, conversations are a means of forming a reasonable suspicion and the means of committing the offence itself.” (para 61) The language of these conversations must be carefully scrutinized by courts to ensure that an opportunity to traffic was provided after reasonable suspicion was formed.
Issue #4- What constitutes provision of an opportunity to traffic in drugs during a phone call?
The determination of whether a police action constitutes an opportunity to commit an offence is informed both by the definition of the offence and the context in which the action occurred. (para 63)
A provision of an opportunity to traffic can occur during a call, but “only when the terms of the deal have narrowed to the point that the request is for a specific type of drug and, therefore, the target can commit an offence by simply agreeing to provide what the officer has requested.” (para 66)
Read the full decision here.
Note: This summary was written by Yael Kogan, a third-year student at Osgoode. During the school year, Yael works as a caseworker with the Innocence project. This summer, Yael is gaining experience in criminal law at Franklin Lyons Criminal Defence. This post was copy edited by Sara Little.