SCC rules on entrapment in dial-a-dope drug investigations

Police must establish reasonable suspicion that a suspected drug dealer on the other end of a telephone line is involved in drug trafficking before asking to buy drugs, the Supreme Court of Canada ruled on Friday.

In two cases that dealt with the scope of the entrapment defence, the police had received unsubstantiated tips that a phone number was associated with a dial-a-dope drug-trafficking operation, and then used it to buy drugs and arrest two men, Javid Ahmad and Landon Williams, who were later convicted of trafficking.

Chris Greenwood, Crown counsel on the case, says R. v. Ahmad is the first time Canada’s top court has considered the doctrine of entrapment in the context of dial-a-dope drug trafficking.

All nine justices dismissed Ahmad’s appeal. In a 5-4 split, Williams’ appeal was allowed, his conviction was overturned and his stay of proceedings reinstituted.

Though he says he is “very disappointed” for his client and of the view his client was improperly induced, Ahmad’s lawyer Michael Lacy added that the court agreed with his submission that the law of entrapment and need for a bona fide inquiry is important in any police investigation, including a dial-a-dope operation.

“The decision will restrict the police randomly calling people or acting on an unsubstantiated tip to invite people to commit criminal offences,” says Lacy, a partner at Brauti Thorning LLP in Toronto and former president of the Criminal Lawyers’ Association.

“This is an important circumcision of police powers and is part of the checks and balances that is necessary in a democratic society where the rule of law prevails.”

Lacy adds that the decision adds clarity to the law on entrapment, which was in a state of uncertainty due to differing Courts of Appeal rulings.

“The Supreme Court ruling restores the fundamental elements of the entrapment doctrine that had been arguably diluted by the Court of Appeal for Ontario,” he says.

In R. v. Mack, the 1988 SCC case which settled the law of entrapment in Canada, the court established two categories of entrapment. In one, the police provide a person an opportunity to commit an offence without first having a reasonable suspicion that person is already involved in criminal activity, or pursuant to a bona fide inquiry. In the other, though having a reasonable suspicion, the police go beyond providing an opportunity and induce the person to commit an offence.

Both Williams and Ahmad argued the police lacked a reasonable suspicion they were involved in criminal activity when they were asked to buy drugs.

In Williams’ case, before a reasonable suspicion was formed, the police initiated the illicit discussion when the officer said to Williams that an associate had “said you can help me out,” which the court understood as drug-trade parlance inferring an intention to buy. In Ahmad’s case, before suspicion was established, he asked “What do you need?” prior to the officer’s request and in doing so formed the suspicion that he was engaged in selling drugs. At the trial level, Williams had his charges stayed and Ahmad was convicted.

But the Court of Appeal for Ontario, which heard the two cases together, convicted both. The court looked to R. v. Barnes, the 1991 SCC case in which a police officer approached a person in an area known to be a location where drugs were sold, and prior to having a reasonable suspicion he asked a man to sell drugs to him.

In Barnes, the appellate court found that the police are entitled to provide an opportunity to commit crime to people associated with a location that is reasonably suspected to be associated with criminal activity. Justice William Hourigan wrote that a bona fide inquiry “is not necessarily limited to a particular geographic location,” and in the context of a dial-a-dope scheme the police are engaged in a bona fide inquiry if a phone line is reasonably suspected to be used in the scheme.

Writing for the majority of the Supreme Court of Canada in Ahmad, Justices Andromache Karakatsanis, Russell Brown and Sheilah Martin found that although a phone number can count as a place over which police form a reasonable suspicion, it is not the same as a “public physical location.” Police must “carefully delineate and tightly circumscribe” virtual locations in which police carry out dial-a-dope operations and provide opportunities to commit crimes, the court found.

“The virtual space must be defined with sufficient precision in order to ground reasonable suspicion. Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows.”

The court added that a “bare tip from an unverified source” that someone is dealing drugs from a particular phone number “cannot ground reasonable suspicion.”

Four justices — Chief Justice Richard Wagner and Justices Michael Moldaver, Suzanne Côté and Malcolm Rowe — dissented in allowing Williams’ appeal. The doctrine of entrapment formulated in Mack and Barnes is in need of a “revised framework” and has not withstood the test of time in maintaining the balance between effective law enforcement and citizens’ interest in being left alone by the police, wrote Justice Moldaver.

In modern dial-a-dope operations, there is a fine line between “taking an investigative step” and “providing an opportunity to commit an offence,” the latter requiring reasonable suspicion. Rather than having courts examine telephone conversations between undercover police and suspected drug dealers to determine if a line was crossed, the focus should be on whether society would find the officer’s conduct tolerable in that context, Moldaver writes.

The dissent proposed revising the bona fide inquiry prong of Mack’s reasonable suspicion test to refocus it on “its principled origin: abuse of process.” They suggested three requirements: the investigation must be motivated by genuine law enforcement purposes; the basis for the investigation must be factually grounded — more than a “mere hunch”; and, “their investigation must have been directed at investigating a specific type of crime within a tightly circumscribed location (whether physical or virtual).”

Whether the precision of the location meets the threshold should be determined by “reference to the overarching question entrapment poses”: whether society would see the investigation as abusive.