Court of Appeal Entrapment – Dial-A-Dope - R v Ahmad
This case consisted of two separate cases, decided at the same time Javid Ahmad was convicted at trial of one count of possession of cocaine for the purpose of trafficking and two counts of possession of the proceeds of crime as entrapment was not found to apply. Landon Williams charges were stayed at trial due to entrapment having been found to apply to him. The Ontario Court of Appeal heard their appeals together finding that entrapment did not apply to either case and dismissed Mr. Ahmad’s appeal while allowing the Crown’s appeal of Mr. Williams. The appellants’ appeal to the Supreme Court of Canada on October 11, 2019 resulted in a judgement rendered on May 29, 2020 in which Mr. Ahmad’s case was dismissed, finding that he was not entrapped, while Mr. Williams’ appeal was allowed, finding that he was entrapped.
Facts
In Mr. Ahmad’s case, an officer armed with an unsubstantiated tip regarding drug activity associated with a phone number, offered to buy drugs during a call to the number. Specifically, the officer received information from another officer that an individual was running a dial-a-dope. The officer called the number based on his understanding that the tip came from a confidential source but did not further inquire into the source or attempt to corroborate the information first.
In Mr. Williams’ case, an officer armed with information provided by another officer who received information from a confidential source of unknown reliability, that a person named “Jay” (identified as Mr. Williams) was a suspected drug dealer. No information was available as to the specifics of the tip or in terms of how Mr. Williams was identified. The officer again did not attempt to investigate the tip or corroborate the information further and despite the officer having previous interactions and history with Mr. Williams in relation to trafficking, she did not associate the name “Jay” to him. Two separate drug transactions were made with Mr. Williams and he was arrested a month later.
At trial, Mr. Ahmad was found not to have been entrapped since the police had already corroborated the tip prior to giving him the opportunity to commit the offence of trafficking. He was “conviction of one count of possession of cocaine for the purpose of trafficking and two counts of possession of the proceeds of crime”. On the other hand, in Mr. Williams’ case, he was found at trial to have been entrapped as he was given the opportunity to traffic before the police had formed reasonable suspicion and a stay was entered as a result.
The Court of Appeal heard the two cases together. Mr. Ahmad’s appeal was dismissed. The Crown’s appeal of Mr. Williams was allowed. The Court of Appeal held that entrapment did not apply to either appellant. The court found that reasonable suspicion can apply to a phone number itself for whoever is on the end of the line and do not need suspicion regarding a particular person on the line. Justice Himel (ad hoc) concurred in the decision however he disagreed with the distinction made between reasonable suspicion of a phone number versus reasonable suspicion of a particular individual on the phone.
Issues for the Court
In relation to suspected dial-a-dope operations, the SCC was asked to delineate “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”? (at paragraph 3 of the decision).
The sub-issues discussed in the case are as follows:
- “Can a phone number – a virtual place – qualify as a location for the purposes of entrapment?” – The SCC answered this question in the affirmative.
- “What circumstances can give rise to reasonable suspicion in the dial-a-dope context?” - The SCC held that a bare unsubstantiated tip alone is insufficient. A place, number, or tip must be sufficiently particularized, individualized, and based in objective facts.
- “How should courts review the conversation between police and the accused in deciding whether reasonable suspicion has been established and when the opportunity to offend was offered?” – The SCC held that “parsing” and scrutiny of specific language in conversations may be required to determine if and when reasonable suspicion was formed.
- “What constitutes provision of an opportunity to traffic in drugs during a phone call?” – The SCC held that sufficient proximity between the offer and the positive answer having enough specificity to meet the requisite elements of the offence. Agreement on a type or amount of drug will suffice.
Decision
The SCC agreed with the trial judges in each case. Mr. Ahmad was not entrapped, and his appeal was thus dismissed. Mr. Williams on the other hand was entrapped and his appeal was allowed.
Justices Karakatsanis, Brown and Martin held that entrapment occurs through one of two ways when police abuse process by attempting to ‘trap’ people into committing offences for investigative purposes. The first method of entrapment occurs when police act to provide an opportunity to commit an offence without first having reasonable suspicion that the person is already engaged in criminal activity or act in bad faith in doing so. In other words, what is a legitimate form of investigative technique for police is to form reasonable suspicion for a person committing crime or as part of a ‘bona fide’ inquiry that at a specific location there is suspected criminal activity. The term ‘bona fide’ is meant to show a threshold for reasonable suspicion in a location (as opposed to a person) and should not be treated as another ground upon which to entrap. The second method of entrapment is when police go beyond merely providing an opportunity to commit the offence and instead actually induce the person into its commission. Such requirements are meant to protect individuals from manipulative investigative techniques, from randomly testing people’s virtue, or from creating crime that otherwise may not have occurred. This approach to entrapment was not changed by the court.
If entrapment applies, a stay of proceedings is entered so as to not bring the administration of justice into disrepute by allowing such an abuse of process to lead to a conviction.
The court stated that reasonable suspicion is required when police use investigative techniques giving suspects an opportunity to commit an offence such that police are not allowed to offer over the phone a chance to commit an offence without the requisite reasonable suspicion that that person on the phone or the number is already engaged in criminal activity.
On point is the quote, “just as the hunch or mere suspicion of one police officer cannot become something more simply because it was shared with other officers, a source’s hunch does not transform into something more once placed into the hands of the police” (paragraph 32).
Response to Sub-Issue 1: A phone number is sufficiently precise and specific for an officer to be able to raise a reasonable suspicion; as opposed to other technological/online spaces or platforms that may be too large or vast to be capable of supporting a reasonable suspicion. An example of a virtual space too broad to support reasonable suspicion for example is an entire website or social media platform. The court reiterated the importance placed in Regina and Barnes (Barnes) that the reasonable suspicion in a location be “sufficiently particularized” so as not to give the police too much leeway in intruding into people’s privacy, testing their virtue, or encouraging or increasing crime. “We say, to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime” (paragraph 40).
Certain factors can be looked at to ensure the reasonable suspicion in something or a location is sufficiently narrow so as not to be overbroad. These factors include the seriousness of the crime, time of day, amount of activities and people potentially affected, the existence of potential racial profiling, stereotyping, or vulnerabilities, the expectation of privacy, the importance of freedom of expression, and the potential ability to use other less intrusive investigative.
Response to Sub-Issue 2: Reasonable suspicion is an objective standard that is lower than reasonable grounds and requires only a possibility, not even probability of criminal activity. The basis of the suspicion must be “based in objective facts that stand up to independent scrutiny” and has been alternatively defined by the SCC as a “constellation of objectively discernible facts”. Hunches and intuition are not enough to form reasonable suspicion but an officer’s particular knowledge and expertise can help alert them to or identify potential criminal activity and thus must be taken into account. Reasonable suspicion again must be sufficiently specific so as to focus on a particular person/place/ number out of groups of such things and it is this individualization that helps mitigate the previously identified concerns with entrapment.
Therefore, a tip, if corroborated, can rise to the level of reasonable suspicion. The tip, however, must not just create this suspicion in terms of identifying an individual, but instead identifies with reasonable suspicion what the criminal activity is. When investigating and receiving tips in relation to dial-a-dope operations, many actions and considerations can be taken or made to corroborate the tip before resorting to actually calling the number in question based on the bare tip alone. The court made clear that a bare unsubstantiated tip alone is not sufficient to raise a reasonable suspicion. An officer may however walk on thin ice and may call a number without reasonable suspicion but acquire such suspicion throughout the call before offering the opportunity to commit a crime (paragraphs 50-54).
Response to Sub-Issue 3: It is necessary to review the specific language and conversation had between the officer and the target in order to determine if reasonable suspicion was present prior to offering an opportunity to commit crime. This ensures that police do not go on fishing expeditions to search for conduct that may then affirm or create suspicion where none was present to begin with.
Response to Sub-Issue 4: In determining if an officer provided an opportunity to commit an offence in dial-a-dope situations, courts must look for a positive answer to an officer’s question that could meet the requisite elements of an offence. In other words, did the officer say something that offered the target an opportunity to traffic?
Sufficient proximity between the offer and the actual commission of the offence is required. In the dial-a-dope context, such proximity is met when an officer asks something to which a positive answer/reply would result in the commission of an offence. To exemplify this, the court stated that asking if the target sells drugs is not an opportunity to traffic, however, the point at which a drug deal is sufficiently narrowed to the type or quantity of drug, the target may then meet the elements of trafficking by confirming or agreeing to the deal. The court also confirmed that the entrapment occurs at the time of agreement to commit the offence/sell drugs, not at the time of the actual transaction.
The crux of all of the above is that reasonable suspicion must be formed before an offer to commit an offence is made, otherwise, entrapment is made out.
Analysis
Ahmad: Mr. Ahmad was not entrapped. The officer was armed with a tip that a “Romeo” was running a dial-a-dope. During the conversation, the officer stated that a said person told him you (Romeo) “can help me out”? Mr. Ahmad replied asking what the officer needs and they two agree on “2 soft”. The opportunity/offer to traffic was in asking for “2 soft”, not in asking if Mr. Ahmad could “help him out” as a positive answer to this second question would not meet the elements of trafficking (due to a lack of proximity and specificity) (paragraphs 72-73).
Therefore, at the time of asking for “2 soft” (giving the opportunity/offer), the officer had the information from the tip and the responses Mr. Ahmad provided during the conversation to form reasonable suspicion with. Mr. Ahmad did not deny that he went by the name Romeo and the required suspicion formed when Mr. Ahmad asked, “what do you need”. Mr. Ahmad engaged in and understood trafficking slang, thereby corroborating the tip that it is reasonably possible Mr. Ahmad is engaged in trafficking before he provided the opportunity by asking for “2 soft”.
It should be noted however that the court described this situation as “an extremely close call” and recognized that the words “what do you need” and “you can help me out” could be innocent and unrelated to trafficking however they delineate this case by virtue of the fact that police are not required by the “reasonable suspicion” standard to weed out innocent explanations and that Mr. Ahmad did not deny being “Romeo”, nor was he confused or inquisitive as to who “Matt” was. These factors when considered in their totality, support a “reasonable possibility” that Mr. Ahmad was engaged in criminal activity (running a dial-a-dope to be specific) (paragraph 76).
Williams: Mr. Williams was entrapped. Police, armed with a tip that “Jay” was running a cocaine dial-a-dope, created and provided the officer with an information package identifying “Jay” as Mr. Williams, who had a previous arrest for trafficking, along with a location and physical description. During the conversation, the officer stated “said you could help me out, I need 80”, which the court determined to be an opportunity to traffic cocaine (80 as slang for a dollar amount) and the offence made out when Mr. Williams confirmed the deal/transaction with a response of “okay”.
The distinction between Mr. Williams and Mr. Ahmad is that unlike in Mr. Ahmad’s case, there was nothing prior to the offer in Mr. Williams’ conversation to suggest dial-a-dope trafficking. No corroboration occurred during the prior conversation to confirm the potential this number was indeed a dealer. The mere fact that Mr. Williams confirmed “Jay” was his name was simply corroboration of identity and not of the offence of trafficking and thereby was not sufficient to reach the level of reasonable suspicion. Further, the problem with identity here was that the police assumed the tip regarding “Jay” was actually about Mr. Williams without any confirmation that the tipster knew/thought the same.
Justice Moldaver wrote the decision for the dissent (Wagner C.J. and Côté and Rowe JJ. concurring). The dissent focused on the need to provide police with “substantial leeway” in investigating increasingly technological crimes such as dial-a-dopes. They state that the second “prong” in the first method of entrapment relating to a bona fide inquiry should be defined as “a factually grounded investigation into a tightly circumscribed area, whether physical or virtual, that is motivated by genuine law enforcement purposes” (paragraphs 89-90).
They critique the majority for using a “parsing” and “fine line” approach in analyzing the conversations that leads to artificial and impractical results that are far removed from the simple purpose of avoiding an abuse of process. Abuse of process is a high bar intended to avoid police conduct that society would see as intolerable; yet the distinction between Mr. Ahmad’s case being acceptable but Mr. Williams’ not being allowed would not be a justified or sensible distinction to the reasonable person.
Instead, the bona fide inquiry prong is appropriate in dial-a-dope cases to allow police to investigate this increasingly virtual crime and to offer opportunities to commit offences to random individuals so long as they appropriately define an area with sufficient precision and reasonable suspicion of a type of crime in that area. Therefore, in light of this, the cases at bar do not meet the definition of entrapment. Police need not have individualized suspicion to make a call and offer an opportunity to commit crime.
Thus, police are acting in the course of bona fide inquiry when:
- Their investigation was motivated by genuine law enforcement purposes (i.e. not in bad faith);
- They had a factually grounded basis for their investigation (i.e. beyond a “mere hunch” but not reasonable suspicion); and
- Their investigation was directed at investigating a specific type of crime within a tightly circumscribed location (whether physical or virtual).
In relation to this last step, certain factors are to be considered including the severity of the crime being investigated, the number of people potentially impacted, the type of location, and the intrusiveness of the investigative technique.
The minority agreed with the Court of Appeal that neither appellant was entrapped by virtue of the police being engaged in a bona fide inquiry. These are not examples of “clearest cases” of entrapment required by Regina and Mack to result in a stay. The police were motivated by “a genuine law enforcement purpose”, there was no “bad faith”, they had a “factually grounded basis for investigation”, and the inquiry into a phone number (a virtual location) in a dial-a-dope operation was “tightly circumscribed” (paragraph 174).
The minority would have dismissed both appeals.
Commentary
Overall, the court attempted to make a very nuanced, delicate, and balanced approach to the issue of entrapment in cases of dial-a-dope investigations whereby the issue of increasing technological sophistication of such operations make it more and more difficult for officers to investigate yet the other side of the coin is that it also makes it more and more intrusive on the private lives of individuals who may be the targets or subject to officer’s presented opportunities to commit crime. The court appeared generally very alive to this fact and was critiqued by the minority for doing so.
The crux of my critique of this decision, however, is that while the court says bare unsubstantiated tips used as a basis to phone numbers is not enough to constitute reasonable suspicion and a level of particularized or individualized precision is required; yet at paragraph 54 the court then seems to backtrack by stating officers can actually call without reasonable suspicion as long as they acquire the reasonable suspicion at some point during the call prior to making the offer to commit crime. Of course the court is correct in stating that reasonable suspicion should be had prior to making the opportunity available to the target, however, this assertion appeared to water down their position and now allows the very thing they aimed at preventing – the police having unverified or uncorroborated information and make fishing calls looking for a potential bite. Such a level of leeway and freedom in the police ability to investigate is too expansive given the general privacy rights and expectation citizens in Canada have to not be subject to unjustified police oversight or intervention.
As an example of the problematic approach of an officer not having formed reasonable suspicion prior to making the call is that it can lead to the dubious distinction between the outcomes in these two cases and the “parsing” the court did in analyzing the specific language of each call. Such a difficult and potentially arbitrary approach would not be necessary should the bar be set that reasonable suspicion cannot be gained during the call and must be formed prior.
This is a step in the wrong direction and such an allowance will give police free reign to continue as they have before, calling numbers without verifying the substantiveness or accuracy or the information or source. All that would be required to obtain sufficient reasonable suspicion would be to take steps prior to making the call to corroborate and verify the accuracy prior to making a fishing type call to a phone number. The court even recognized and identified an approach in British Columbia whereby police have to fill out a form (“Swan sheet”) prior to calling that identifies the steps taken to gain reasonable suspicion. The same way that citizens do not expect police to arrive on their doorstep and begin asking questions unless there is a legitimate concern, citizens do not expect police to call them (unidentified as police nonetheless) and begin asking questions. It is in the interests and citizens of all, even at the expense of leeway in police investigation, to not have undercover police calling them at any time and place to be questioned. If their interest is genuine in fighting trafficking (or any type of crime to which entrapment could apply), then it is in line with that goal to take prior steps to ensure their source or information is sufficient so as to not waste police time and resources and to ensure the greatest accuracy and outcomes possible.
Counsel Michael Lacy in this case commented in an article for Canadian Lawyer Mag that he despite being disappointed for his client, Ahmad, he believes “the decision will restrict the police randomly calling people or acting on an unsubstantiated tip to invite people to commit criminal offences”. I would agree that it should prevent police from making offers to commit without reasonable suspicion but the judgment leaves it open for police to still call prior to having formed that suspicion, an action that goes too far in trenching on individuals privacy.
More in agreement with my view is the B.C. Civil Liberties Association’s (intervenor) submission that “even minimal state interference can become intrusive and unconstitutional when it is used over many people with little justification. For example, it would be highly intrusive to permit police to send a message to every person with a posting on a website such as Craigslist in an attempt to tempt them to deal in stolen property”.
https://www.cbc.ca/news/canada/british-columbia/supreme-court-drug-entrapment-1.5591071
My sense is that given the different opinions between the majority and the dissent on how much privacy and protection is required versus how much leeway police should have, is far from settled and I foresee more litigation on this front.