Entrapment – Dial-A-Dope

R v Li

Cheung Wai Wallace Li appealed by right, pursuant to Section 691(2)(B) of the Criminal Code, a decision of the Court of Appeal for British Columbia lifting his stay of proceedings and remitting the matter back for sentencing. The Supreme Court of Canada heard the appeal on June 11, 2020 and rendered an oral decision that day dismissing the appeal.

Facts

Mr. Li pled guilty at trial, but the judge entered a stay based on the doctrine of entrapment.

The Court of Appeal lifted this stay and remitted the matter back for sentencing.

Issue for the Court

Was Mr. Li entrapped?

Supreme Court of Canada Decision – Coram (Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.)

Decision

Mr. Li’s appeal to the SCC was dismissed as entrapment was not made out. The Court entered a guilty verdict and remitted the matter for sentencing.

The Court affirmed and reiterated their recent decision in Regina and Ahmad by stating that police are required to meet the standard of ‘reasonable suspicion’ prior to offering to an individual or phone number an opportunity to commit a crime in dial-a-dope operations.

Analysis

Neither court below had the ruling in the Ahmad decision available to them when making their decisions.

The police had reasonable suspicion in relation to the phone number as being used to deal drugs prior to calling Mr. Li.

As this was a British Columbia case, the officers used what is known as a “Swan sheet” to identify and record steps taken to ensure reasonable suspicion was present or to verify and corroborate the tip.

The tip received was in relation to a phone number operating a dial-a-dope cocaine business, the exchanges/deals occurring at a specific mall, and that the dealer drove a tan Honda Odyssey with a particular recorded license plate.

Police corroborated the tip by confirming connections between the vehicle and plate, along with five other vehicles, to a suspect with prior history of drug dealing.

Commentary

This was a very brief four-page decision but clearly shows that steps taken to corroborate the tip can form reasonable suspicion and ensures the police are not acting on a mere whim. What is especially helpful and clearly useful as a police practice is the use of ‘Swan sheets’ in BC that require the police to identify what it is that they did or believed to form their reasonable suspicion. The use of such sheets or of a similar practice here would help to avoid situations as seen in Ahmad where the court has to parse through specific language and conversations to then decide on seemingly arbitrary lines where entrapment exists and where it does not.

Something I wonder, however, is if despite the officer having reasonable suspicion to make the call, during the course of the conversation it may become apparent to the officer it is not the person or operation they initially thought but then proceed to entrap the person anyways. While this would need to arise on the particular facts of a case and may not ever happen, it is still something to be alive to the possibility and that perhaps a cursory look at the conversation should be required or at least done by defence counsel in every case.