Reasonable Suspicion Required: The SCC’s Approach to Entrapment in R v Ahmad

On May 29, 2020, the Supreme Court of Canada (SCC) released its much-anticipated decision dealing with the law of entrapment in the cases of R v Ahmad and R v Williams heard together last fall. The majority ruling provides some clarity over how the entrapment framework is to be applied in  a police drug investigation. 

I. Facts

Both cases involve police investigations into “dial-a-dope” schemes in Toronto. Dial-a-dope schemes are a way to distribute illicit drugs. The scheme is analogous to a pizza delivery. A consumer calls her dealer requesting an amount and type of drug. The parties agree on both a price and a location to meet for the drug transaction. Police often investigate these schemes by calling potentially suspicious numbers and attempting to purchase drugs. This technique gives rise to entrapment issues because it involves the state providing a person an opportunity to commit a crime that they might not otherwise have committed. 

The facts of Ahmad and Williams are strikingly similar – the police made a call, an opportunity to traffic drugs was provided, an in-person exchange of drugs for money took place, then the appellants were arrested and charged with drug-related offences. In both cases, the information the police had prior to placing the call amounted to: (1) a name; (2) a phone number; (3) an allegation that the person behind this number was dealing drugs. Crucially, in both cases, this information came from anonymous, unsubstantiated tips of uncertain reliability. Despite these similarities, the majority of the SCC found that Mr. Williams was entrapped but Mr. Ahmad was not.

II. The Law of Entrapment

As the SCC set out in R v Mack, entrapment can be made out in two ways:

1. 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 [(“opportunity-based entrapment”)];
2. although having such a reasonable suspicion or acting in the course of a bona fide inquiry, [the authorities] go beyond providing an opportunity and induce the commission of an offence [(“inducement-based entrapment”)].

These appeals are concerned with the first branch of the doctrine – that authorities must not provide an opportunity to commit an offence without acting with reasonable suspicion or as part of a bona fide inquiry. As the SCC further developed in R v Barnes, the police will be acting as part of a bona fide inquiry when their investigation is “directed at an area where it is reasonably suspected that criminal activity is occurring.” The burden is on the accused to prove entrapment on the balance of probabilities after the Crown has proven guilt beyond a reasonable doubt. 

The Mack court deemed entrapment to be a specific instantiation of the abuse of process doctrine. The basic idea is that when an accused is convicted of an offence that is the work of the state rather than legitimate law enforcement, judicial condonation of the impugned state conduct will bring the administration of justice into disrepute. It is simply not something that society can tolerate.

III. Reasoning of Lower Courts and the SCC:

Both trial judges analyzed the issue by paying close attention to the specific words used on the phone call in order to determine whether the police had reasonable suspicion before the offer was made. The Ontario Court of Appeal (ONCA) unanimously held that there was no entrapment in either case, albeit with two separate judgments. The majority of the ONCA found that the police did not have individualized reasonable suspicion that the appellants were engaged in drug trafficking, but they did have reasonable suspicion that the phonelines were associated with drug trafficking. This made the police action in each case part of a bona fide inquiry. Justice Himel, concurring in result, was of the view that the police had reasonable suspicion that the appellants were dealing drugs and disagreed with the majority’s position that it was logical to distinguish between reasonable suspicion over a person and reasonable suspicion over a phone. 

At the SCC, the judges were split 5:4. The majority decision – delivered by Justices Karakatsanis, Brown, and Martin, and joined by Justices Abella and Kasirer – agreed with the trial judges that Mr. Williams was entrapped but Mr. Ahmad was not. The majority also agreed with Justice Himel that in the dial-a-dope context, information about a person and information about a location (or phone line) is typically a distinction without a difference. The ultimate question to be asked is: “are there objective factors supporting a reasonable suspicion of drug trafficking by the individual answering the cell phone when police provide the opportunity to commit such a crime?”

The majority’s approach relied heavily on the precise words used on the phone call, as indicated in the following table. 

For the majority, Mr. Ahmad’s response of “What do you need?” disclosed a reasonable possibility that he was engaged in drug trafficking and at that moment reasonable suspicion crystallized. On the contrary, Mr. Williams’ responses of “Yeah”, “Who is this?”, and “Vinny who?” – the only words spoken by him prior to the opportunity being offered – provided no confirmation that he was using the phone to sell drugs. 

In dissent, Justice Moldaver takes issue with the approach taken by lower courts, and the majority in this case, that distinguishes between “investigative steps” and presenting an “opportunity”. It requires courts to parse undercover calls to determine whether the accused was entrapped. Such a distinction, for Justice Moldaver, is both artificial and ignores the connection between entrapment and the abuse of process doctrine. His solution is to revise the bona fide inquiry prong such that the police are not required to have reasonable suspicion over a location prior to providing a person with the opportunity to commit a crime.  

IV. Discussion

The majority’s decision provides some much-needed clarification of the law of entrapment in the dial-a-dope context, but does little to build upon or clarify the general principles underlying the doctrine. This can be seen by examining the following three questions: (1) Is entrapment still grounded in the abuse of process doctrine?; (2) Where does this decision leave the bona fide inquiry exception; and (3) How will this decision impact police investigations? Overall, the decision is welcomed as it should cause police forces across Canada to increase their efforts in obtaining reasonable suspicion prior to providing persons with the opportunity to commit a crime. 

(1) Is entrapment still grounded in the abuse of process doctrine?

At risk of oversimplification, the disagreement between the majority and the dissent boils down to whether society can tolerate the conduct of the police in these cases. Justice Moldaver was of the view that not only is it tolerable, but it is precisely what society would expect from the police in this context. The majority, on the other hand, found that society requires the police to have reasonable suspicion before offering a person the opportunity to commit a crime.

From a more technical standpoint, Justice Moldaver’s issue with the majority’s approach is that its fixation on reasonable suspicion causes it to undertake an analysis that is entirely disconnected from the doctrine supposedly underlying entrapment – abuse of process. There are really two strands to his argument. Justice Moldaver takes issue with the majority distinguishing between “investigative steps” and presenting an “opportunity”. It requires a parsing of the specific language used on the phone call by the undercover officer. For example, how different is it for an officer to say “can you help me out?”, which is merely an investigative step, and “I need 80”, which is providing an opportunity? Such an approach, one can argue, is unprincipled, impractical, and artificial. 

Second, Justice Moldaver points out the oddity of finding that the police conduct in Mr. Williams’ case was an abuse of process – and thus conduct that society cannot tolerate – but the conduct in Mr. Ahmad’s case was not. Justice Moldaver describes an abuse of process as state conduct “that “violates our notions of ‘fair play’ and ‘decency’ and which shows blatant disregard for the qualities of humanness which all of us share””. It indeed seems strange for the conduct in these appeals to fall on either side of that line, given their similarity factually. 

The strength of both of these critiques depends on whether it is truly an abuse of process to allow the police to provide someone with an opportunity to commit a crime without reasonable suspicion. If it is, then Justice Moldaver’s first problem falls away because a finding of reasonable suspicion would be necessary despite how dubious it might seem. It should also explain the disparity in the two outcomes, unless the majority erred in applying the reasonable suspicion standard. 

However, answering this question is inherently difficult to the vagueness and flexibility of the abuse of process doctrine itself.  Whether something violates our notions of fair play and decency is a normative question. An individual’s assessment of the fairness of police conduct in dial-a-dope investigations will surely vary depending on their lived experience. Wealthy people with no connection to the world of drugs will likely gravitate towards
“fair” while marginalized or vulnerable people who have a higher risk of being ensnared will likely find it “unfair”. 

Recognizing these socioeconomical factors, Justice Moldaver’s criticism carries less weight. Canadian society today is increasingly wary of overreaching police conduct. We know that entrapment has a disproportionate impact on poor and racialized communities. Reasonable suspicion as a standard has been developed to balance society’s interest in the detection and punishment of crime with its interest in maintaining individual freedoms. These developments amount to a normative shift towards restraining police conduct and requiring them to justify their actions prospectively, via at minimum reasonable suspicion, rather than retroactively. Viewed in this light, it may be it is just as valid to claim, as the majority does, that society cannot tolerate people being presented opportunities when the police do not have reasonable suspicion that they are engaged in a particular criminal activity. If one can accept that, the majority’s approach may properly remain a species of abuse of process. 

(2) Where does this decision leave the bona fide inquiry exception? 

In its application of the entrapment framework, the majority made it clear that in the dial-a-dope context the entrapment analysis is identical whether it is purported to be done under the personal reasonable suspicion branch or the bona fide inquiry branch. This position is not surprising. These appeals were not typical bona fide inquiry cases because they did not involve a geographical location like in Barnes, or a more traditionally understood virtual location like an online chatroom. There was simply a phone number with a single person behind it. Moreover, the cases were argued as exclusively personal reasonable suspicion cases at the trial level. 

That said, the majority acknowledged that virtual locations like phone numbers or message boards on websites can qualify as places over which the police can have reasonable suspicion. A key requirement is that “the virtual space in question must be defined with sufficient precision in order to ground reasonable suspicion.” In deciding whether this has been achieved, the majority found that the following factors “may be helpful”: 

• • the seriousness of the crime in question; 
  • the time of day and the number of activities and persons who might be affected; 
  • whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location; 
  • the level of privacy expected in the area or space; 
  • the importance of the virtual space to freedom of expression; 
  • and the availability of other, less intrusive investigative techniques.

These factors are interesting. They closely resemble the factors laid out by Justice McLachlin (as she then was) in her dissenting judgment in Barnes. For Justice McLachlin, however, the factors helped determine whether the interception at the particular location where it took place was reasonable, having regard to the conflicting interest of private citizens in being left alone from state interference and of the state in suppressing crime. Here, it is unclear whether the factors are meant to play a similar role or if they are only relevant in defining the virtual space with precision. 

It is also unclear whether these factors are only relevant when assessing virtual spaces or if they should be assessed for geographical locations as well. Moreover, Justice Moldaver claims that the majority’s approach requiring individualized reasonable suspicion precludes the type of investigation undertaken in Barnes. These questions will no doubt be grappled with by lower courts in future cases.

(3) How will this decision impact police investigations? 

This case will obviously transform how police agencies approach investigating dial-a-dope operations. The police should be incentivized to take additional steps prior to making the phone call in an attempt to establish reasonable suspicion. Some suggestions made by the majority are: waiting to see if additional tips are received before making the call, cross-referencing the person’s name or phone number to find connections to criminal activity, and considering the details in the tip or the reliability of the informant. Importantly, none of these steps were taken by the police officers in either case. An additional avenue that may be explored is the use of Swan sheets. Swan sheets, which are already being used in British Columbia, require police officers to record the steps they took to establish reasonable suspicion prior to making the call.

The police’s approach during the course of the phone call should also change. They will be more cautious before providing an opportunity by speaking in vaguer language rather than offering to purchase a specific quantity and type of drugs right away. The difference will resemble words more akin to “Can you help me out” rather than “I need 80.”   

The decision’s impact on police investigations outside of the dial-a-dope context is less certain. The decision does reinforce the need for police officers to have reasonable suspicion over a person or location prior to providing an opportunity, so they might have to work a bit harder by exploring additional modes of investigation in borderline cases. This development should be welcomed by those concerned with the rights of accused persons and being free from undue state interference. 

The post Reasonable Suspicion Required: The SCC’s Approach to Entrapment in R v Ahmad appeared first on Weisberg Law.