Random virtue testing and police-manufactured crime sow deep seeds of distrust between the citizen and the state. The doctrine of entrapment defines the constitutional boundaries of lawful police conduct in providing opportunities for unwitting targets to commit crimes. In modern drug investigations, officers commonly place cold calls to alleged drug lines hoping to set up on a buy. These calls are often placed based on no more than an anonymous tip. In R v Ahmad, the Supreme Court of Canada recently considered the law of entrapment and how it functions in the drug trafficking context.

1. “What do you Need?” (The Facts)

Javid Ahmad and Landon Williams’ cases were heard together in both the Ontario Court of Appeal and the Supreme Court of Canada. The facts were unremarkable.  In both cases, the police received tips that a phone number was associated with low end drug sales. Undercover officers placed calls and arranged buys.

In Ahmad’s case, the police received a tip that “Romeo” was trafficking drugs. The police called the number and had the following exchange:

Male: Hello

Officer: Hey, It’s Mike, Matt said I can give you a call, this is Romeo?

Male: He did, did he?

Officer: Yeah, said you can help me out?

Male: What do you need?

Officer: 2 soft

Male: Hold on, I’ll get back to you.

Officer: Alright. (para 72)

In Williams’ case, the police received a tip that “Jay” was selling drugs using a particular phone number. Officer Canepa placed a call and had the following conversation:

Male: Hello.

Canepa: Jay?

Male: Yeah.

Canepa: You around?

Male: Who is this?

Canepa: It’s Vinny.

Male: Vinny who?

Canepa: Vinny. Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80.

Male: Okay. You have to come to me.

Canepa: Okay. Where?

Male: Queen and Dufferin.

Canepa: Okay. It’ll take me a few because I’m at Yonge & Bloor.

Male: Okay, hurry up.

Canepa: I’ll call you when I get there.

Male: Okay. What you want, soft or hard.

Canepa: Hard. Hard buddy.

Male: Okay. (para 95)

At trial, both defendants argued entrapment and sought a stays of proceeding. Despite the similar conversations that led to their arrests, Williams received a stay but Ahmad did not. The majority of the Supreme Court of Canada held that the outcomes were as they should be. The minority held both accused should have been convicted and that the doctrine of entrapment was in need of revision.

2. The Doctrine of Entrapment

The doctrine of entrapment provides that the police may lawfully give a target an opportunity to commit a crime under two circumstances. The first is where the police already have a “reasonable suspicion” that the target is engaged in criminal activity. The second is where the police have a reasonable suspicion that people are carrying out criminal activity at a specific location. In either of these circumstances, the police may only provide an opportunity. They are not permitted to induce the commission of the offence. These principles were established by the Supreme Court of Canada in R v Mack (1988) and later refined in R v Barnes (1991).

It is important to emphasize that entrapment is not a substantive defence. It does not matter if an accused is guilty. Entrapment is a subset of abuse of process and where there is a finding that an accused has been entrapped, the state is no longer entitled to a conviction and the matter is judicially stayed.

3. The Reasonable Suspicion Standard

One of the key findings in entrapment cases will be whether the information the police acted upon gave rise to a reasonable suspicion of criminal activity. The phrase “reasonable suspicion” is a term of art used in various contexts throughout Canadian criminal and constitutional law. It describes a state of belief short of reasonable grounds (probable cause) but beyond a hunch or mere intuition. In order to be ruled “reasonable” on review, an officer’s suspicion that someone is involved in criminal activity must be based on objectively discernible facts and must be particularized to a specific target (See: R v Chehil at para 30; and, Ahmed at para 48).

The courts have repeatedly held that the reasonable suspicion standard is meant to be a “robust” standard. The police must demonstrate that they had sufficient and legitimate reasons for targeting specific people or places. Trial judges are expected to closely scrutinize an officer’s evidence with an eye to whether indiscriminate or discriminatory conduct has taken place. The focus in the analysis is not on what an innocent person would do in the circumstances. It is on whether the police had sufficient grounds before they provided someone with an opportunity to commit a crime (para 55).

4. Phone Numbers and Virtual “Places”

One of the key issues in Ahmad was whether the phone numbers given by the tipsters were “places” for the purpose of forming a reasonable suspicion. Writing for the majority, Justice Sheilah Martin found they were and elaborated on the nature of “virtual spaces” in the entrapment context. While well-defined spaces (such as a phone number) may properly be targeted, entire websites or social media platforms will rarely, if ever, be sufficiently particularized for targeting (paras 40-43).

Justice Martin’s reasoning on this point focused heavily on the underlying importance of personal privacy and individual freedom. While investigating crime is important, citizens must be allowed to go about their daily lives “without courting the risk that they will be subjected to the clandestine investigatory techniques of agents of the state” (para 38).  In the view of the majority, the “human condition flourishes as the fear of state intrusion fades” (para 38). The right to be let alone is fundamental to human dignity and an interest worthy of constitutional protection.

5. Forming the Suspicion

In the drug trafficking context, the key in most entrapment cases is pinpointing when, precisely, an officer’s grounds crystallized into a “reasonable suspicion”. One of the important findings in Ahmad was that the police are entitled to develop their grounds during the buy call. This is why Williams received a stay of proceedings while Ahmad’s conviction stood, even though neither undercover officer had a reasonable suspicion when they placed the call.

After carefully parsing the conversations reproduced above, the majority found that when “Romeo” asked, “What do you need?” it was sufficiently confirmatory of drug trafficking activity to ground a reasonable suspicion. Thus, the police were entitled to offer Ahmad an opportunity to commit a crime and charge him when he took it. Ahmad’s question of the undercover officer “What do you need?” was not the product of entrapment. Williams, on the other hand, was immediately presented with an opportunity to traffic without any confirmatory chit chat. The undercover officer’s statement to Williams “I need 80” was entrapment.

6. Conclusion

The ruling in Ahmad was split 5-4. The majority and minority opinions were deeply divided on how to view the police conduct at issue and how the law of entrapment should develop more generally. The majority saw “no reason to alter [the] carefully calibrated balance struck in Mack and affirmed in Barnes” which “has proved workable for decades in a variety of contexts, including drug trafficking” (para 23). The majority took comfort in the claim that the reasonable suspicion standard “rigorously safeguards several rights that are engaged in the entrapment context: to liberty, to be left alone and to equality” (para 57). The extent to which the reasonable suspicion standard achieves such a lofty goal remains an open question, one which I will address in my next post.