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DEFENCES - Entrapment

Friday, May 29, 2020 @ 3:06 PM  

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Appeals by the accused, Javid Ahmad and Landon Williams, from convictions for drug-related offences. In each appeal, the police received an unsubstantiated tip that a phone number was associated with a suspected dial‑a‑dope operation. Police officers called the numbers and, in brief conversations with the men who answered, requested drugs and arranged meetings to complete the transactions. Ahmad and Williams were subsequently arrested and charged with drug‑related offences. At trial, each accused claimed that the proceedings should be stayed on the basis of entrapment. In Ahmad’s case, the trial judge concluded that Ahmad was not entrapped because the police had not offered him an opportunity to traffic drugs until they had sufficiently corroborated the tip in the course of the conversation. In William’s case, the trial judge found that Williams was entrapped because the police provided him an opportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking. The judge stayed the proceedings. The Court of Appeal held that entrapment was not made out for either Ahmad or Williams. A majority of the court concluded that, where reasonable suspicion related to the phone number itself, the police could provide opportunities to commit offences to a person associated with that phone number, even if they did not also have a reasonable suspicion about the person who answered the phone. The Court of Appeal dismissed Ahmad’s appeal and allowed the Crown’s appeal of William’s case, entering convictions.

HELD: Appeal by Ahmed dismissed. Appeal by Williams allowed. As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. The framework in R. v. Mack sanctioned, but narrowly confined, the power of police to step beyond their normal investigative role and tempt people into committing criminal offences. Where they did so without reasonable suspicion, or where they went further and induced the commission of a criminal offence, they committed entrapment. Mack set out two alternative branches, either of which was sufficient to ground an accused’s claim of entrapment and justify a stay of proceedings. On the first branch, at issue in the appeals, the police could present an opportunity to commit a crime only upon first forming reasonable suspicion that either a specific person was engaged in criminal activity or people were carrying out criminal activity at a specific location. The offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or a combination of both. An individual phone number was sufficiently precise and narrow to qualify as a place for the purposes of the first branch of the entrapment doctrine. A reasonable suspicion could not be grounded on a bald tip alone. Although a sole tip devoid of predictive information could not meet the reasonable suspicion standard, such a tip could be sufficiently corroborated such that the standard was met. It was also possible for the police to form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime. In the particular context of drug trafficking, an opportunity to commit an offence was offered when the officer said something to which the accused could commit an offence by simply answering “yes.” In Ahmad’s case, reasonable suspicion crystallized when Ahmad asked the officer, “What do you need?” By that point, the officer had asked Ahmad if he went by the name “Romeo,” which he did not deny. These markers of reliability together sufficiently corroborated the initial tip to give rise to an objective possibility that Ahmad was involved in drug trafficking. In Williams’ case, there was nothing in his responses before the officer provided the opportunity to traffic to suggest that the phone number was being used to sell drugs. The police officer did not wait to see how Williams would respond to an investigative question that could have corroborated that Williams was engaged in criminal activity prior to providing the opportunity to commit the crime. The police had no more than a bare tip that someone using a particular phone number was selling drugs and that did not ground reasonable suspicion. Ahmad’s appeal was dismissed and Williams’ appeal was allowed. The stay of proceedings in Williams’ case was reinstated. 

R. v. Ahmad, [2020] S.C.J. No.11, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., May 29, 2020. Digest No. TLD-May252020011-SCC