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DEFENCES - Entrapment

Friday, July 20, 2018 @ 8:00 AM  

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Appeal by the accused, Ahmad, from a conviction and sentence for drug-related offences. Appeal by the Crown from a stay of proceedings against the accused, Williams, in respect of drug-related offences. Cross-appeal by Williams from the refusal to stay weapon and breach offences. In two separate cases, police acted on tips from confidential informants providing the number of telephone-based drug dealers. Police used undercover agents to cold call the numbers provided in order to set up drug transactions that eventually resulted in the arrest of each accused. Following their convictions, the accused each sought a stay of proceedings on the basis of entrapment. In the case of Ahmad, the trial judge found no entrapment, as Ahmad initiated the transaction by asking the caller what they needed. Ahmad was convicted of possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He was sentenced to a term of imprisonment of two years less one day. Ahmad appealed the conviction and sentence. In the case of Williams, the trial judge concluded he was entrapped, as police lacked reasonable suspicion Williams was involved in drug trafficking when they approached him and requested drugs. The judge stayed the charges of trafficking cocaine and possession of proceeds of crime, but refused to stay weapon and recognizance offences, as they were not inextricably linked to the entrapment. The Crown appealed and Williams cross-appealed.

HELD: Ahmad's appeal dismissed; Williams’ cross-appeal dismissed; Crown’s appeal allowed. Where, as here, police reasonably suspected a phone line was part of a dial-a-dope scheme, a bona fide inquiry involved providing opportunities to people associated with that phone line to sell drugs, even if those people were not themselves under a reasonable suspicion. To constitute a bona fide inquiry, the investigation must be motivated by the genuine purpose of investigating and repressing criminal activity and directed at a phone line reasonably suspected to be used in a dial-a-dope scheme. In both cases, police acted pursuant to a bona fide inquiry as the term should properly be understood in current policing and the particular context of telephone-based drug dealing. Accordingly, the defence of entrapment was not available to either accused. It followed that Williams had no basis to pursue his cross-appeal. The conviction of Ahmad did not involve any error in the assessment of credibility or inconsistent findings of fact. The sentence imposed on Ahmad was not manifestly unfit.

R. v. Ahmad, [2018] O.J. No. 3091, Ontario Court of Appeal, C.W. Hourigan, D.M. Brown JJ.A. and S.G. Himel J. (ad hoc), June 11, 2018. Digest No. TLD-July162018010