- Lewis Waring
A Tale of Two Traffickers - Derek J. Novosel
The average person likely can relate to feeling bewildered when an accused who is unequivocally guilty of having committed a crime (in the sense that it is accepted fact – even by the accused – that an accused has committed a crime) is able, on the basis of some legal technicality or by the exploitation of some loophole, to escape responsibility for their actions. To the untrained eye, the justice system can seem anything but just at times when criminals are allowed to walk free. However, although sometimes the justice system can seem to give criminals too fair a shake, the converse may also be true. Police employ ruthless tactics in order to catch criminals, often walking a thin line between what the public may perceive as acceptable and not. Both sides of this coin are addressed in the case of R v Ahmad (“Ahmad”), which deals with the issue of police entrapment in the context of dial-a-dope operations.1
Background
Ahmad is actually two separate cases from Ontario, which were heard jointly at the Supreme Court of Canada (“the Court”)l. At issue in each case was whether the police had entrapped the appellant. Both of the appellants were drug dealers in Toronto.
Mr Ahmad was contacted by Detective Constable Limsiaco (“DC Limsiaco”) on 19 April 2012; they had a few phone conversations and later that day, DC Limsiaco met with Mr Ahmad outside the Yorkdale Shopping Centre and from Mr Ahmad purchased two small bags of cocaine. Subsequently, Mr Ahmad was arrested, charged, and found guilty at trial of one count of possession of cocaine for the purposes of trafficking and two counts of possession of the proceeds of crime. After being convicted, Mr Ahmad failed to obtain a stay of proceedings after unsuccessfully arguing entrapment.
Mr Williams was contacted by Detective Constable Canepa (“DC Canepa”) on 11 February 2011 and, after a few telephone conversations, the two met up and DC Canepa purchased crack cocaine from Mr Williams. A second transaction was completed on 22 February 2011 and an attempt was made at a third, however, Mr Williams did not respond. He was arrested a few weeks later, and charged with drug-related offences (and other firearm, ammunition, and breach of recognizance offences, subsequent to his arrest) – charges which he fully acknowledged he was culpable for but which he succeeded in having stayed on the basis of entrapment (the additional charges were not stayed; the police did not encourage or facilitate his walking around with a gun).
Mr Ahmad appealed and so did the Crown in the case of Mr Williams (Mr Williams also cross-appealed with respect to the dismissal of his entrapment application regarding the other charges); it was at this level that the cases were joined together. The Ontario Court of Appeal (“the ONCA”) dismissed Mr Ahmad’s appeal (and Mr Williams’s cross-appeal), and it allowed the Crown’s appeal. Going forward to the Court, therefore, were two convicted drug dealers who were held not to have been entrapped by the police.
The Court dismissed Mr Ahmad’s appeal and held that he was not entrapped. It allowed Mr Williams’s appeal, however, and it held that he was entrapped. It was a split decision. Justices Abella, Karakatsanis, Brown, Martin, and Kasirer formed the majority. Chief Justice Wagner and Justices Moldaver, Côté, and Rowe, dissenting in part, would have upheld the rulings of the ONCA. The latter justices, in their analysis, provided a very interesting and what would have been a very valuable update to the functioning of the doctrine of entrapment.
The Entrapment Doctrine and its Application
Why did both of these men argue that they were entrapped by the police, and what was the reasoning regarding why the trial courts decided that Mr Ahmad had not been entrapped whilst Mr Williams was? Obviously, Mr Ahmed and Mr Williams would not have been caught by the police if the police had not reached out to them to set up an occasion by which they could “catch them in the act”. The police essentially fabricated a crime, and Mr Ahmad and Mr Williams thought that was unfair. However, sly tactics are necessary when the objects of those tactics (criminals) are themselves sly; the police can be seemingly unfair in performing their work because those with whom they must deal operate unfairly themselves. There was nothing wrong with what the police did here in order to catch these criminals. The potential issues relate, rather, to how the police went about doing what they did.
The doctrine of entrapment operates as a means of preventing abuse of process. There are two separate branches, or prongs, of the law of entrapment under which a stay of proceedings may be obtained; these were set out in the case of R v Mack (“Mack”).2 The first branch, the “individualized suspicion prong”, is engaged when the authorities “provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides”.3 The second branch, the “bona fide inquiry prong”, is engaged when the authorities, “having a reasonable suspicion or acting in the course of a bona fide inquiry . . . go beyond providing an opportunity and induce the commission of an offence”.3 The first branch of Mack was engaged in these cases; when this is so, police must have reasonable suspicion that either a specific person is engaged in criminal activity, or that people are carrying out a criminal activity at a specific location. (Reasonable suspicion has been defined by the Court as being suspicion that is “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds”.4
In the context of dial-a-dope operations, in order for the police to avoid entrapping a person, they cannot offer a person who answers a cell phone the opportunity to commit an offence before they have formed a reasonable suspicion that the person on the other end of the call is engaged in criminal activity. Here, we know that the police provided opportunities for both Mr Ahmad and Mr Williams to commit crimes; crimes which they did, in fact, commit. However, reasonable suspicion was required on the police’s part prior to the provision of those opportunities. Prior to the phone call in either situation, neither police officer had the requisite reasonable suspicion to enable them to pose criminal opportunities to the recipients of their calls.
In Mr Ahmad’s situation, the relevant portion of the conversation between himself and DC Limsiaco is as follows:
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 soft5
The trial court found that there was no entrapment because DC Limsiaco had built up reasonable suspicion that the person with whom he was talking was involved in trafficking drugs; this was because DC Limsiaco waited until he was asked “what he needed” prior to providing the opportunity to commit the offence (requesting the cocaine).
In Mr Williams’s situation, the relevant portion of the conversation between himself and DC Canepa is as follows:
Officer: You around?
Male: Who is this?
Officer: It’s Vinny.
Male: Vinny who?
Officer: Vinny. Jesse from Queen and Jarvis gave me your name . . . your number. Said you could
help me out. I need 80.6
The trial court found there was entrapment because DC Canepa had not built up reasonable suspicion that the person with whom he was talking was involved in trafficking drugs. Indeed, going off the transcript, at any rate, the opportunity to commit a crime seems to have been stated by DC Canepa almost as if he did not want to establish reasonable suspicion prior to providing Mr Williams with the opportunity to commit a crime. It is unlikely that was the case but it is evident more inquiry had to take place before any sort of objective suspicions could be raised.
At the Supreme Court of Canada
At the Court, the majority, upholding the normal operation of the doctrine as originally established in Mack, upheld the ONCA’s decision, and, subsequently, the conviction of Mr Ahmad; it reversed, however, the ONCA’s decision regarding Mr Williams and allowed his appeal. The Court concluded, in essence, that Mr Ahmad had not been entrapped but that Mr Williams had.
The dissent would have taken a different approach that saw the appellate decisions regarding both men upheld and not permitted the doctrine of entrapment to apply to either Mr Ahmad or Mr Williams. The dissent noted that there are problems in how the first branch of entrapment is currently formulated with respect to its application to dial-a-dope situations.
The first of these problems was that the individualized suspicion prong leads to anomalous results in the dial-a-dope context. In order to determine whether there was a reasonable suspicion, the language used by the undercover officer must be minutely parsed on a case by case basis and this leads to “artificial distinctions between cases where a stay is granted and cases where the convictions are upheld”; drawing such distinctions was aptly described by Justice Moldaver as “dancing on the head of a pin”.7 Courts, the dissent argues, in “getting caught up in the precise language used by undercover officers in dial-a-dope cold calls . . . have lost sight of the fundamental relationship between entrapment and abuse of process”.8 The doctrine of entrapment was not intended to interfere with the socially acceptable techniques of law enforcement, but dial-a-dope jurisprudence under the individualized suspicion prong has nonetheless accomplished that result.9
Another problem lies in the fact that judicial developments have led to doctrinal inconsistencies with the bona fide inquiry prong. Due to the anomalous results that the individualized suspicion prong has produced, courts have been analyzing police conduct in dial-a-dope cases by the use of the bona fide inquiry prong.10 The bona fide inquiry prong allows for virtue testing so long as it is confined to the people associated with a certain specific and precisely-defined location (locations can include phone numbers, in the sense that they are virtual locations). The police must reasonably suspect that some type of crime is taking place in relation to that “location” but that is a generalized reasonable suspicion standard and the Court has moved away from permitting such a standard in favour of individualized reasonable suspicion (e.g., R v Chehil, 2013 SCC 49: “reasonable suspicion” must mean “individualized suspicion”). Hence, the inconsistency of this prong with the jurisprudence as it has developed since Mack: the restrictive meaning of reasonable suspicion is “incompatible with the balance between individual liberties and legitimate law enforcement”.11
The Proposed Solution
The solution offered by Justice Moldaver on behalf of the dissent was to revise the bona fide inquiry prong. The following test was suggested:
Police should be found to be acting pursuant to a bona fide inquiry where:
Their investigation was motivated by genuine law enforcement purposes;
They had a factually-grounded basis for their investigations; and
Their investigation was directed at investigating a specific type of crime within a tightly circumscribed location (whether physical or virtual).
This test would have ensured that “the end-game of the bona fide inquiry prong remains ensuring that the police are not allowed to randomly test the virtue of citizens, and that [police] conduct is subject to independent and objective review from the courts”.12 It would have constituted a sharpening of the pencil of the bona fide inquiry prong of the entrapment doctrine in that that pencil, dulled and less effective than it originally was, would have been able to have been used more effectively, precisely, and reliably once more. All three of these requirements would have:
contributed to restricting random virtue testing;
imposed stringent standards on law enforcement which would have ensured their accountability; and
modernized this prong of the doctrine.
It would have ensured the balance between individual liberties and legitimate law enforcement was clear, effective, and enshrined in the common law of Canada.
The test, as formulated, would have done away with the inconsistent and problematical standards involving reasonable suspicion and the questions as to just what that is with respect to a bona fide inquiry. Instead, it would have focused on the motivation for the purpose underlying the law enforcement. Such a purpose would have had to have been genuine. This requirement would have worked effectively to protect the broader public from random virtue testing. Providing opportunities that would not otherwise exist for people to commit crimes just to see if they might is not a genuine law enforcement purpose. Some people who would not otherwise be tempted might be and then the state would have to attempt to punish them accordingly. The efforts involved in non-genuine law enforcement would hinder those involved in genuine law enforcement. As well, by elucidating clear instructions as to the basis upon which law enforcement can operate, this element would have contributed to the accountability of law enforcement when issues of entrapment might crop up. Furthermore, the test would have been modernized in the sense that confusing issues regarding reasonable suspicion would no longer have been in play.
The factually-grounded component of the test would have complemented the genuine purpose requirement because it would have added a supplemental requirement to replace the reasonable suspicion standard: the investigation would have had to have been grounded in actual fact. This also would have protected the broader public from random virtue testing. It would mean that, in dial-a-dope cases, the police could not just go through the phone book: they would have had to actually have a reason to initiate an investigation, a tip, or some sort of knowledge giving them reason to pursue an investigation (this is not so much “reasonable suspicion” about something quite as much as “actual suspicion” about something). Again, this requirement would have furthered the purpose of being able to hold law enforcement to account. It could have been said to have been even more stringent than the first part of the test. Whereas motive might have potentially left room for some flexibility with respect to what a genuine law enforcement purpose was, the fact-based nature of this second element would have provided a solely objective basis upon which potential investigations would have had to proceed. In the sense that this would have improved the accountability of law enforcement, it would have modernized the doctrine with respect to that as well.
Finally, the requirement that the investigation be directed at investigating a specific type of crime within a tightly circumscribed location would have furthered the protection against random virtue testing. Police would not have been able to just see what someone was up to and, if it seemed suspect, proceed to investigate further. Further, the location element of the bona fide inquiry would have been reinforced: investigations would have needed to target a specific location, thus offering further protection from random virtue testing. This again would have increased the accountability factor with respect to the actions of law enforcement. This final provision would have been very important for the purposes of modernizing the doctrine and, arguably, this might have been, more than any other single factor, what made the new test preferable (though in the majority decision this element is also addressed). The inclusion of “virtual” as well as “physical” locations would have taken into account the developments in the way society functions and, consequently, the way criminals today operate. Virtual locations can include, in the dial-a-dope context, telephone numbers but also emails, online accounts, and so on: it would have explicitly delineated the scope of where law enforcement could focus their efforts and, in so doing, eliminated questions like the ones at issue in this case, whether telephone numbers could count as “locations”. I grant that this case dealt with this issue but, in an examination of the benefits of the dissenting test, were it to have been adopted, it is important to draw attention to the fact that this point would have been a significant and positive, perhaps the most positive, aspect of the new test.
Conclusion
Thankfully, the intelligent and thoughtful analysis which gives rise to this test is, if not a part of the majority decision, at least recorded in the dissent for future consideration. With respect, it would have been a great improvement over the incoherent and inconsistent approach accepted by the majority. The best part? It would have allowed both the appellants to have still been convicted for their crimes. Mr Williams, a man who was most obviously a drug dealer and actually conceded that this was the case in this situation, could have still been answerable for his crimes in that regard. As it stands, one finds it difficult not to sympathize with the approach, the analysis, the solution, and the outcomes which the dissent would have employed and arrived at. Yes, the police must not be given free reign to do as they please and try to pin criminal charges on people who would otherwise be innocent; but they need to be able to do their jobs effectively. Had this dissent garnered a few more signatures from the opposite camp, the police and the public would have, respectively, been more effectively able to pursue justice and been better protected from the negligent pursuit of it.
End Notes
R v Ahmad, 2020 SCC 11 [Ahmad].
R v Mack, [1988] 2 SCR 903 [Mack].
Ahmad, supra note 1 at para 119, quoting R v Kaang-Brown, 2008 SCC 18, at para 75.
Mack, supra note 2 at 959.
Ahmad, supra note 1 at para 101.
Ibid at para 106.
Ibid at para 95.
Ibid at para 118.
Ibid at para 122.
Ibid at para 128.
Ibid at para 138.
Ibid at para 156.
