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
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.