• Lewis Waring

How Much Suspicion Warrants Police Action? - Prachi Sanghavi

When police officers investigate crimes, they rely on a variety of means to find evidence. In crimes that are more planned and calculated, officers may need to conduct specific types of undercover investigations. This is especially relevant for cases for involving drug smuggling, human trafficking and/or terrorism. And in conducting these undercover investigations, some officers are tasked with tempting individuals to commit crimes. This power must be used carefully and officers must be able to show the court they had a good “reason to suspect that a certain crime was happening". This is referred to as “reasonable suspicion". This requirement ensures police officers are held accountable for how they conduct investigations and it is very important with respect to the rights of the accused.

In cases where police officers tempt a person to commit a crime without reasonable suspicion, they are engaging in “entrapment". Such engagement threatens our judicial system and disrespects the rights and freedoms guaranteed to individuals by the Canadian Charter of Rights and Freedoms (“the Charter”). If entrapment is proven, there is a “stay of proceedings” and the person cannot be convicted of the crime. If the person is guilty, this puts the rest of society at risk.


R v Ahmad


In R v Ahmad (“Ahmad”), two cases were heard at the same time as they both dealt with almost identical subject matter. In Mr. Ahmad’s case, a police officer received “an unsubstantiated tip” that someone named “Romeo” was selling drugs. The officer decided to act on the information and called the number provided stating he intended to purchase cocaine. Upon meeting Romeo, the sale was made and the police arrested and searched Romeo (who turned out to be Mr. Ahmad).


The trial court ruled that Mr. Ahmad was not entrapped based on the phone call the police officer made prior to the meeting. It was established that the officer “had not offered [Mr. Ahmad] an opportunity to traffic drugs until they had sufficiently corroborated the tip in the course of the conversation". The appellate court dismissed Mr. Ahmad’s appeal on the fact that “where reasonable suspicion relates to the phone number itself, the police can provide opportunities to commit offences to a person associated with that phone number, even if they do not also have a reasonable suspicion about the person who answers the phone".


The other case tried alongside Mr. Ahmad’s was Mr. Williams’. In this case, the trial court concluded that Mr. Williams was entrapped; unlike in the case of Mr. Ahmad, during the phone call, “the police provided [Mr. Williams] an opportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking". However, for the same reason stated for Mr. Ahmad above, the appellate court disagreed with the trial court on the outcome of Mr. Williams’ case.


The Supreme Court of Canada (“the Court”) began by discussing the precedent regarding entrapment established in R v Mack and R v.Barnes. In R v.Mack, the Court described a situation in which “the police may present an opportunity to commit a crime only upon forming reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry". In such a scenario, there must be reasonable suspicion from the police before presenting the opportunity. According to the Court, “a bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion".


However, it is alright for officers to use the tip to form reasonable suspicion. Specifically, the officers are permitted to “form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime". In forming the reasonable suspicion, the officers must consider several factors including (but not limited to) “the target’s responsiveness to details in the tip… [and their] use of or response to language particular to the drug subculture". In Ahmad, the officers did not appear to rely solely on the tip to form their rationale for reasonable suspicion. However, the cases of Mr. Ahmad and Mr. Williams are differentiated by the officers’ conduct and subsequent thought process. This distinction was made “reviewing conversations between undercover officers and their targets in the dial‑a‑dope context [because it] is the inevitable consequence of accepting that the police must have reasonable suspicion before offering an opportunity to commit an offence". The Court held that “reasonable suspicion is not formed retroactively, but applied prospectively". It further went on to state that “in the particular context of drug trafficking, an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering ‘yes’"; this was the distinguishing factor between Mr. Ahmad’s and Mr. Williams’ cases.


In Mr. Ahmad’s situation, during the phone call, the officer asked Mr. Ahmad if he went by the pseudonym “Romeo”. Once Mr. Ahmad agreed, the officer had successfully connected the tip to the person on the phone. Next, the officer asked if Mr. Ahmad was willing to “help [him] out". Given Mr. Ahmad’s “understanding of drug‑trafficking slang and willingness to engage in it,” the officer had reasonable suspicion. This was contrasted with Mr. Williams’ case as “there was nothing in [Mr. Williams’] responses that suggested that the phone number was being used to sell drugs before the officer provided the opportunity to traffic". Specifically, the Court pointed out that, while Mr. Williams “confirmed that he went by the name provided in the tip, he did not respond positively to slang particular to the drug subculture until after the opportunity had been provided". As a result, the Court concluded that he was entrapped.


The dissent in Ahmad argued that both appeals should have been dismissed. They held that there needed to be a revised framework of the test established in R v Mack (“Mack”) to “[bring] it in line with recent doctrinal developments and [place] limitations on the scope of location under investigation". Overall, the framework had three criteria outlined as follows:

  • the “investigation must have been motivated by genuine law enforcement purposes”;

  • there must have been facts grounding the investigation (more than an educated hypothesis); and

  • the investigation’s scope must have abeen limited in type of crime and location (examples include physical or virtual).

And under the Court’s new “abuse of process”-based framework, it had three reasons to support its conclusion. First, there had been no “suggestion that the police were not motivated by genuine law enforcement purposes, nor [was] there any evidence of bad faith". Second, the police had considered the tip a factually-grounded basis for the purpose of the investigation. Third, “their inquiry was sufficiently tightly circumscribed".


Implications and Outcomes of the Ruling


The Court dismissed Mr. Ahmad’s appeal but allowed Mr. Williams’. This meant that Mr. Ahmad was convicted and Mr. Williams was granted a stay of proceedings (as initially granted by the trial court).

Ahmad was very impactful as it gave further direction to police officers when engaging in undercover activities. It also showed the seriousness of committing entrapment because, while Mr. Williams was guilty, the means of proving this were unjust; as a result, he was granted a stay of proceedings. As such, Ahmad truly reflects the principles of our criminal justice system because it does not stand for the rights of a potentially guilty person to be violated.


Check out the Robson Crim MLJ
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