Reasonable Suspicion - Z. Porter
In R v Mack (1988) (“Mack”), the Supreme Court of Canada (“the Court”) set out two branches of the doctrine of entrapment that were later affirmed in Barnes (1991) (“Barnes”). Entrapment occurs when “(a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides […] or, (b) having reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond proving an opportunity and induce the commission of an offence.” This framework from Mack has been used to assess the legality of investigating suspected dial-a-dope operations in Canada over 30 years ago. The most recent application of this framework comes from the case of R v Ahmad (“Ahmad”), in which the Court heard the appeals of two convictions, one for Javid Ahmad and the other for Landon Williams. Both cases involve the police contacting phone numbers received in unsubstantiated tips that were suspected to be involved in dial-a-dope operations. This blog will review the facts of each case, followed by a review of the reasonable suspicion framework and its application in the Court’s decision in Ahmad, concluding with a short commentary on the outcome.
Dial-a-dope undercover work leads to a stay and a conviction
In the case of Mr. Ahmad, Detective Constable Limsiaco (“DC Limsiaco”) had been provided with information from another officer that an individual going by the alias “Romeo” was selling drugs using a specific phone number. Without further investigation, believing that the other officer had received the information from a confidential source, DC Limsiaco phoned the number in question. DC Limsiaco began by confirming that he was speaking with “Romeo,” before asking if he could help him out. When “Romeo” continued by asking what DC Limsiaco needed, he replied with, “2 soft,” a street term for two grams of cocaine. The two agreed to meet to complete the sale. When DC Limsiaco arrived at the agreed upon location, he phoned the same number again, met up with the man, and exchanged cash for the specified amount of cocaine. The individual was subsequently arrested. On his person, the officers found additional cocaine and envelopes filled with cash that had the name “Romeo” written on them. The individual was later determined to be Mr. Ahmad. The Ontario Superior Court of Justice (“ONSC”) in Ahmad concluded that Mr. Ahmad had not been entrapped and convicted him of “one count of possession of cocaine for the purpose of trafficking, and two counts of possession of the proceeds of crime”.
For Mr. Williams, things happened slightly differently. Detective Constable Hewson received a package from another officer that identified Landon Williams as “Jay,” and included information about him and a tip that he was a cocaine dealer. The content of the tip, William’s connection to the name “Jay”, as well as the currency of the information were not included in the tip. However, the package stated that the tip was from a “confidential source of unknown reliability”. Some of this information was passed on to Detective Constable Canepa (“DC Canepa”), who then contacted the telephone number, and the man who answered confirmed his name was “Jay.” DC Canepa said “Jesse from Queen and Jarvis gave me your name … your number. Said you could help me out. I need 80,” The two met and made the exchange and did so again 11 days later. Williams was arrested a month later. A stay of proceedings was entered as the ONSC found that there had been no reasonable suspicion prior to the officer providing Williams with the opportunity to commit a crime.
Appeal finds no entrapment in either case
Javid Ahmad appealed his conviction while the Crown appealed the decision in the case of Landon Williams. The appeals were heard together, and the Court of Appeal for Ontario (“the ONCA”) held that entrapment had not been made out in either case. The ONCA concluded 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 ONCA dismissed Ahmad’s appeal and allowed the Crown’s appeal for the case of Mr. Williams, entering a conviction. Both cases were appealed to the Court.
Nature of conversation determines entrapment
The Court determined that the only question that needed to be answered in Ahmad was whether the officers in each case had reasonable suspicion that either of the targets or the phone numbers were involved in drug trafficking at the time that they provided them with an opportunity to commit a crime. The purpose of the reasonable suspicion standard is to balance society’s interest in the detection and punishment of crime with its interest in maintaining individual freedoms by requiring officers to disclose their reasons for targeting an individual or individuals associated with a location. This is meant to safeguard against indiscriminate and discriminatory police conduct and reflects Canada’s cautious approach to the expansion of police powers. Importantly, suspicion cannot be formed retroactively, it must be applied prospectively.
In the case of Mr. Ahmad, DC Limsiaco had begun by confirming that he was in fact speaking with Romeo and asking if he could help him out. In response, rather than seeming surprised that he was being asked for help by a stranger, he responded with “What do you need?” The follow up response of “2 soft”. Given the context, this statement amounted to DC Limsiaco asking Ahmad if he would sell him two grams of cocaine. The ONSC concluded that, given the totality of the factors, reasonable suspicion crystallized the moment that Ahmad asked, “What do you need?” as DC Limsiaco had already connected the tip to the person on the phone. With this, the Court in Ahmad was satisfied that the ONSC did not err in its conclusion that the officers had reasonable suspicion prior to providing Ahmad with the opportunity to commit drug trafficking. Ahmad’s appeal was dismissed by the Court.
In Mr. Williams’ case, DC Canepa had posed the question regarding the “80” immediately following a confirmation that the individual on the other end of the call was Jay. The difference between this situation and that of Ahmad is that the Court found nothing in Williams’ responses prior to the direct question that would have suggested that the phone number was being used to sell drugs. DC Canepa did not wait to see how Williams would respond to probing questions that could have possibly corroborated that Williams was involved in drug trafficking prior to providing him with the opportunity to commit the crime. The only information that had been corroborated was that the individual he was speaking to did go by the name “Jay.” As a result, the Court allowed Mr. Williams’ appeal, reinstating the stay of proceedings entered by the ONSC.
Dissent finds framework gone astray
In Ahmad’s dissent , Moldaver J suggested that dial-a-dope jurisprudence had revealed issues with the way in which the doctrine of entrapment works in today’s criminal landscape. The days of low-level drug dealers being fixed to a certain location are long gone; dealers operate with the use of mobile phones and other means of instant communication, allowing them to operate from any location in order to evade law enforcement. It was the view of the dissent that the Mack framework had failed to remain faithful to the balance that was intended in Mack and Barnes. The doctrine was intended to balance effective law enforcement with the protection of individuals legitimate interests. Moldaver J in Ahmad suggested that the bona fide inquiry prong of the framework required revision to “ensure that only the clearest cases of intolerable state conduct are captured by the doctrine of entrapment by refocusing the doctrine on its principled origin: abuse of process”. The dissent in Ahmad would have dismissed both appeals.
Revision of unrealistic framework required
I am of the opinion that the dissent in Ahmad got this case right. As drug traffickers are able to operate almost exclusively through their phone, police powers should expand in a way to effectively address this reality without it being considered an abuse of process. When a tip comes in identifying a specific individual and connecting them to a specific telephone number, engaging in a telephone call with that number where the individual on the other end is willing to entertain a stranger’s request for drugs should be sufficient to raise reasonable suspicion. The practice of carefully reviewing the correspondence between the officer and the suspected drug trafficker with a fine-tooth comb to find the exact moment entrapment occurs limits law enforcement’s ability to address these types of offences. I am of the same mindset as Moldaver J that a revision of the bona fide inquiry prong of the entrapment doctrine is required in order to rebalance the need for effective law enforcement with the desire to protect individual’s legitimate interests.