The Thin Blue Line of Reasonable Suspicion: R v Ahmad - Dustin Seguin
Should police be justified—in illegal drug distribution operations—to entrap suspects into committing criminal offences? The case of R v Ahmad is a recent Supreme Court of Canada (SCC) decision that answers this question. Details will be discussed of the two separate cases decided on by the SCC in R v Ahmad; the police power that was used to investigate and form the grounds for arrest of the two accused; the reasoning for the court decision; an opinion on the decision and how I believe it will impact police investigations; and the implications going forward when using the investigative technique.
Two cases recently decided on by the SCC involved Javid Ahmad and Landon Williams; both entail the trafficking of illegal substances in what is termed as a dial-a-dope operation. 1 The original officer, who compiled the information leading to the arrest of Mr. Williams, was a constable with the Toronto Police Service (TPS). He received a tip from a confidential informant (CI) who had revealed that a person by the name of ‘Jay’ was trafficking cocaine. The CI then provided a phone number for the suspected trafficker and the area of Toronto that the drugs were being sold. The constable compiled a package with the specifics of Mr. Williams; this included his address, physical description, and a photograph.
The police had previously obtained information relating to Mr. Williams and knew he went by the alias of ‘Jay’ and that he had been responsible for several drug transactions in the area described by the CI. Mr. Williams also had been previously arrested and convicted for possession of narcotics and was currently out of custody on drug related offences. The constable provided the information gathered to a detective with the TPS. The detective was requested by the constable to make a cold call to contact the suspect. The phone number provided was searched through the police database; no further information was learned.
A member of the Drug Squad called the phone number but was not provided with further background information establishing the link between Mr. Williams and the information provided by the confidential informant. The officer from the Drug Squad engaged in a conversation with Mr. Williams and stated that he wanted to purchase crack cocaine. He did this without formulating a reasonable suspicion that Mr. Williams was trafficking narcotics. Several other calls were commenced after the initial phone call and the officer ultimately purchased $80 worth of crack cocaine from Mr. Williams. 2 The police used this information to obtain a search warrant at a later date and located a firearm with ammunition, marijuana, and two cell phone devices in Mr. Williams’ possession. He was charged with trafficking cocaine and other offences related to the execution of the search warrant.
The second case concerns the same type of dial-a-dope operation but involved Mr. Ahmed. On this occasion, a Detective Constable with the TPS had obtained information regarding the sale of illegal narcotics by a person named Romeo. The Detective was provided with a phone number for the individual from a confidential informant. The Detective contacted the number provided and asked to purchase two grams of powdered cocaine. The Detective asked Mr. Ahmad for the price of the cocaine and was told he would be called back. Mr. Ahmad contacted the Detective back and asked him to meet him at a shopping mall to proceed with the transaction and provided a price of $140 for the requested cocaine. 3 The Detective met Mr. Ahmad at the shopping mall and exchanged funds for the two grams of cocaine. Mr. Ahmed was arrested on site and was charged with trafficking cocaine. 4
At contention in both of these cases are the investigative steps taken by the police to formulate the grounds for arrest. As discussed in the case of R v Mack, the police must not engage in conduct so as to induce the commission of a crime that may not have occurred without their involvement. 5 If actions are taken by the police to encourage the committing of an offence, that may not have occurred without their involvement, then entrapment has occurred. Prior to the police offering to purchase illegal narcotics from a suspect they must form reasonable suspicion. Once the police have formed reasonable suspicion involving the sale of illegal narcotics they can then offer to purchase them from a suspect.
While general questions can be asked such as “can you hook me up or are you rolling” a question cannot be directed as to the purchase of a “specific quantity of drugs.” 6 This leaves the suspect to act on their own accord and not be prompted by the police to commit an offence. Reasonable suspicion has been defined as “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.” 7 The courts in the case of R v Simpson, , also go on to state that a mere “hunch” gained from experience does not meet the standard to form reasonable suspicion, no matter how accurate the hunch may be. 8
The SCC ruled differently in both cases; however, both decisions encompassed discerning principles over reasonable suspicion and entrapment. In the case of Mr. Williams, the SCC majority came to the decision that he was entrapped by the police. The reasoning for the entrapment was that the police had not formed a reasonable suspicion before requesting a particular type of illegal substance from Mr. Williams. “(A) bare tip that someone using a particular phone number was selling drugs and this did not ground reasonable suspicion.” 9 If the officer had waited for Mr. Williams to provide information regarding the sale of the narcotics then entrapment would not have occurred.
In the case of Mr. Ahmad, the SCC came to an alternative conclusion. The police had not posed questions to Mr. Ahmad about the specific sale of narcotics until they had confirmed the information provided by the CI. Once this was completed, the officers only then discussed the type and amount of substances Mr. Ahmad was selling. This slight difference resulted in the SCC upholding the conviction rendered by the Court of Appeal.
These two cases demonstrate the sleight of hand which must be used by police during the course of an investigation to ensure an arrest leads to a conviction. These investigations may not appear to be complex from the outset and may seem to a reader to only involve the sale and purchase of illegal narcotics. The contrast between these cases reveals the infinitesimal details that must be considered by the police during the course of an investigation. The police walk a thin blue line when conducting these types of investigations; a disbalancing of rushed judgment to form reasonable suspicion can lead to the ruin of a laborious investigation. The state has a duty to protect its citizens from the ‘evils’ of illegal drug distribution but to what threshold must the police safeguard the rights of a suspect during an investigation?
In my opinion, the rights of the citizens should trump investigative techniques used by the state to form reasonable suspicion. Entrapment has the opportunity to erode the rights of Canadians significantly. The right to be safeguarded from unreasonable search and seizure as set out in section 8 of the Canadian Charter of Rights and Freedoms can be removed from citizens with relative ease if the grounds to form reasonable suspicion are lowered. The two cases of Ahmad and Williams demonstrate the high standard that police must adhere to when using reasonable suspicion to formulate grounds for an arrest.
The equilibrium that must be struck is one between the state protecting its citizens while concurrently safeguarding their rights. The police are state actors who are attempting, within the confines of the law, to protect citizens from societal ‘evils’. In Canada, the protection of citizens from the threat of illegal substances is an issue which will prevail until policies surrounding drug use and enforcement are addressed. The rulings in the above cases may be observed from the police perspective as a hindrance of their ability to effectively investigate dial-a-dope operations. I am of the opinion that the ruling does not hinder police and their ability to investigate suspected drug distributors; rather, the SCC has provided further guidance for these types of investigations while protecting members of the public from being entrapped into criminal offences. This will ensure that police action is apportioned correctly when deploying reasonable suspicion to form reasonable grounds for arrest.
1 R v Ahmad, 2020 SCC 11 [Ahmad]
2 Ibid at para 12.
3 Ibid at para 104.
4 Ibid at para 104.
6 Ibid at para 120.
7R v Simpson, 1993 CarswellOnt 83, at para 61.
8 Ibid at para 61.
9 Ahmad supra note 1 at para 84.