With a Little “Help” From My Friends - Evan Kwong
Balancing the rights and freedoms of individuals with the power given to police to serve and protect is a difficult issue that the courts have made an effort to resolve in cases like R v Mack (“Mack”), R v Barnes, and now R v Ahmad (“Ahmad”). Although the investigation of crime is in the public interest, police cannot be given absolute power to investigate as that would go against the rights of individuals enshrined in the Canadian Charter of Rights and Freedom (“the Charter”). Still, police require various investigative techniques in order to effectively enforce the criminal law. As such, it is the duty of the courts to determine exactly how far police can go in their investigative efforts.
Mack has been the leading case on entrapment law in Canada for the past 30 years. In this case, the Supreme Court of Canada (“the Court”) found that police may step beyond their normal investigative role and offer people the opportunity to commit a crime so long as they have reasonable suspicion and do not go beyond merely providing an opportunity to commit a crime. In Mack, the Court found that entrapment did occur as a result of the police threatening Mack, which was considered unacceptable and going beyond providing an opportunity to commit a crime.
A suspicious request for help
In Ahmad, Detective Constable Michael Limsiaco was informed by another officer that a person named “Romeo” was selling drugs over the phone. Without further investigation into the reliability of this information or the means in which it was obtained, Limsiaco started a “dial-a-dope” investigation, calling the number and beginning a conversation with the man on the other line. The conversation started with the officer asking if the man could “help him out” and if the man was Romeo. The man on the line replied asking what the officer needed. The officer responded, asking for 2 grams of cocaine in slang language, to which the man agreed; they set a meeting place. Limsiaco eventually met the man on the phone and exchanged $140 for two bags of cocaine. Next, police arrested the man, who turned out to be Ahmad. The police searched him, finding an envelope of cash with the name “Romeo” on it, the cell phone used for the call, and Ahmad’s backpack which contained a large quantity of cocaine and cash.
At trial, the judge in Ahmad concluded that Ahmad had not been entrapped and he was convicted of one count of possession of cocaine for the purpose of trafficking and two counts of possession of the proceeds of crime. On appeal, the trial judge’s decision was affirmed on the basis that where reasonable suspicion relates to a phone number, the police can provide the opportunity to create a crime to a person associated with that phone, whether or not the police have a reasonable expectation towards the person that actually answers the phone.
The Court in Ahmad made a point to highlight that “consensual” crimes like drug trafficking are often more difficult to investigate and therefore it is in the public interest that police have flexibility in their law-enforcement measures in order to effectively enforce the criminal law. Still, this flexibility cannot come at the cost of the liberties and freedoms of citizens. The Court balances these interests by requiring there be reasonable suspicion of criminal activity. In this case, one of the main issues was determining what circumstances can give rise to reasonable suspicion in the dial-a-dope context.
The Court in Ahmad took issue with the lack of steps police took before giving Mr. Ahmad the opportunity to commit a crime. The Court stated that reasonable suspicion cannot be grounded on a bald tip alone, and that police have a plethora of other options they can use to confirm the reliability of such a tip to show reasonable suspicion. Given the implications that this sort of police activity has on an individual’s right to liberty, privacy, and equality, the Court must be strict and rigorous when assessing the legality of these actions.
The Court in Ahmad found that dial-a-dope situations are unique in that conversations are both a means of forming a reasonable suspicion and the means of committing the offence itself. As such, the Court clarified that, in similar situations, as long as the offer was not made before that reasonable suspicion is established there is no entrapment. The Court also found that the officers in Ahmad did abide by this rule; the offer made to Mr. Ahmad was not made before reasonable suspicion formed. Ahmad’s actions of not questioning the name Romeo, engaging the officer when they asked for “help” were significant factors in Ahmad. The reasonable suspicion in this case was established by the entirety of Mr. Ahmad’s actions, despite the fact that taken individually these factors would not be sufficient.
Ahmad is significant as it establishes several factors that a Court may find relevant in determining the existence of reasonable suspicion in entrapment law cases. The Court also affirmed that the way in which it analyses the existence of reasonable suspicion must be done in a strict and rigorous manner. The decision in Ahmad was an extremely close call for the Court and will likely not result in an unreasonable expansion of police powers. Police will hopefully now be more influenced to take additional measures to confirm a reasonable suspicion from tips.
Although the result from Ahmad would seem to indicate that the Court is pushing the balance of powers towards the police, that may not be the case. While this trial was held, R v Williams (“Williams”) was also heard, the facts in both cases being very similar. Where the two cases differ is the timing of the offer to create a crime. In Williams, the offer was made prior to the accused providing any sort of indication that his phone number was used for crime. This negated any opportunity for the police to have established a reasonable suspicion prior to the request to buy drugs, contrary to the ratio from Mack. It was also decided in Ahmad that a bare tip from an unverified source cannot ground reasonable suspicion, which again shows the Court’s intention to protect individual rights.
The courts largely succeed in balancing interests
I believe that the contrasting Williams case shows that the Court will fight for the rights of individuals while keeping police powers in check. Given the great degree of similarity of the two cases, the different outcomes prove that police activity will be judged objectively on a strict and rigorous basis. Dial-a-dope investigations will continue to be a tool that police can use, so long as they abide by the limitations set out in Mack. The Court also provided a plethora of options that police can implement in similar investigations in order to objectively prove their suspicions. This affirms the police’s ability to use dial-a-dope schemes while also protecting the rights of individuals.
Ultimately, given the heavy consequence that a criminal conviction holds, criminal investigations must always be performed with the utmost respect to the rights of accused individuals. The decision from this case adds to the definition of entrapment by clarifying relevant factors to consider in dial-a-dope situations. I believe that the Court has done well to protect individual interests in this case while balancing society’s interest in upholding the law.