“Dancing on the Head of Pin”: Entrapment’s Concerning Development in R v Ahmad - Liam Keller

The reality of the modern criminal justice system in Canada, in its detailed particularities, is arguably rather mundane. Indeed, the proverbial dart thrown blindly to a spinning wheel of trial court decisions this year is likely only to provide an hour’s worth of dull reading—a far cry from the Hollywood glamour so frequently attached to criminal law. And yet, given enough time to sift through these cases, those familiar fan favourites will invariably shine through: the unrepentant killer, the vindication of an innocent and, of course, the seemingly ever-present availability of law enforcement agents willing to cut corners.

Unlawful methods employed by the police are frequently at the forefront of public discourse, and deservedly so. One such unlawful practice, often referenced but not always well-understood, is that of entrapment; 1 in the recent Supreme Court of Canada decision of R. v. Ahmad, its role as a procedural defence in this country was reviewed and defined to a decidedly fine point. 2 Unfortunately, this highly technical analysis, culminating in a 5-4 split decision, seemingly overshoots its salutary objective of curbing abuse of process. Arguably, the decision represents a departure from the moral and logical basis for the entrapment defence and the confines within which it might be employed. By effectively forcing police officers to use highly specific language in investigations into so-called “dial-a-dope” schemes, entrapment has been elevated to a defence that can frustrate legitimate police operations while doing little to protect the innocent or maintain the integrity of the Canadian justice system. 3

The modern law of entrapment in Canada has its origins in the seminal 1988 Supreme Court case of R. v. Mack.4 From Mack, two forms of entrapment emerged: “opportunity based entrapment” and “inducement-based entrapment”. 5 In the former, the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion or pursuant to a “bona fide inquiry”. 6 In the latter, despite having satisfied these previous requirements, authorities go beyond providing an opportunity and induce the commission of an offence. 7 A successful claim under either prong of this test will result in a stay of proceedings, rather than an acquittal. 8

On a fundamental level, the entrapment defence might be thought of as a means to protect the individual who, but for the actions of law enforcement, would not have committed the crime of which they are now charged. 9 This is distinct from the individual for whom the conduct merely provided one opportunity for criminal activity in which he or she was already engaged.10 Notably, however, because of how recent the Supreme Court’s contemporary recognition of it is, there have been limited appellate decisions to clarify and refine entrapment as a defence defined by the Mack test. 11 Ahmad constituted a useful opportunity for such refinement: an opportunity, unfortunately, eschewed in the majority decision.

The cases of R. v. Ahmad and R. v. Williams were heard together; a brief examination of the facts reveals how similar they truly are. The accused were both charged with drug-related offences following police investigations into “dial-a-dope” schemes operating in Toronto.12 These operations are not overly complex: customers contact dealers via cell phones to set a price and location for the purchase of illicit drugs.13 Both Ahmad and Williams were contacted by undercover officers acting on anonymous tips.14 The tips provided in each instance a name, a number, and an allegation that drugs were being sold, and in both calls a price was agreed upon, a meeting arranged, and an arrest was subsequently made.15 Yet the Supreme Court drew a distinction between these two situations, setting aside Williams’ conviction but upholding that of Ahmed.16 Where, then, do the facts differ?

The distinction might most succinctly by provided in the dissenting opinion, as written by Moldaver J.: “The only distinction between the cases is that the undercover officer in W’s case used a drop name before asking for a specific quantity of cocaine, whereas the… officer in A’s case used a drop name and waited for A to say ‘what do you need?’ before asking for a specific quantity…”17 This confirmed familiarity on the part of Ahmad with what the majority termed “language particular to the drug subculture” 18 granted the reasonable suspicion that a bare tip, in their view, could not. Although Williams demonstrated a similar familiarity, it occurred after the opportunity to commit a crime had been provided, and thus he had been entrapped under the first prong of the Mack test. 19 Indeed, in driving an artificial wedge into perhaps the only brief seconds of distinction between these two cases, the Court cannot be faulted in the satisfaction of its own technical standard. However, such formal applications of the law risk detracting from its underlying intention—as the dissent unreservedly opines, the trouble is less whether the facts in Ahmad can be made to satisfy the first prong of the Mack test, but that the prong’s original definition cannot be applied faithfully to present-day dial-a-dope operations.

In his delivery of the majority judgement in Mack, Lamer J. provided insight into the underlying purpose and nature of the entrapment defence, and specifically with regard to its use in cases involving drug-related offences. Importantly, underscored is the notion that entrapment is only to be recognized in the “clearest of cases”, 20 as well as the cautionary note that law enforcement should be given substantial leeway in cases of drug-related offences, given the social consequences of these crimes and the inefficacy of traditional investigative devices in dealing with them. 21 The decision went on to clarify that a judge should “consider the question [of entrapment] from the perspective of a reasonable person… The issue is maintaining respect for the values which… hold the community together.” 22 In Mack, extreme circumstances including a police informer’s use of threats, his persistence and his inducement of a large sum of money clearly indicate—a reasonable person would surely agree—an abuse of process, and warrant a stay of proceedings. 23 Whether the same can be said of the officer’s conduct in Ahmad is doubtful, at minimum.

To this end let us insert ourselves, for a moment, into the inescapably relevant—if at times irritatingly well-polished—shoes of the “reasonable person”. Supposing, for reasons unknown, the reasonable person had been the blameless target of a mysterious and malicious anonymous tip to the police. Importantly, she is not engaged in any kind of drug-related crimes; the tip has no evidentiary basis. She is then called, and asked to affirm her identity. Having done so, she posed the following: “Jesse from Queen and Jarvis gave me your name...your number. Said you could help me out. I need 80.” The notion that when presented such an opportunity, she might reply with, “Okay. You have to come to me,” deserves little consideration. More likely, someone not already engaged in the sale of drugs in such a manner might simply hang up the phone. And yet this exchange, taken verbatim from Ahmad, is what occurred in fact between Williams and the officer in his case. 24 The request was highly targeted—based on a tip that a specific drug was being sold over a specific phone number by a specific person.

This kind of targeted request, done without persistence or threat and with the anonymity of a phone call negating any potential for discrimination, can hardly be said to represent an abuse of process worthy of a stay of proceedings. Similarly, the risk that a reasonable observer might consider the officer’s conduct in Ahmad to have offended the very integrity of our justice system is simply insubstantial. That individual whom the entrapment defence is intended to protect—he or she who would not have committed the crime in question if not for an officer’s conduct—would evidently not have been at risk in the situation at hand.

In Ahmad, many of these considerable misgivings are present in the dissenting opinion. Ultimately, a reasonable review of the entrapment defence as established in Mack should not produce such meticulously specific requirements on the vocabulary employed by officers. This highly tailored dialogue, in its absurdity, is likened by Moldaver J. to “dancing on the head of a pin.” 25 Rather, it seems a clear indication that the reasonable suspicion prong of the Mack test is in need of reform. It might be that a new test altogether would be preferable. The dissent recommends one requiring a degree of specificity and factual grounding beyond a mere “hunch” to legitimize police investigations. 26 Alternatively, it has been suggested that inducement-based entrapment should be eliminated altogether, with its more compelling elements folded into the Charter’s general abuse of process doctrine. 27 Undoubtedly, there are many options at the disposal of the courts; hopefully some will appear at the forefront of rhetoric in the Canadian judiciary as it considers the defence of entrapment in increasingly novel situations. Truly, reform is preferable to a forced application of Mack that will largely serve to frustrate legitimate police operations rather than protect the ideals of our justice system.

Endnotes..............................

1. Brendon Murphy & John Anderson, “After the Serpent Beguiled Me: Entrapment and Sentencing in Australia and Canada” (2014) 39:2 Queen's LJ 621 at para 21.

2. See R v Ahmad, 2020 SCC 11 at paras 1-3, [Ahmad].

3. Ibid at para 118.

4. See generally R v Mack, [1988] 2 SCR 903, SCJ No 91 [Mack]. See also Steven Penney, “Entrapment Minimalism: Shedding the ‘No Reasonable Suspicion or Bona Fide Inquiry’ Test” (2019) 44:2 Queen's LJ 356 at para 1.

5. Supra note 2 at para 115.

6. Ibid.

7. Ibid.

8. Penney, supra note 4 at para 1.

9. Supra note 1 at para 9.

10. Ibid.

11. Penney, supra note 4 at para 1.

12. Supra note 2 at paras 98 and 104.

13. Ibid at para 3.

14. Ibid at para 126.

15. Ibid.

16. Ibid.

17. Ibid at para 126.

18. Ibid at para 75.

19. Ibid at para 80.

20. Mack, supra note 4 at paras 148-149.

21. Ibid at para 152.

22. Ibid at para 140.

23. Ibid at para 153-154.

24. Supra note 2 at para 126.

25. Ibid at para 142.

26. Ibid at paras 157-162.

27. Penney, supra note 2 at para 52.