R v Ahmad & R v Williams - Matisse Emanuele

This case, R v Ahmad, involves the question of entrapment in the modern era - in short what constitutes police entrapment when they are talking over cell phones and how should the court handle these cases? The decision was split five to four, and the majority ruled that the police need to reasonably suspect that a person answering a phone is involved in criminal activity before offering that person the opportunity to commit a crime. Already we can see this case being used in lower courts as precedent and rule for entrapment and reasonable suspicion. The importance of this case is that it concludes that police may offer a suspect or target the opportunity to commit a crime as long as they have either: A) reasonable suspicion that the person is involved in criminal activity or B) that the police have reasonable suspicion that there is a particular crime being committed in a specific place and that they have the genuine purpose of repressing crime. Importantly, specific places can now include cell phone and text messaging conversations. This blog will discuss this case by first laying out what entrapment means, before discussing the facts of the case and the analysis of the majority and minority positions.

The supreme court in R v Mack allowed the police in some specific instances to give people the opportunity to commit criminal offences. Entrapment happens when the police go beyond the limits set by the court, in effect ‘tricking’ or otherwise inducing people into criminal acts in instances when they would otherwise not do so. The important distinction made by the court here is that of reasonable suspicion. The reasonable suspicion requirement requires police to have a reasonable suspicion about a specific person that they are engaged in illegal activity before police offer the opportunity for the person to commit a crime. In the case of drug dealing an example would be that the police would need to have reasonable suspicion that a specific person is in fact a drug dealer before offering to buy drugs from them. If the police do not have this suspicion it is akin to a police officer going to anyone on the street and tempting them to sell the officer drugs. Another option to the reasonable suspicion requirement is that if the police have reason to suspect that criminal activity is happening in a specific area the police have the genuine purpose of investigating and repressing crime.

Anything beyond these scopes, in essence, without reasonable suspicion, is considered entrapment. As outlined in R v Mack entrapment happens when: (a) “the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides . . . or, (b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.” To put it mildly entrapment is a bad thing. As the supreme court notes in this case, “[Entrapment] threatens the rule of law, undermines society’s sense of decency, justice and fair play, and amounts to an abuse of the legal process of such significance that, where it is shown to have occurred, a stay of proceedings is required.”

R v Ahmad, is actually two cases, R v Ahmad and R v Williams. These cases were put together because they deal with the same issue. However, we will look at their facts separately. In Ahmad’s case, an officer received information from another officer that a person was selling drugs using a specific phone number. The detective called the number without any further investigation into the information given or the reliability of it. After a brief conversation the officer asked for cocaine and the man on the line agreed to meet for the sale. The officer went to the meeting, called the number again, and purchased the cocaine. Police arrested the man, a Mr. Ahmad. At trial, the trial judge found that Mr. Ahmad was not entrapped as the brief conversation on the phone with the officer before the offer to buy drugs led to reasonable suspicion.

In William’s case, an officer, Detective Constable Hewson, who is a member of the drug squad received an information package from another officer about a person who was allegedly selling cocaine in Toronto. The information included the suspects name, Landon Williams, and information about him including that he was a cocaine dealer. The information package said that the assertion that Williams was a cocaine dealer was based on a tip from a confidential source of unknown reliability. There was no other relevant information about the source or the tip in the package. Officer Hewson did not ask about the reliability of the source or the information given. Some of this information was then given to another officer, Detective Constable Canepa, who called the phone number and said that he needed crack cocaine, the man answering the phone replied and a meeting was set up. The man, later revealed as Williams, sold crack cocaine to Officer Canepa on two occasions and was later arrested. The trial judge found that there was “no reasonable suspicion before the officer provided the opportunity to commit a crime.”

The majority decision was to dismiss the appeal in Ahmad’s case and allow the appeal in Williams case. The majority decided that an individual phone number can qualify as a location where police may form reasonable suspicion. Remember that in the rules of reasonable suspicion the police may go to a place where they believe criminal activity is taking place, but they still need to see criminal activity in order to make an arrest. While many may have seen police stakeouts of back alleys and street corners on TV, the idea that that sort of place translates over the phone seems more set for a sci-fi movie. And the majority does note that “a phone number is not the same as a public physical location.” They noted that privacy is the concern here as a phone call or texting between two people is a private activity. Therefore, there must be a narrowing of scope as police do not and should not have the power to phone anyone and tempt them into committing a crime.

Therefore, the majority concluded that the police “cannot offer a person who answers the phone the opportunity to commit an offence without having formed reasonable suspicion that the person using that phone, or that phone number, is engaged in criminal activity.” In this case a tip without a proper verified source is not reasonable suspicion. Yet, if it is corroborated over the course of the phone call, then reasonable suspicion can be concluded. However, the court notes that reviewing transcripts of the phone calls is therefore unavoidable in cases such as Ahmad’s and Williams’ in order to establish that reasonable suspicion occurred before the offer.

In Ahmad’s case the courts concluded that from the phone call between Mr. Ahmad and the officer, the officer had reasonable suspicion prior to offering to buy drugs that Mr. Ahmad was involved in drug trafficking. In Mr. Williams’ case, the court concluded that there was nothing in the conversation before the officer’s asked to buy drugs that would have suggested Mr. Williams’ was involved in drug trafficking and therefore the court concluded that Mr. Williams’ was entrapped.

In contrast the dissent disagreed with the majority in part and would have dismissed both Ahmad and Williams’ cases. The place where the dissent disagreed with the majority was in the “fine line distinction” that the majority's approach demands. The problem they said was that this parsing out of specific words used in a transcript of a conversation creates artificial distinctions where the more reasonable approach is to ask “whether society would view the officer’s conduct, considered in context, as simply intolerable.” The minority points to how only a few specific words (Amed asking what do you need?) were the difference in these two cases. The officer’s conduct, the dissent argues, is the same in both cases and therefore both cases should not be considered entrapment.

This is a difficult case because while I agree with the dissent that the context matters and as a whole in these specific circumstances it seems that there is only the minutiae that divides these two cases, I believe that as a matter of privacy, there needs to be clear limits on police conduct. While in a perfect world we may look at the entire case and decide what society constitutes as intolerable conduct. I think that it is unreasonable to use this standard in deciding entrapment. The reasonable suspicion needs to be concluded before any offering or tempting by the police and it is easy in hindsight to say that police conduct would be tolerable or intolerable but by that point judgement is already coloured by the conduct after the fact which is not relevant to deciding reasonable suspicion. There needs to be a line between what is honourable conduct and what is not, and while in some cases this goes down to the minutiae, I prefer having that line as clear as possible.

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

1 See R v Sahal, [2020] OJ No 5304; see also R v Sinnappillai, [2020] OJ No 4997, and R v Ratcliffe, [2020] OJ No 5185. All three of these cases used the ratio and rulings in Ahmed to discuss and rule on what includes entrapment and reasonable suspicion.

2 R. v. Ahmad, 2020 SCC 11 at para 20 [Ahmad].

3 R v Mack (1988) 2 SCR 903.

4 Supra Ahmad.

5 Ahmad at para 1 quoting R v Mack at p 959.

6 Ibid at para 2.

7 Ibid Ahmad at paras 7-9.

8 Ibid at paras 10-13.

9 Ibid at para 13.

10 Ibid at para 1.

11 Ibid.

12 Ibid at para 2.

13 Ibid at para 5.

14 Ibid.

15 Ibid at para 8.

16 Ibid at para 10.

17 Ibid.