the Entrapment Doctrine - Chashan Brar

In R v Ahmad (“Ahmad”), which involved two different accused, Javid Ahmad and Landon Williams, the police entrapped both individuals by manipulating dial-a-dope operations. Regarding Javid Ahmad, the police received an unsubstantiated tip regarding a phone number associated with a suspected dial-a-dope operation. These operations involve drug traffickers using cell phones to connect with their customers. The officers in Ahmad called the numbers without investigating the reliability of the information and requested illicit drugs, arranging a meeting to process the transactions. After the conversation on the phone, the officer went to the meeting area and called the number again to meet the man who he had talked to. A man came forward and exchanged $140 for two small bags of cocaine. Immediately after this interaction, the police arrested and searched the man which was later revealed as Javid Ahmad.

In Landon Williams’ scenario, the police officer received an information package from another officer about “Jay” who was alleged to be selling cocaine. The package identified Jay as Williams and included information (about him. Without inquiring about the reliability of the source, the police officer called the number. The person who answered the phone confirmed his name was Jay. The officer requested “80 hard” and the man responded that they should meet at a particular intersection. The officer met the man who was later revealed to be William. After a month, Williams was arrested.

The Entrapment Doctrine

In R v Mack (“Mack”), two alternative branches were set out, either one of them being sufficient to conclude an accused’s claim of entrapment and justifying a stay of proceedings:

“There is entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, (b) having 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”.

The entrapment doctrine was established to protect the public’s interest in protecting their personal freedom and privacy against the state’s invasive power to investigate in order to prosecute a crime. In Mack, the Supreme Court of Canada (“the Court”) found that the entrapment doctrine is not a substantive defense that leads to an acquittal but instead merely leads to a stay of proceedings.

In Ahmad, the Court dismissed Ahmad’s case on the basis of the entrapment doctrine. At the same time, the Court allowed Williams’ appeal, reinstating Williams’ stay of proceedings.

On appeal, the Court brought several issues forward to determine whether the entrapment doctrine was valid. The two issues that I will address are, firstly, whether a phone number can qualify as a place over which the police may form reasonable suspicion and, secondly, how reasonable suspicion applies to dial-a-dope investigations. In coming to their decision, the SCC applied the entrapment doctrine in Mack to come to a just and fair decision for Ahmad and Williams.

Phone Numbers as Places

Phone numbers and virtual places differ from physical, public locations. Conversations over the phone, including text messages, convey a higher expectation of privacy than conversations that take place in a public setting. Technology and remote communication have increased the number of opportunities that police investigators can provide to individuals to commit a crime, increasing the risk of innocent individuals becoming a target. In R v Fearon (“Fearon”), the Court stated that technology poses a great threat to an individual’s privacy. Privacy is essential to human dignity, democracy, and self-determination.

The Court in Fearon held that an individual’s phone number should not qualify as a location unless the police officer has a reasonable suspicion from a reliable source. In R v Barnes, the Court found that individuals must have the right to enjoy their privacy free from state intrusion. Section 8 of the Canadian Charter of Rights and Freedoms (“Charter”) protects individuals from unreasonable search or seizure. Through the entrapment doctrine, in order to protect an individual’s right under section 8 of the Charter, the police must have a reasonable suspicion over the individual or a well-defined virtual space, such as a phone number, before they proceed and provide an opportunity to commit a crime.

Reasonable Suspicion in Dial-a-Dope Investigations

The reasonable suspicion standard is an objective assessment that protects the interests and rights of individuals and preserves the law by ensuring that courts can meaningfully review a police officer’s conduct. Reasonable suspicion “allows the police officers flexibility in enforcing the law and preventing the crime”.

In R v Chehil, the Court described that reasonable suspicion requires “factual elements which can be adduced in evidence and permit an independent assessment.” To assess whether reasonable suspicion is present when police provide an opportunity to commit a crime, it is important to assess when that opportunity has occurred. In Ahmad, the opportunity arose in a telephone conversation when “an affirmative response to the question posed by the officer that could satisfy the material elements of an offence was obtained.” In the context of the dial-a-dope investigation, it needed to be determined whether the words that were spoken by the police officer constituted an opportunity to commit a crime.

In R v Imoro (“Imoro”), the Court found that there was no entrapment. The brief conversation that took place between the police officer and Imoro could not ground a finding of entrapment because the question “Can you hook me up” was a step towards the direction of the police officer’s investigation of the anonymous tip. The question did not provide the accused in Imoro with an opportunity to commit a crime, however, because the opportunity was given later when the police officer followed the accused back to his apartment. The police officer observed the drug transaction that occurred between Imoro and another individual, giving the officer a reasonable suspicion that Imoro was certainly engaged in drug trafficking.

In Ahmad, the Court clarified that the initial contact between Ahmad and the police did not satisfy the reasonable suspicion standard. The officer provided Ahmad with an opportunity when Ahmad responded by asking what he needed, to which the officer replied “2 soft”, a term that refers to the amount of cocaine required. Furthermore, the accused in Ahmad did not deny when the officer asked if Ahmad was Romeo or question who Matt was. There might not seem to be a clear indication of an opportunity to commit a crime occurring in both of these cases. However, the police officers in Ahmad sufficiently provided an opportunity to commit a crime and obtained a reasonable suspicion to arrest the individuals.

In Ahmad, Williams, unlike Ahmad, had been entrapped by the police. When the police officer called “Jay” after receiving a package with the phone number and the name “Jay” to Williams, the person that answered the phone immediately confirmed they were speaking with Jay. The police officer supposedly presented Williams with an opportunity to traffic drugs when the officer requested to sell him “80”. Although the police officer proceeded on the assumption that Jay was linked to Williams, there was a lack of evidence that showed a sufficient link between the two names. Accordingly, the police failed to obtain a reasonable suspicion before providing any opportunity to commit a crime.

In the case of R v Swan (“Swan”), the officers failed to obtain a reasonable suspicion that the person who answered the phone was involved in a drug-related activity. The officer that assumed “working” meant selling drugs was found by the British Columbia Court of Appeal to have a perfectly innocent meaning. In both Ahmad and Swan, it was important for the officers to obtain a reasonable suspicion before they gave the accused the opportunity to commit a crime.

New Precision Required for Entrapment Doctrine

The function of a police officer is to prevent or detect crime, not to cause it. The entrapment doctrine can be seen as a safeguard that protects individuals against police profiling. However, I believe that the use of entrapment as a tool of investigation is paradoxical. Police officers attempt to arrest individuals who commit a crime, but these officers can be found to be breaching the criminal law when improperly executing an arrest. In order to maintain the integrity of the entrapment doctrine, the unwarranted actions of police officers should be curtailed by the creation of definite rules which clarify what is permitted and what is not permitted in enactment of the entrapment doctrine. The approach of establishing definite rules in relation to the entrapment doctrine would be explicitly setting out and prohibiting entrapment maneuvers.

The purpose of section 8 of the Charter is to protect individuals from the unjustified intrusion of their privacy. As a result, there must be methods in place that prevent state officials from taking part in unjustified searches. As commonly seen today, officers’ implicit biases (i.e. racism) is impacting who they see as a suspect. The lack of clarity in laws that prevent such acts from taking place creates dangerous implications for individuals who are marginalized. The entrapment doctrine, which utilizes the standard of a reasonable suspicion, can create many obstacles for those disadvantaged groups. For example, people of low socioeconomic status have a higher risk of being investigated. Therefore, the searches conducted by police officers must be carefully articulated.