The Final Word on Entrapment? - Daniele Zerbo

The Supreme Court of Canada (“the Court”) recently had the opportunity to revisit the entrapment doctrine established in R v Mack (“Mack") ver three decades ago. This paper will discuss the background of the entrapment doctrine and how the Court applied it in the context of “dial-a-dope” drug trafficking operations. R v Ahmad (“Ahmad") represents a division on the subject because there was only a narrow majority. Notably, Chief Justice Wagner was in dissent and so it will be interesting to see if Ahmad will be re-examined in the future and whether the majority judgment will gain more prevalence or whether the dissent’s view will be more readily embraced.

Entrapment Jurisprudence in Canada

In Mack, the Court settled the law as it relates to entrapment in Canada. There are essentially two branches of the doctrine, either one is enough to establish a claim of entrapment by an accused and trigger a stay of proceedings. Entrapment occurs when (a) authorities provide a person with an opportunity to commit an offence without the presence of a reasonable suspicion or acting in bad faith; or (b) despite having a reasonable suspicion or acting in the course of a bona fide inquiry, the authorities go beyond merely providing an opportunity to commit an offence and instead induce the commission of an offence. The purpose of the entrapment doctrine generally is to affirm the deeply held democratic value that the ends do not justify the means.

Although there is an interest in apprehending offenders, and authorities need a certain degree of discretion in how they go about doing this, authorities may not resort to unacceptable methods. In other words, it is not permissible in a free and democratic society to allow agents of the state to utilize entrapment methods against citizens in order to secure convictions. Entrapment amounts to police involvement in the commission of an offence and to allow such tactics would bring the administration of justice into disrepute.

The underlying rationale of the entrapment doctrine is rooted in the judiciary’s inherent jurisdiction to prevent the abuse of its own process. Unlike substantive defences, the entrapment doctrine does not afford the accused an acquittal. Instead, if entrapment is established, a court is enabled to declare a stay of proceedings. This is so because, in most cases of entrapment, all the elements of the offence are established. There is usually no reasonable doubt as to the guilt of the accused so the guilty offender does not merit an acquittal. Instead, the stay of proceedings symbolizes that the Crown, as a result of its abuse of process, is not entitled to the conviction because the means employed were unjustifiable. A stay of proceedings solidifies the importance of personal freedom whereby the state may not intrude into the private lives of its citizens and engage in random virtue testing by inducing the commission of offences.

Interestingly, the Court in Ahmad indicated that the ends do justify the means in at least three situations. Specifically, the Court in Ahmad stated that drug trafficking, child luring and terrorism represent offences that are otherwise difficult to investigate. In such cases, there is a need to balance the public interest in apprehending those who perpetrate or attempt to perpetrate such crimes and granting the police a degree of flexibility to develop “effective proactive law-enforcement measures to suppress crime”.

While one can appreciate that there is a public interest in preventing such offences from occurring, this nonetheless contradicts the notion that the end does not justify the means. Obviously, this is simply not the case in relation to certain offences. The Court itself acknowledges this contradiction which reinforces the safeguards imposed in Mack against “opportunity-based entrapment.”

Under the first branch of the Mack doctrine, police can present a person with an opportunity to commit an offence but only upon forming the required reasonable suspicion that either (a) a specific person is engaged in criminal activity or (b) criminal activity is occurring at a specific location, often referred to as a bona fide inquiry. An investigation is “bona fide” if the police have a reasonable suspicion over a location or area coupled with a legitimate purpose for the investigation and prevention of crime. The offer of an opportunity to commit an offence must be rooted in a reasonable suspicion of specific criminal activity, whether by an individual, in a defined place or some combination of both. In the Court’s view, this framework reconciled competing public interest. Specifically, the Court stated that “the rule of law, and the need to protect privacy interests and personal freedom from state overreach are balanced against the state’s legitimate interest in investigating and prosecuting crime by permitting but also constraining entrapment techniques” (citing Mack, at pp 941–42, emphasis in original).

The Court narrowly upheld the “careful balance struck” in prior entrapment jurisprudence in Ahmad. The majority reasoned that there was no legitimate reason to interfere with a well-established framework that has withstood the “test of time”. Essentially, the Court defended the doctrine as capable of adapting to various circumstances.

Before examining the analysis of both the majority and dissenting justices, a brief overview of the facts is necessary. Ahmad involved two accused’s appeals heard together. What is important is the minute distinction between the circumstances of Mr. Ahmad and Mr. Williams that led to the Court’s concluding that Ahmad was not entrapped whereas Williams was entrapped.

A Dial-a-Dope Scheme and Two Accuseds

With regard to Mr. Ahmad, the police received a tip that a phone number was being used for the purposes of drug trafficking—a so-called “dial-a-dope” scheme whereby an individual calls a phone number to request drugs and later meets with the seller to complete the sale. In this case, the police phoned the number and arranged to meet with Ahmad. The officer assigned asked for cocaine using slang and Mr. Ahmad agreed to meet to complete the sale.

The two met and the officer exchanged money for cocaine. The police arrested and searched Ahmad and found an envelope with cash and a cell phone that had been used as the dial-a-dope line. Ahmad was also in possession of a large amount of cocaine. Ahmad was subsequently charged and convicted of possession for the purpose of trafficking and two counts of possession of the proceeds of crime.

Similarly, a police officer with the drug squad received an information package which included information about Mr. Williams dealing cocaine in Toronto. This included a phone number to reach Mr. Williams for the purpose of arranging the sale of the cocaine. The officer phoned the number and requested some crack cocaine and the man replied with a location to meet where the sale would take place.

The officer met with Mr. Williams, bought the cocaine but at that time did not arrest him. Eleven days later, the officer arranged a second sale with him. The sale was completed but the officer did not arrest Mr. Williams. A month later, he was finally arrested. At trial, the judge entered a stay of proceedings based on the fact that there was no reasonable suspicion prior to the officer providing Mr. Williams the opportunity to commit the offence.

The Crown appealed the stay of proceedings in relation to Mr. Williams. Defence counsel for Mr. Ahmad appealed his conviction on the basis that he was entrapped. The appellant court concluded that neither Williams nor Ahmad were entrapped, stating that “... [W]here reasonable suspicion related to the phone number itself, the police can provide opportunities to commit offences to a person associated with that phone number, even if they do not also have a reasonable suspicion about the person who answers the phone”.

Both accuseds’ appeals were heard together by the Court. Four issues were examined in relation to the entrapment doctrine in the context of “dial-a-dope” schemes. This paper will focus on two of the four issues identified: (1) whether a phone number or “virtual location” constitutes a location for the purposes of the entrapment doctrine and (2) which circumstances may give rise to a reasonable suspicion in the dial-a-dope context.

The Majority Upholds the Rules of Entrapment

Can police form reasonable suspicion over virtual places like a phone number?

Virtual places are not limited to phone numbers alone but include things like message boards on a website. One intervener disagreed that a phone number can qualify as a place for the purposes of the entrapment doctrine because of privacy concerns that are unique to virtual places as compared with physical places. With respect to a phone number, a person’s reasonable expectation of privacy is higher than in a public place where one might expect to encounter police. Similarly, the BC Civil Liberties Association argued that a major concern was that the definition of places, whether virtual or physical, may be overbroad and thus undermine the entire purpose of the entrapment doctrine as a mechanism to protect an accused from the overreach of the state.

The Court in Ahmad did not entirely dismiss this argument but noted that technology aids in the commission of crime and thus that law enforcement agencies must similarly utilize technology in order to detect offences. Furthermore, the Court noted that, while some virtual spaces may be too broad to support reasonable suspicion, that is not the case with a single phone number. Reasonable suspicion for the purpose of the first branch of the entrapment doctrine can be formed from a single phone number which is “precisely and narrowly defined”.

In order for a virtual place to qualify as a “place” for the purpose of the first branch of the entrapment doctrine, it must be precisely and narrowly defined. Based on the Ahmad majority’s reasoning, an email address or a forum could thus qualify as a place for the purpose of the doctrine. The Court was satisfied that, so long as such spaces are defined in this manner, citizens are protected from random “virtue testing” on part of the police. The Court further confirmed that entire websites or forums will rarely if ever be “sufficiently particularized to support reasonable suspicion. To permit police to target wide virtual spaces is inconsistent with [the entrapment doctrine] ...”

The Court in Ahmad cautioned against “categorical distinctions” over whether the reasonable suspicion is grounding in relation to the individual or the phone number itself. According to the Court, the question is always to be an objective one: whether there are objectively ascertainable factors that support a reasonable suspicion for drug trafficking by the individual who answers the phone when police provide the opportunity to commit an offence. The factors might relate to the individual or the phone number, or both.

How can police ground a reasonable suspicion in the context of “dial-a-dope” settings?

The reasonable suspicion standard is essential to the first branch of the doctrine established in Mack. A reasonable suspicion is defined as an objective standard that protects the interests of individuals and preserves the rule of law by ensuring that courts are able to review police conduct in a manner that is meaningful. It is a lower standard than reasonable grounds which provides the police with flexibility to enforce the law and prevent offences from occurring. In the context of the entrapment doctrine, reasonable suspicion is concerned with police officers themselves becoming involved in the commission of a crime which occurs when a police officer, absent reasonable suspicion, induces the commission of the offence.

Such practices are obviously not in accordance with the principles of justice in Canada. As reasonable suspicion allows a police officer to conduct him or herself in a manner that would otherwise be impermissible, the standard is subject to intense judicial scrutiny. The suspicion must not be arbitrary. Rather, it must be focused, precise, and based on objective facts that withstand independent scrutiny.

In the context of “dial-a-dope”, a police officer can form reasonable suspicion prior to making the call. In addition, the police officer can form reasonable suspicion while on the call itself. So long as reasonable suspicion is formed prior to an officer offering an opportunity to commit the offence, the entrapment doctrine will not be triggered. Although police have discretion as to how to investigate offences, a bare tip alone cannot ground a reasonable suspicion. Ultimately, the majority allowed dismissed Mr. Ahmad’s appeal and allowed Mr. Williams’ appeal.

The Dissent’s Dismissal of the Entrapment Doctrine

Justice Moldaver, on the other hand, would have dismissed both appeals altogether. Indeed, he called for a new analytical approach to entrapment because the “criminal landscape has changed dramatically since the seminal entrapment cases”. According to the Ahmad dissent, it is no longer the case that drug traffickers are associated with a location alone. Instead, the advent of technology allows dealers to run “dial-a-dope” schemes not tied to phone numbers but instead utilizing other forms of instantaneous communications. As such, it has become increasingly difficult for police to detect and prevent drug offences from occurring. In the dissent’s view, the application of the entrapment doctrine reveals issues with the framework itself as well as policy concerns that must be addressed.

Ahmad dealt only with the first branch of entrapment which itself has two subsequent prongs—individualized suspicion on the one hand and bona fide inquiry on the other. In the context of dial-a-dope schemes, the prong of individualized suspicion leads to results that deviate from what is standard or expected. Even if an officer does not form an individualized reasonable suspicion at the time he or she provides an opportunity to commit an offence, the police conduct cannot be said to rise to the level of an abuse of process that justifies a stay of proceedings.

The prong of individualized suspicion has been interpreted to require an unprincipled parsing of conversations between the police and an accused to determine if entrapment has occurred. The distinctions that courts have drawn are detached from the abuse of process doctrine that is the fundamental basis for entrapment. The formal requirement of reasonable suspicion, courts in some jurisdictions have drawn a distinction between “investigative steps” and offering an “opportunity”. The problem with this approach is how courts come to draw the line between the two. Investigative steps involve engaging with potential drug deals over the phone and asking them general questions as to their ability to procure drugs. On the other hand, an opportunity is a direct request to purchase a specified quantity of drugs.

The Ahmad case illustrates the distinction between individualized suspicion and a bona fide inquiry and, consequently, the vastly different conclusion that arises from one interpretation or the other. While Mr. Ahmad was not entrapped, Mr. Williams was entrapped. In reality, the police knew full well that Mr. Williams was a drug dealer. As mentioned in Ahmad, the police had a file on Mr. Williams. it is unclear how the majority did not find this to be enough to ground a reasonable suspicion well before the phone call was made.

As the dissent in Ahmad pointed out, there is no practical difference between asking if someone sells drugs and asking if someone will sell you drugs? The dissent noted that the entrapment doctrine was not meant to interfere with law enforcement’s ability to investigate and prevent crime so long as their tactics were not viewed by society as intolerable and were necessary to the investigation with respect to certain kinds of offences.

Drug trafficking is one of those certain kinds of offences that the dissent felt merited special consideration. The dissent in Ahmad emphasized that the remedy of a stay of proceedings signified a serious abuse of process and that the doctrine of entrapment should not be so readily applied. In Ahmad, Justice Moldaver “struggle[d] to see how the conduct of either undercover officer in the cases [...] could be viewed as intolerable”.

With respect to the bona fide inquiry prong, Justice Moldaver reasoned that the reasonable suspicion standard has evolved since it was established in earlier cases and is problematic in dial-a-dope contexts. He proposed that it ought to be revised completely. Under the revised bona fide inquiry framework, a police officer should be found to be acting in accordance with a bona fide inquiry where: (a) their investigation was motivated by genuine law enforcement purposes, (b) they had a factually-grounded basis for their investigation, and (c) their investigation was directed at investigating a specific type of crime within a tightly circumscribed location whether it is a physical or virtual location. This framework adequately restrains police conduct and does not permit police to provide opportunities in an unrestricted manner. Furthermore, such a framework would still ensure that police are not engaging in random virtue-testing of citizens.

Divergence in the Court

Ahmad represents a clear difference of opinion within the Court. The Ahmad majority was secured only narrowly and I suspect that in due course the Court will have the opportunity to examine this issue once again. As noted above, Justice Moldaver and the other dissenting Justices felt that the entrapment doctrine no longer fits in the modern criminal law landscape and that the time has come to overhaul it entirely.

The Ahmad majority, however, considered that the entrapment doctrine is still applicable despite the changing landscape of criminality. Notably, the presence of Chief Justice Wagner in the dissent lends to the possibility that in the future, the dissent’s framework may prevail. What remains to be seen is whether or not the well-established, and uniquely Canadian entrapment doctrine will continue to stand the test of time.