The Fine Line of Language and Entrapment – R. v. Ahmad - Cole McClelland
Introduction
The recent decision of R. v. Ahmad provides an interpretation of entrapment in the digital age. What were once novel ideas of police reconnaissance and information gathering in The Wire have become standard fare. 1 Understanding when this information gathering crosses over into invasions of privacy and entrapment is a fundamental necessity of the courts, lest the justice system be brought into disrepute. Specifically, what this commentary seeks to discuss is the discourse on expansion of police powers in viewing potential phone-based entrapment through a lens of “bona fide” inquiries rather than specifics of language. 2
Background
R. v. Ahmad comes before the court as two separate cases related to dial-a-dope operations (where the arrangements for the sale of drugs are done via phone) and undercover police efforts to apprehend the individuals running these operations. In doing so, police arranged meetings to purchase drugs over the phone after receiving an unsubstantiated tip from a fellow officer about a dial-a-dope operation. This resulted in the separate arrest of Javid Ahmad and Landon Williams for drug-related offences.
In both trials the defense of entrapment was raised, however the decisions of the trial judges differed based on specific language of the undercover officers over the phone. 3 The phone call with Ahmad was found to have not been offered the opportunity to commit a crime until the tip had been sufficiently corroborated. 4 Conversely, the trial judge in Williams found that there was an opportunity to commit a crime given by the undercover officer before the tip had been substantiated, and that there was no way of confirming the was reasonable suspicion of the number being involved in dial-a-doping. 5
Both cases were appealed, Ahmad in his case and the Crown in the Williams case. 6 Being that there were strong factual and temporal similarities in these two cases, both were heard together in the Ontario Court of Appeal wherein Ahmad’s appeal was dismissed and the Crown’s appeal was allowed. 7 Now before the Supreme Court of Canada, the original decisions of the trial judges were affirmed, Ahmad was not entrapped but Williams was.
Issues Before the Court and Holdings
Four main issues were the basis of the decision:
“Can a phone number -- a virtual place -- qualify as a location for the purposes of entrapment?
What circumstances can give rise to reasonable suspicion in the dial-a-dope context?
How should courts review the conversation between police and the accused in deciding whether reasonable suspicion has been established and when the opportunity to offend was offered?
What constitutes provision of an opportunity to traffic in drugs during a phone call?” 8
The majority decision for Abella, Karakatsanis, Brown, Martin and Kasirer JJ. on these issues, delivered by Karakatsanis, Brown, and Martin JJ., found that personal phones are not in essence the same as a public physical location. 9 Moreover, this “virtual place” attracts a significantly higher standard of privacy, being that one would expect to have their privacy intruded on less with private phone calls. 10 The online anonymity of an undercover police officer allows them much further reach than traditional undercover operations, as such a lack of limits on police investigative practice is not in the public interest. 11
To meet the standard of reasonable suspicion of exploring tips on potential dial-a-doping operations then, a number being used in drug deals must be “sufficiently corroborated”.12 Police may do so before calling the number through investigative work or during the call, but before presenting the individual with an opportunity to commit the crime. 13 The former is preferred by the court. 14
In reviewing spoken word between police officers and individuals suspected of criminal activity, it was the opinion of the Court that unless police are able to undergo corroboration of a tip before the phone call, courts must scrutinize the language used by police officers during the call. 15 Importantly with dial-a-dope in particular, the language must be extra careful not to be entrapping the individual as the call seeks to both corroborate and provide the opportunity of an offence with little temporal difference. 16
Finally, it was the opinion of the majority that the provision of an opportunity to traffic drugs comes in the form of the individual giving definition of the offence and context in which it occurred. 17 In practical terms this means defining what drug is to be sold in response to an inquiry from an officer, covering all material facts of the deal.
In applying the analysis, it was the majority’s decision that Ahmad had not been entrapped, however Williams had. This can be understood in looking at the specific language used in light of the Court’s analysis. For Ahmad:
“Male: Hello
Officer: Hey, It's Mike, Matt said I can give you a call, this is Romeo?
Male [Ahamd]: He did, did he?
Officer: Yeah, said you can help me out?
Male: What do you need?
Officer: 2 soft
Male: Hold on, I'll get back to you.
Officer: Alright.” 18 [Emphasis added]
Williams in contrast:
“Male [Williams]: Hello.
Canepa [Officer]: Jay?
Male: Yeah.
Canepa: You around?
Male: Who is this?
Canepa: It's Vinny.
Male: Vinny who?
Canepa: Vinny. Jesse from Queen and Jarvis gave me your name ... your number. Said you could help me out. I need 80.
Male: Okay. You have to come to me.
Canepa: Okay. Where?
Male: Queen and Dufferin.
Canepa: Okay. It'll take me a few because I'm at Yonge & Bloor.
Male: Okay, hurry up.
Canepa: I'll call you when I get there.
Male: Okay. What you want, soft or hard.
Canepa: Hard. Hard buddy.
Male: Okay.” 19 [Emphasis added]
The devil is in the details for the majority here. Whereas with Ahmad the emphasized portion of the conversation constitutes a clear corroboration of a tip before providing an opportunity to commit an offence, the emphasized portion in Williams conversation contains both the purported corroboration and an opportunity to solicit drugs. This seemingly inconsequential difference is the focus on specific language and the basis for the majority decision.
Analysis of the Dissent and Implication on Expansion of Police Powers
Wagner C.J. and Moldaver, Côté and Rowe JJ. provided a dissent in part, written by Moldaver J. It was the opinion of the dissent that no entrapment had occurred in either Ahmad or Willaims’ situations. 20 The argument for this has two key elements: there is a fundamental issue policy wise in firm distinguishment of investigative steps and an opportunity to commit a crime; and questioning the validity of calling the justice system into disrepute for finding Williams' case to be an abuse of process and Ahmad’s not. 21
For the first element, there appears to be an unprincipled and impractical parsing of language in what seems to be two remarkably similar phone conversations. Whilst it is important to have investigative standards, undue restrictions on language and a reliance on formality potentially risk undermining the efforts of otherwise legitimate police processes. It is of little doubt that the officers in both cases believed they were operating fairly and within public interest.
For the second element, it really is curious how the conversation with Williams could be calling the justice system into disrepute in light of the conversation with Ahmad. To the average bystander, the effectual difference in language likely holds no significance in the “fairness” of law. While this could be viewed as an ad hoc analysis being that it is known to us as readers that both of these individuals were in fact conducting dial-a-dope operations, it is tough to imagine a scenario where an individual answers a combined corroboration and opportunity inquiry from an undercover officer in a way that truly would constitute alarming entrapment. The tips in both cases came from reliable sources, a fellow officer, and efforts were made to corroborate this tip in both conversations.
The dissent here is seeking to revisit the bona fide inquiry prong of the test originally outlined in Mack. 22 The three-part test, requiring an investigation to be motivated by a legitimate law enforcement purpose; the investigation be factually grounded; and the investigation but be directed at a specific type of crime appear to be satisfied here in Ahmad. 23 It is curious in juxtaposition, how the court can be so caught up in specifics of language in two scenarios that would otherwise be perceived as valid police efforts under Mack.
Now is this dissent an expansion of police powers? Yes and no. The obvious implication from the majority is that police will become more formulaic in phone calls with suspected dial-a-dope phone numbers. Fact scenarios outside of this specific circumstance are likely to see little effect, but the majority’s parsing of language has sent a clear message that corroboration outside of a phone call is a strong preferred alternative, however if it must be done via phone then careful language is needed to avoid entrapment.
If we were to flip the decision and have the dissent be the majority ruling, would this create significant legal shockwaves? Does a less formulaic and more holistic analysis of a police investigation of dial-a-doping become an alarming extension of police powers? I don’t see why it would be. There is no question that there is a distinct requirement for corroboration of an unsubstantiated tip, however it is difficult to imagine how the language used in conversation with Williams opens the door to abuse of process. It is not the opinion of the dissent that any call can be conducted to pursue charges of drug trafficking, but rather when it is an otherwise valid investigation courts do not need to become enthralled by parsing of language. Doing so is a narrow lens on police investigation, and fears of creating a standard of the ends justifying the means can be easily quashed in this revisiting of the court in Mack.
Endnotes..................
1 The Wire, 2003, Television series (Baltimore, MD: HBO Entertainment, 2003).
2 R. v. Ahmad, [2020] S.C.J. No. 11 at para 187.
3 Ibid at para 5.
4 R. v. Ahmad, [2015] O.J. No. 1519 at paras 30-48.
5 R. v. Williams, [2014] O.J. No. 1840 at para 12.
6 Her Majesty the Queen v Ahmad Her Majesty the Queen v Williams [Indexed as: R v Ahmad], 141 OR (3d) 241, 2018 ONCA 534.
7 Ibid.
8 Ahmad, supra at para 33.
9 Ibid at para 34.
10 Ibid.
11 Ibid at para 37.
12 Ibid at para 50.
13 Ibid at paras 51-54.
14 Ibid.
15 Ibid at para 59.
16 Ibid at para 61.
17 Ibid at para 63.
18 Ibid at para 78. The emphasized line is what the Court decided to be sufficient corroboration.
19 Ibid at para 78.
20 Ibid at para 188.
21 Ibid at paras 173-184.
22 R. v. Mack, [1988] 2 S.C.R. 903. See: discussion on probative value of confessions and how they relate to the probative value of corroboration in the phone conversations here.
23 Ibid.
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