R. v. Ahmad

R. v. Ahmad
Collection
Supreme Court Judgments
Date
2020-05-29
Neutral citation
2020 SCC 11
Report
[2020] 1 SCR 577
Case number
38165, 38304
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Criminal law
Notes
Case in Brief
SCC Case Information: 38165, 38304
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577
Appeals Heard: October 11, 2019 Judgment Rendered: May 29, 2020 Dockets: 38165, 38304
Between:
Javid Ahmad
Appellant
and
Her Majesty The Queen
Respondent
- and -
British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario and Canadian Association of Chiefs of Police
Interveners
And Between:
Landon Williams
Appellant
and
Her Majesty The Queen
Respondent
- and -
British Columbia Civil Liberties Association and Independent Criminal Defence Advocacy Society
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment: (paras. 1 to 85)
Reasons Dissenting in Part: (paras. 86 to 188)
Karakatsanis, Brown and Martin JJ. (Abella and Kasirer JJ. concurring)
Moldaver J. (Wagner C.J. and Côté and Rowe JJ. concurring)
Javid Ahmad Appellant
v.
Her Majesty The Queen Respondent
and
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association of Ontario and
Canadian Association of Chiefs of Police Interveners
‑ and ‑
Landon Williams Appellant
v.
Her Majesty The Queen Respondent
and
British Columbia Civil Liberties Association and
Independent Criminal Defence Advocacy Society Interveners
Indexed as: R. v. Ahmad
2020 SCC 11
File Nos.: 38165, 38304.
2019: October 11; 2020: May 29.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Criminal law — Abuse of process — Entrapment — Dial‑a‑dope operations — Police receiving tips of unknown reliability that phone numbers of two accused associated with drug trafficking — Undercover officers phoning each accused and arranging for drug transactions — Accused arrested and charged with drug‑related offences — Accused seeking stays of proceedings on basis of entrapment — Whether police had reasonable suspicion that accused or phone numbers were engaged in drug trafficking at time police provided opportunity to commit offences — Application of entrapment framework to dial‑a‑dope investigations.
In each appeal, the police received an unsubstantiated tip that a phone number was associated with a suspected dial‑a‑dope operation. In these operations, drug traffickers use cell phones to connect with their customers and sell them illicit drugs. Officers called the numbers and, in brief conversations with the men who answered, requested drugs and arranged meetings to complete the transactions. A and W were subsequently arrested and charged with drug‑related offences. At trial, each accused claimed that the proceedings should be stayed on the basis of entrapment. In A’s case, the trial judge entered convictions, concluding that the accused was not entrapped because the police had not offered him an opportunity to traffic drugs until they had sufficiently corroborated the tip in the course of the conversation. In W’s case, the trial judge found that the accused was entrapped because the police provided him an opportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking. The Court of Appeal held that entrapment was not made out for either A or W. A majority of the court concluded that where reasonable suspicion relates 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. Accordingly, the Court of Appeal dismissed A’s appeal but allowed the Crown’s appeal in W’s case, entering convictions.
Held: The appeal by A should be dismissed.
Held (Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting): The appeal by W should be allowed, the convictions set aside, and the stay of proceedings reinstated.
Per Abella, Karakatsanis, Brown, Martin and Kasirer JJ.: The entrapment framework set out in R. v. Mack, [1988] 2 S.C.R. 903, and R. v. Barnes, [1991] 1 S.C.R. 449, has proved workable for decades in a variety of contexts. It has stood the test of time, furnishing a principled, stable and generally applicable doctrine that is fully capable of adapting to a variety of circumstances and responding to the evolution of crime and police tactics. There is no reason to alter the carefully calibrated balance struck in these cases in investigations of suspected dial‑a‑dope operations. Applying the Court’s entrapment framework and in particular its reasonable suspicion standard, the decision of each trial judge should be affirmed. While A was not entrapped, W was.
The Court’s decision in Mack settled the law of entrapment in Canada. It set out two alternative branches, either of which is sufficient to ground an accused’s claim of entrapment and justify a stay of proceedings. On the first branch, at issue in these appeals, the police may present an opportunity to commit a crime only upon forming reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry. The offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or a combination of both. In every context, the reasonable suspicion standard ensures courts can conduct meaningful judicial review of what the police knew at the time the opportunity was provided. This standard requires the police to disclose the basis for their belief and to show they had legitimate reasons related to criminality for targeting an individual or the people associated with a location.
An individual phone number can qualify as a place over which police may form reasonable suspicion. However, a phone number is not the same as a public physical location. A phone is a means of private communication between persons, and calling a number, or exchanging text messages, is an inherently private activity. Accordingly, state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space. Technology and remote communication significantly increase the number of people to whom police investigators can provide opportunities, thereby heightening the risk that innocent people will be targeted. It is therefore important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime. The virtual space must be defined with sufficient precision in order to ground reasonable suspicion. Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows.
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. Whether the police are targeting a person, place or phone number, the legal standard for entrapment is a uniform one, requiring reasonable suspicion in all cases where police provide an opportunity to commit a criminal offence. Reasonable suspicion is a familiar legal standard that provides courts with the necessary objective basis on which to determine whether the police have justified their actions. It protects individuals’ interests and preserves the rule of law by ensuring courts can meaningfully review police conduct. It requires that a constellation of objectively discernible facts give the officer reasonable cause to suspect that a certain kind of crime was being committed by a particular person or in a particular place. Reasonable suspicion is also individualized, in the sense that it picks an individual target — whether a person, an intersection or a phone number — out of a group of persons or places. When an objectively grounded suspicion attaches to a sufficiently particularized constellation of factors, like those relating to an individual phone number, concerns about the police intruding on the protected interests of all persons in broadly or poorly defined locations fall away.
A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion. However, it can be sufficiently corroborated such that the standard is met. Police practice itself shows that, whether the police are investigating an individual or a phone number, various steps can be taken upon receiving a tip associating a phone number with dial‑a‑dope activity before acting on it by calling the number. Although it would be prudent for police officers to investigate the reliability of the tip before placing the call where they are able to do so, it is also possible for the police to form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime. The target’s responsiveness to details in the tip, along with other factors, may tend to confirm the tip’s reliability. The target’s use of or response to language particular to the drug subculture properly forms part of the constellation of factors supporting reasonable suspicion. Whether or not responding to such terminology is neutral or adds to the weight of other factors will depend on the circumstances. There is no requirement that the police rule out innocent explanations for these responses.
Unless the police had formed reasonable suspicion before a phone call was made, review of the words spoken during the call is unavoidable in order for the court to determine whether an accused was entrapped. Reviewing conversations between undercover officers and their targets in the dial‑a‑dope context is the inevitable consequence of accepting that the police must have reasonable suspicion before offering an opportunity to commit an offence. Reasonable suspicion is not formed retroactively, but applied prospectively. Reasonable suspicion can justify an action only on the basis of information already known to police. A court must examine all of the circumstances, and not merely the language used during the call, in order to determine whether police had formed reasonable suspicion by the time the opportunity was provided.
The determination of whether a police action constitutes an opportunity to commit an offence is informed both by the definition of the offence and the context in which the action occurred. The definition of drug trafficking includes not only selling, transporting and administering illegal drugs, but also making an offer to do so. In the dial‑a‑dope context, in which the initial interaction between the police and target occurs entirely over the phone, the exercise centres on determining whether words spoken by the police officer constitute an opportunity to commit drug trafficking. The inquiry is properly directed to how close the police conduct is to the commission of the offence. To allow the police sufficient flexibility to investigate crime, an officer’s action — to constitute an offer of an opportunity to commit a crime — must be sufficiently proximate to conduct that would satisfy the elements of the offence. In the particular context of drug trafficking, an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering “yes”.
The facts of each of the two appeals lead to different conclusions. In A’s case, the police had a reasonable suspicion of drug trafficking before providing the opportunity to commit an offence and therefore A was not entrapped. The officer had asked A if he went by the name provided in the tip, which he did not deny. When the officer asked A, “You can help me out?”, A responded positively to this use of language particular to the drug subculture, asking the officer, “what do you need?” Having connected the tip to the person on the phone, the aspect of the tip that asserted illegality was corroborated by A’s understanding of drug‑trafficking slang and willingness to engage in it. In this context, these markers of reliability together sufficiently corroborated the initial tip to give rise to an objective possibility that A was involved in drug trafficking. Unlike in A’s case, there was nothing in W’s responses to suggest that the phone number was being used to sell drugs before the officer provided the opportunity to traffic. Therefore, W was entrapped. The police officer did not wait to see how W would respond to an investigative question that could have corroborated that W was engaged in criminal activity prior to providing the opportunity to commit the crime. Although W confirmed that he went by the name provided in the tip, he did not respond positively to slang particular to the drug subculture until after the opportunity had been provided. The corroboration of the name did not strengthen the reliability of the tip in its assertion of illegality. The police had no more than a bare tip that someone using a particular phone number was selling drugs and this did not ground reasonable suspicion.
Per Wagner C.J. and Moldaver, Côté and Rowe JJ. (dissenting in part): Both appeals should be dismissed. Attempting to apply the doctrine of entrapment as formulated in R. v. Mack, [1988] 2 S.C.R. 903, and R. v. Barnes, [1991] 1 S.C.R. 449, to present‑day dial‑a‑dope operations has revealed both doctrinal and policy concerns with how the first branch of the doctrine is currently formulated. Both the individualized suspicion and the bona fide inquiry prongs of this branch have failed to remain faithful to the balance struck in Mack and Barnes between protecting an individual’s legitimate interest in being left alone by the state and effective law enforcement. The bona fide inquiry prong must be revised to preserve this fundamental balance, to rectify doctrinal issues within the prong itself, and to address policy concerns that have arisen with respect to the prong’s application. The revised framework will ensure that only the clearest of cases of intolerable state conduct are captured by the doctrine of entrapment by refocusing the doctrine on its principled origin: abuse of process. Applying the revised framework, the police were engaged in a bona fide inquiry when they offered each A and W an opportunity to commit the offence of drug trafficking.
The individualized suspicion prong of the doctrine of entrapment has come under fire for leading to anomalous results, particularly in dial‑a‑dope cases where police call alleged drug dealers based on minimal information. This prong permits the police to provide an individual with an opportunity to commit an offence if they reasonably suspect that the targeted individual is already engaged in criminal activity of the same type. The concern expressed is that even though the investigating officer may not possess individualized reasonable suspicion at the time they offer an opportunity, the police conduct in a typical dial‑a‑dope case cannot be said to rise to the level of an abuse of process warranting a stay of proceedings. In an attempt to both adhere to the formal requirement of reasonable suspicion and preserve the substantive abuse of process character of entrapment in dial‑a‑dope cases, some courts have drawn a distinction between taking an investigative step (which does not require reasonable suspicion) and presenting an opportunity to commit an offence (which does). The problem with the fine line distinction this approach draws is that it requires courts to closely parse undercover calls to determine whether an accused was entrapped. This approach creates artificial distinctions based on the specific words used by the undercover officer rather than focusing on whether society would view the officer’s conduct, considered in context, as simply intolerable. These distinctions are often difficult to draw, and promote an approach that is akin to dancing on the head of a pin.
The manner in which the majority proposes to dispose of the appeals provides a clear example of the dubious distinctions that flow from an application of the parsing approach. In both cases, an undercover officer made a call based on information from an anonymous or a confidential source. Each call was answered by a then‑unknown man. Seemingly without surprise, each man confirmed or did not deny that he went by a name that, based on the officer’s information, belonged to a drug dealer operating out of the phone line. 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 undercover 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 of cocaine. The conduct of either undercover officer in these cases cannot be described as intolerable — the officers were doing precisely what society would expect them to do upon receiving information about an alleged dial‑a‑dope operation. A reasonably informed observer in our society would be utterly bewildered by the majority’s conclusion that the conduct of the undercover officer in W’s case rises to the level of an abuse of process while the conduct of the undercover officer in A’s case is acceptable.
The problem in applying the bona fide prong as defined in Mack and Barnes to present‑day dial‑a‑dope investigations is that the reasonable suspicion standard has evolved since those cases were decided. The bona fide inquiry prong permits the police to randomly approach citizens and offer them opportunities to commit offences, so long as the area within which they are operating is defined with sufficient precision and they reasonably suspect that that type of crime is occurring in the area. The incorporation of this type of generalized location‑based reasonable suspicion into the bona fide inquiry prong reflects the view that requiring the police to meet a more stringent standard, such as individualized reasonable suspicion, would unduly hinder law enforcement efforts and thereby fail to strike an appropriate balance between individual liberties and legitimate law enforcement. However, in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, the notice that reasonable suspicion includes generalized suspicion that attaches to a particular activity or location rather than to a specific person was rejected. Put differently, since Mack and Barnes were decided, individualization has come to define the reasonable suspicion standard. In this way, the more restrictive meaning ascribed to reasonable suspicion in Chehil has rendered it incompatible with the balance between individual liberties and legitimate law enforcement struck by the bona fide inquiry prong in Barnes.
The solution to the doctrinal incoherence and policy concerns revealed by the dial‑a‑dope entrapment jurisprudence is to revise the bona fide inquiry prong. The revised framework will refocus the bona fide inquiry prong on its principled origin: abuse of process. Under the revised framework, the police should be found to be acting pursuant to a bona fide inquiry where they meet three requirements. First, their investigation must have been motivated by genuine law enforcement purposes. Second, they must have had a factually‑grounded basis for their investigation. They need to be able to point to a specific reason for their investigation beyond a mere hunch. Third, their investigation must have been directed at investigating a specific type of crime within a tightly circumscribed location (whether physical or virtual). Whether the precision of the location meets this threshold should be determined by reference to the overarching question entrapment poses, that is, whether, in all the circumstances, society would view the inquiry as abusive. Inevitably, whether a particular type of location is sufficiently circumscribed for the purposes of a particular type of investigation will need to be considered on a location‑by‑location basis, until a jurisprudence develops. Some considerations may include: the nature and seriousness of the type of crime under investigation; the number of citizens that may be impacted by the investigation technique used by the police; the nature of the location under investigation; and the intrusiveness of the technique.
The revised framework offers significant improvements to the bona fide inquiry prong by bringing it in line with recent doctrinal developments, and by placing limitations on the scope of the location under investigation. These limitations mitigate the risk that police may be able to indiscriminately offer opportunities within an expansive area (i.e., to conduct large‑scale random virtue testing) and effectively address the risk of police targeting the vulnerable and marginalized and engaging in racial profiling. If the police deliberately target the marginalized and vulnerable, it will amount to impermissible bad faith conduct. In addition, by considering the nature of the location under investigation and the number of citizens potentially impacted, together with other relevant factors, reviewing courts will be able to discern whether the risk of ensnaring the marginalized and vulnerable was so high in a given case that society would not tolerate that risk, notwithstanding the legitimate law enforcement interests at stake.
Neither A nor W were entrapped. The police in both cases were acting in the course of bona fide inquiries into the cell phone numbers in issue at the time they extended the respective opportunities to traffic in narcotics. Applying the new framework, there is no suggestion that the police were not motivated by genuine law enforcement purposes, nor is there any evidence of bad faith. Further, the police had a factually‑grounded basis for their investigations, having received information containing the names and phone number of alleged drug dealers. Finally, their inquiry was sufficiently tightly circumscribed. Drug trafficking is a serious crime and the number of individuals potentially impacted by the police conduct here is extremely low. The locations under investigation were phone numbers and, as a result, any concerns that racial profiling or other unconscious biases may have played a role in the investigations are highly attenuated. Notably, the investigatory technique did not involve accessing any of the information on either A’s or W’s cell phone. On this point, there is disagreement with the majority that a call to a potential dial‑a‑dope line engages the informational privacy interest protected by s. 8 of Canadian Charter of Rights and Freedoms and accordingly does demand the imposition of a standard as robust as the individualized reasonable suspicion standard developed in s. 8 jurisprudence. Dial‑a‑dope investigations do not involve search or seizure of the person’s phone, or any of the information it contains. All that dial‑a‑dope investigations involve is a conversation between an undercover officer and the person on the other end of the line. The majority’s acceptance that the police may phone an individual and engage them in potentially extensive conversation without first holding reasonable suspicion belies its contention that a typical dial‑a‑dope investigation engages the privacy interest that s. 8 of the Charter protects. The nature of the individual privacy interests at play here are limited to individuals’ interest in being left alone by the state. It is difficult to imagine a less intrusive technique than those used in typical dial‑a‑dope cases like these ones. In sum, the police conduct here cannot be said to be conduct that society would find intolerable.
Cases Cited
By Karakatsanis, Brown and Martin JJ.
Applied: R. v. Mack, [1988] 2 S.C.R. 903; R. v. Barnes, [1991] 1 S.C.R. 449; referred to: R. v. Jewitt, [1985] 2 S.C.R. 128; Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. Campbell, [1999] 1 S.C.R. 565; R. v. Nuttall, 2018 BCCA 479, 368 C.C.C. (3d) 1; R. v. Bayat, 2011 ONCA 778, 280 C.C.C. (3d) 36; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Simpson (1993), 79 C.C.C. (3d) 482; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Faqi, 2010 ABPC 157, 491 A.R. 194; R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897; Beck v. State of Ohio, 85 S.Ct. 223 (1964); R. v. Swan, 2009 BCCA 142, 244 C.C.C. (3d) 108; R. v. McMahon, 2018 SKCA 26, 361 C.C.C. (3d) 429; R. v. Jir, 2010 BCCA 497, 264 C.C.C. (3d) 64; R. v. Whyte, 2011 ONCA 24, 266 C.C.C. (3d) 5, aff’d 2011 SCC 49, [2011] 3 S.C.R. 364; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320; R. v. Wilson, [1990] 1 S.C.R. 1291; R. v. Jacques, [1996] 3 S.C.R. 312; United States v. Gooding, 695 F.2d 78 (1982); Florida v. J. L., 529 U.S. 266 (2000); R. v. Olazo, 2012 BCCA 59, 287 C.C.C. (3d) 379; R. v. Lal (1998), 130 C.C.C. (3d) 413; R. v. Townsend, [1997] O.J. No. 6516 (QL); R. v. Williams, 2010 ONSC 1698; R. v. Sawh, 2016 ONSC 2776; R. v. Pucci, 2018 ABCA 149, 359 C.C.C. (3d) 343; R. v. Clarke, 2018 ONCJ 263; R. v. Li, 2019 BCCA 344, 381 C.C.C. (3d) 363; R. v. Arriagada, [2008] O.J. No. 5791 (QL); R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Vezina, 2014 CMAC 3, 461 N.R. 286; R. v. Murdock (2003), 176 C.C.C. (3d) 232; R. v. Ralph, 2014 ONCA 3, 313 O.A.C. 384; R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, aff’d 2010 SCC 50, [2010] 3 S.C.R. 62; R. v. Gould, 2016 ONSC 4069; R. v. Marino‑Montero, [2012] O.J. No. 1287 (QL); R. v. Izzard, [2012] O.J. No. 2516 (QL); R. v. Gladue, 2012 ABCA 143, 285 C.C.C. (3d) 154; R. v. Stubbs, 2012 ONSC 1882; R. v. Gladue, 2011 ABQB 194, 54 Alta. L.R. (5th) 84; R. v. Coutre, 2013 ABQB 258, 557 A.R. 144.
By Moldaver J. (dissenting in part)
R. v. Mack, [1988] 2 S.C.R. 903; R. v. Barnes, [1991] 1 S.C.R. 449; R. v. Campbell, [1999] 1 S.C.R. 565; R. v. Ahluwalia (2000), 149 C.C.C. (3d) 193; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Le, 2016 BCCA 155, 28 C.R. (7th) 187; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Henneh, 2017 ONSC 4835, [2017] O.J. No. 7173 (QL); R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897; R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546; Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Plant, [1993] 3 S.C.R. 281.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 8 .
Controlled Drugs and Substances Act , S.C. 1996, c. 19, ss. 2(1) “traffic”, 5(1).
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APPEAL by Javid Ahmad from a judgment of the Ontario Court of Appeal (Hourigan and Brown JJ.A. and Himel J. (ad hoc)), 2018 ONCA 534, 141 O.R. (3d) 241, 362 C.C.C. (3d) 36, [2018] O.J. No. 3091 (QL), 2018 CarswellOnt 9268 (WL Can.), affirming the conviction entered by Allen J., 2014 ONSC 3818, [2014] O.J. No. 3152 (QL), 2014 CarswellOnt 9012 (WL Can.), and the dismissal of the application for a stay of proceedings, 2015 ONSC 652, [2015] O.J. No. 1519 (QL), 2015 CarswellOnt 4286 (WL Can.). Appeal dismissed.
APPEAL by Landon Williams from a judgment of the Ontario Court of Appeal (Hourigan and Brown JJ.A. and Himel J. (ad hoc)), 2018 ONCA 534, 141 O.R. (3d) 241, 362 C.C.C. (3d) 36, [2018] O.J. No. 3091 (QL), 2018 CarswellOnt 9268 (WL Can.), setting aside the stay of proceedings entered by Trotter J., 2014 ONSC 2370, 11 C.R. (7th) 110, [2014] O.J. No. 1840 (QL), 2014 CarswellOnt 5005 (WL Can.). Appeal allowed, Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting.
Michael W. Lacy and Bryan Badali, for the appellant Javid Ahmad.
Owen Goddard and Janani Shanmuganathan, for the appellant Landon Williams.
Chris Greenwood and David Quayat, for the respondent.
Marilyn E. Sandford, Q.C., Michael Sobkin and Kate Oja, for the intervener the British Columbia Civil Liberties Association.
Ingrid Grant and Daniel Goldbloom, for the intervener the Criminal Lawyers’ Association of Ontario.
Martine Sallaberry and Norm Lipinski, for the intervener the Canadian Association of Chiefs of Police.
Alison M. Latimer, for the intervener the Independent Criminal Defence Advocacy Society.
The judgment of Abella, Karakatsanis, Brown, Martin and Kasirer JJ. was delivered by
Karakatsanis, Brown and Martin JJ. —
I. Introduction
[1] As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. At the same time, police require various investigative techniques to enforce the criminal law. While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.
[2] For that reason, this Court in R. v. Mack, [1988] 2 S.C.R. 903, sanctioned, but narrowly confined, the power of police to step beyond their normal investigative role and tempt people into committing criminal offences. Where they do so without reasonable suspicion, or where they go further and induce the commission of a criminal offence, they commit entrapment. Without a requirement of reasonable suspicion, the police could target individuals at random, thereby invading people’s privacy, exposing them to temptation and generating crimes that would not otherwise have occurred. Such conduct 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.
[3] These appeals concern the application of this settled doctrine to investigations of suspected dial‑a‑dope operations, in which drug traffickers use cell phones to connect with their customers and sell them illicit drugs. Specifically, we are asked to determine when and how reasonable suspicion is established when an officer receives a tip or information that a phone number may be used for drug dealing.
[4] We say our jurisprudence affirms that police cannot offer a person who answers a cell 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. Whether the police are targeting a person, place or phone number, the legal standard for entrapment is a uniform one, requiring reasonable suspicion in all cases where police provide an opportunity to commit a criminal offence. Reasonable suspicion is a familiar legal standard that provides courts with the necessary objective basis on which to determine whether the police have justified their actions. A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion.
[5] In each of these two appeals, the police received an unsubstantiated tip that a phone number was associated with drug dealing. An officer called the number and, after a brief conversation, requested drugs. In Javid Ahmad’s case, the trial judge, Allen J., concluded that Ahmad was not entrapped because the police did not offer him an opportunity to traffic drugs until they had sufficiently corroborated the tip in the course of the conversation (2015 ONSC 652). In Landon Williams’ case, Trotter J. found that Williams was entrapped because the police provided him an opportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking (2014 ONSC 2370, 11 C.R. (7th) 110). The Court of Appeal dismissed Ahmad’s appeal and allowed the Crown appeal in Williams’ case (2018 ONCA 534, 141 O.R. (3d) 241).
[6] Applying Mack, we agree with both trial judges. Ahmad was not entrapped, but Williams was. We would therefore dismiss Ahmad’s appeal but allow Williams’ appeal.
II. Background
A. Ahmad
[7] Detective Constable Michael Limsiaco received information from another officer that a person named “Romeo” was selling drugs using a specified phone number. D.C. Limsiaco called the number without investigating the reliability of the information or how the other officer had procured it. D.C. Limsiaco’s understanding was that the other officer had received the tip from a confidential source.
[8] After a brief conversation, the officer asked for “2 soft”, meaning two grams of powder cocaine. The man on the line subsequently agreed to meet to effect the sale. The officer went to the meeting place, called the number again, met the man who answered the phone, and exchanged $140 for two small plastic bags of cocaine. Police arrested and searched the man, later revealed to be Ahmad. On his person, police found an envelope with the handwritten word “Romeo” on it containing cash, the $140, the cell phone that had been used to set up the transaction, and two small bags of powder cocaine. In Ahmad’s backpack, the police found a large quantity of cocaine and three envelopes containing cash.
[9] Allen J. concluded that Ahmad was not entrapped. Ahmad was convicted of one count of possession of cocaine for the purpose of trafficking, and two counts of possession of the proceeds of crime.
B. Williams
[10] Detective Constable Brooke Hewson, a member of the drug squad, received an information package from another officer about “Jay”, who was alleged to be selling cocaine in a certain area in Toronto. The package identified “Jay” as Landon Williams and included a collection of information about him, including that, according to a tip, he was a “cocaine dealer” who worked in a certain area. The record discloses that the tip was from a confidential source of unknown reliability but not what the tip actually said, how Williams was connected to the name “Jay”, or the currency of the information.
[11] D.C. Hewson did not ask about the reliability of the source or the currency of the information. She had been involved in Williams’ arrest 20 months earlier for trafficking cocaine, although Williams ultimately pleaded guilty to simple possession. She had not known him to use the name “Jay”.
[12] Detective Constable Tony Canepa was given some of this information and called the number. The man who answered the phone confirmed his name was “Jay”. The officer said that he needed “80 . . . [h]ard”, meaning $80 worth of crack cocaine, and the man replied that they should meet at a particular intersection. The officer met the man, later revealed to be Williams, and exchanged $80 for the crack cocaine. Eleven days later, he arranged a second transaction and made the same purchase. The next month, police arrested Williams.
[13] At the end of the Crown’s case, Williams acknowledged that the evidence established his guilt on two counts of trafficking cocaine and two counts of possession of the proceeds of crime. Trotter J. found there was no reasonable suspicion before the officer provided the opportunity to commit a crime and entered a stay.
C. Court of Appeal Decision
[14] The Crown appeal from the stay in Williams’ case and the defence appeal from the conviction in Ahmad’s case were heard together. Hourigan J.A., writing for himself and Brown J.A., held that entrapment was not made out for either Ahmad or Williams. He concluded that where reasonable suspicion relates 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. Himel J. (ad hoc) concurred in the result, but disagreed with the majority’s differentiation between reasonable suspicion over a phone number and reasonable suspicion over the individual who answers that phone.
III. The Entrapment Doctrine
A. The Principles of the Entrapment Doctrine in Mack and Barnes
[15] Over 30 years ago, this Court’s decision in Mack settled the law of entrapment in Canada. It set out two alternative branches, either of which is sufficient to ground an accused’s claim of entrapment and justify a stay of proceedings:
There is, therefore, entrapment 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. [p. 959]
[16] At the most general level, the doctrine exists because “[i]t is a deeply ingrained value in our democratic system that the ends do not justify the means” (Mack, at p. 938). Some of those means are unacceptable in a free society with strong notions of fairness, decency, and privacy. Although police must be afforded latitude, entrapment is a species of abuse of process because police involvement in the commission of a crime can bring the administration of justice into disrepute.
[17] Mack determined that the purpose and rationale of the entrapment doctrine lies in a court’s inherent jurisdiction to prevent an abuse of its own processes. Entrapment is not a substantive defence