Canada’s highest court recently released its written decision in a pair of related cases regarding the issue of entrapment. Javid Ahmad (“Ahmad”) and Landon Williams (“Williams”) were each charged with drug offences after police purchased cocaine from them.
The Supreme Court of Canada confirmed that police must form a reasonable suspicion that the individual on the phone is dealing drugs before asking to buy drugs.
Toronto police responded to tips to investigate alleged dial-a-dope schemes. This type of scheme involves a seller communicating with their customers over cell phones and arranging to purchase drugs at an agreed upon location. In each case, officers called a particular phone number and following a brief conversation requested drugs and arranged a meeting spot to complete the transaction.
Ahmad and Williams were each arrested and charged with drug-related offences. Both accused argued at trial that their proceedings should be stayed on the basis of entrapment.
In the case of Ahmad, the police received a tip that “Romeo” was selling drugs over the phone. Following a short conversation with “Romeo”, a deal was struck to sell the officer cocaine and a location was agreed upon. The officer met “Romeo” (Ahmad) in person to sell him the cocaine, at which time he was arrested and searched. At Ahmad’s trial, he was convicted and the judge concluded that he was not entrapped as police had not offered him an opportunity to traffic drugs until their tip had been corroborated during the course of the phone conversation.
In the case of Williams, police received a tip that “Jay” was selling cocaine. The officer called “Jay” and arranged a meeting time and place to buy crack cocaine. The drug deal took place. Eleven days later, another drug deal was arranged. A month later, the police arrested Williams. At Williams’ trial, the judge concluded that he was entrapped because the officer who contacted him provided him with the option to sell drugs before forming a reasonable suspicion that he was drug trafficking. Thus resulting in a stay of the drug-related charges.
Both Ahmad’s and Williams’ cases were heard together on appeal. The majority of the Court of Appeal held that where reasonable suspicion relates to the phone number, the police can provide opportunities to commit a crime even if there is no reasonable suspicion about the person who answers the phone. Therefore, at their appeals both Ahmad and Williams were convicted of drug offences.
WHAT IS ENTRAPMENT?
Entrapment takes place when the police encourage an individual to commit a crime or provide an individual with the opportunity to commit a crime without having a reasonable suspicion that the individual is involved in that particular criminal activity.
The Supreme Court of Canada set out two categories for the defence of entrapment in the case of R. v. Mack.
- The police may present an opportunity to commit a crime only without acting upon a reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location;
- The police, while having a reasonable suspicion, go beyond providing an opportunity and induce the commission of an offence.
WHAT DID THE SUPREME COURT OF CANADA DECIDE?
On appeal to the Supreme Court of Canada, both Ahmad and Williams argued that the police did not have the required reasonable suspicion that either individual was involved in criminal activity before asking them over the phone to buy drugs.
The majority of the judges of the Supreme Court concluded that Ahmad was not entrapped and that Williams was entrapped by the police.
The court held that police can ask a person during a telephone conversation to commit a crime, but only if there is already reasonable suspicion that the person is involved in criminal activity. The reasonable suspicion must relate to the specific person committing a crime or a crime occurring in a specific location. Given the digital world that we live in, a specific location can include a phone number. Thus, police can have a reasonable suspicion that the phone number is being used for the crime before asking the person who answers the phone to commit a crime. The court was concerned about the risks to privacy of allowing the location to be expanded to virtual spaces and stated:
…to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime.
Although in both cases, the police didn’t have reasonable suspicion before calling the phone numbers, the court concluded that the police became reasonably suspicious in Ahmad’s case to suspect he was selling drugs while talking with him on the phone and before asking to buy drugs from him. In Williams case, the police asked to buy drugs from him prior to having a reasonable suspicion that he was selling drugs during their phone conversation.
The majority of the court stated:
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.
Based upon the specific circumstances in each case, Ahmad’s conviction was upheld and the stay of proceedings for Williams was reinstated.
If you have been charged with a drug-related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.