Help Me Out: Drawing Distinctions in the Entrapment Defence

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In the recent decision of R v. Ahmad,[1] a majority of the Supreme Court maintained a framework for the entrapment defence established in prior decisions,[2] specifically holding that the ‘reasonable suspicion’ branch is appropriate in the context of ‘dial-a-dope’ investigations. 

The Supreme Court considered two cases arising from circumstances that were very similar, yet different in a way that led the majority to enter a stay of proceedings in one and a conviction in the other.  The success of an entrapment defence in one case, and the failure in the other, turned on whether police had formed a ‘reasonable suspicion’ before offering an opportunity to commit a drug offence. 

The accused in the two cases - Ahmad and Williams - were charged with possession of cocaine for the purpose of trafficking, and investigations against each of them originated with police receiving an anonymous tip that a phone number was associated with drug dealing[3].  In both cases, an undercover officer called the phone number provided by the tip, engaged in brief conversation, requested drugs, and arranged a meeting place to purchase drugs. Undercover police subsequently met the accused at agreed locations and purchased drugs from them.  Both accused raised the defence of entrapment, but were convicted at first instance. 

In both cases, the tip police had received was unverified up to the point of the telephone call by the undercover officer to the accused – the credibility of the source was unknown, and there no corroboration of the information provided by the source.  However, the majority of the Supreme Court held there was a key distinction between the two cases. In Ahmad’s case, the undercover officer asked at beginning of the telephone conversation “…you can help me out?”, to which the response was “what do you need?”[4].   This use of drug trafficking jargon was sufficient, along with the other circumstances, to find reasonable suspicion on the part of the undercover officer.  If police lacked a reasonable suspicion prior to providing an opportunity to commit the offence, the accused would be entrapped and entitled to a stay of proceedings, notwithstanding his or her guilt. 

In Williams’ case, by contrast, the undercover officer made a specific request for a dollar amount of cocaine, rather than asking an “investigative question” prior to providing an opportunity to commit an offence. Acting on a tip that was not verified in advance of or during the telephone conversation, the police created an opportunity to commit the offence without reasonable suspicion, and therefore entrapped the accused[5].

The effect of the majority decision is that that if police do not investigate the reliability of the tip before calling the number provided in the tip, police may nevertheless attempt to form reasonable suspicion in the course of a telephone conversation with the target, as long as they do so prior to presenting an opportunity to commit a crime.  The undercover officer failed to do so in the Williams’ case, unlike in Ahmad’s, so the Supreme Court entered a stay of proceedings for Williams and a conviction for Ahmad[6].

Constellation of Factors

While the majority of the Supreme Court drew a precise distinction between the circumstances in the Ahmad and Williams case, they also discussed how a “constellation of factors” is relevant to determining the existence of a reasonable suspicion. 

Reasonable suspicion is said to exist where there is a possibility criminal activity; a probability standard does not need to be met.  The majority notes that this is not “unduly onerous”[7], and requires less than “reasonable grounds”.  What is needed is a “constellation of objectively discernible facts”[8] that give rise to a reasonable cause to suspect that a certain kind of crime was being committed by a particular person or in a particular place.  Mere hunches and intuition will not suffice[9]. A constellation of facts, alongside an officer’s training and experience, can make otherwise equivocal information probative of the presence of criminal activity[10].  

Reasonable suspicion is individualized, and the facts must indicate the possibility of criminal behavior that go beyond characteristics that could apply broadly to innocent people[11]. Otherwise, the opportunities created by police to commit offences will unacceptably increase the likelihood that people will commit crimes when they otherwise would not have.

Impact

R v. Ahmad clearly reaffirms the principles of the entrapment developed in its prior decisions, and applies those principles in a very precise way in the context of ‘dial-a-dope’ investigations.  The majority paid careful attention to the context of ‘dial-a-dope’ operations, such as the use of street language indicative of drug dealing which formed an important part of the ‘constellation of factors’ to be considered in such cases[12].

For different types of investigations into different types of offences, R. v. Ahmad affirms a clear framework of principles, but offers little or no guidance on how the principles may be applied. The application of the principles is highly contextual, as the differing results in the Williams and Ahmad cases illustrate.  Moreover, with different types of offences – such as white collar offences – the elements of the offence, and the way in which they are investigated, would likely play a major role in determining the limits of the entrapment defence.  For example, what do reasonable suspicion and creating an opportunity to commit an offence look like in the context of an insider trading investigation?  In these financial crime contexts, should there be consideration of the extent of the vulnerability of the targets? The minority in Ahmad emphasized that one of the functions of the entrapment doctrine is to prevent the profiling, stereotyping and targeting of marginalized or disadvantaged groups.[13]

Case Information

R v. Ahmad, 2020 SCC 11

Docket: 38165; 38304

Date of Decision: May 29, 2020

___________________________________________

[1]     R v. Ahmad, 2020 SCC 11 [Ahmad].

[2]     R v. Mack, [1988] 2 SCR 903 (S.C.C.); R v. Barnes, [1991] 1 SCR 449.

[3]     Ahmad, at 5.

[4]     Ahmad, at 72.

[5]     Ahmad, at 78, 80.

[6]     Ahmad, at 85.

[7]     Ahmad, at 45.

[8]     Ahmad, at 46.

[9]     Ahmad, at 47.

[10]   Ahmad, at 47.

[11]   Ahmad, at 48.

[12]   Ahmad, at 55.

[13]   Ahmad, at 166-172.

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