R v Ahmad: The Entrapment Doctrine in Dial-a-Dope Investigations and the Notion of Reasonable Suspicion

As state actors, police officers “must respect the rights and freedoms” of the public that they serve, including when conducting criminal investigations that are in the public interest (R v Ahmad, 2020 SCC 11, para 1) [Ahmad]. As a result, police methods of investigation, while broad, are imposed with necessary constraints to ensure the public’s rights and freedoms are not infringed upon (Ahmad, para 1).

The Supreme Court of Canada (“SCC” or “the Court”) outlined these techniques in R v Mack, [1988] 2 SCR 903 [Mack]. In Mack, the SCC determined that police have the power to “step beyond their normal investigative role and tempt people into committing criminal offences” (Ahmad, para 2). However, this power is notwithstanding the requirement of reasonable suspicion or inducing the commission of a criminal offence, both of which would be considered entrapment (Ahmad, para 2). In Ahmad, the SCC considered the doctrine of entrapment and how the notion of reasonable suspicion is to be applied within police dial-a-dope investigations, whereby officers go undercover and call or text the number of an alleged drug dealer in order to catch them in the act of distribution.

Factual Overview

In Ahmad, the SCC considers the defence of entrapment for the separate trials of Javid Ahmad and Landan Williams.

In the case regarding Ahmad, police received a tip via another officer than an individual nicknamed “Romeo” was selling illicit drugs using a specific phone number, and subsequently called that number under the guise of purchasing cocaine without prior investigation substantiating the information (Ahmad, para 7). The police then went to the designated meeting place to attain the drugs and called the number again, met the individual who answered the phone, and paid money to obtain two small bags of cocaine (Ahmad, para 8). Following this, the police arrested the individual, revealed to be Ahmad. They found on his person an envelope containing cash, two small bags of cocaine, a cell phone with the number that was used during the drug transaction, and a backpack containing a large amount of cocaine and more envelopes of cash (Ahmad, para 8).

In the secondary case regarding Williams, a police officer who was a member of the drug squad received an information package from another officer about an individual nicknamed “Jay” who was allegedly selling cocaine in Toronto. The package included information on the individual who was revealed to be Landon Williams (Ahmad, para 10). The record demonstrated that the tip was from a “confidential source of unknown reliability,” but did not include what the tip actually entailed (Ahmad, para 10). The officer failed to ask about the “reliability of the source” or the “currency of the information,” and while she was involved in Williams’ arrest for cocaine trafficking 20 months earlier, she was not aware that Williams’ alias was in fact “Jay” (Ahmad, para 10). Another officer was provided this tip and called the phone number that was provided in the information package also under the guise to purchase cocaine (Ahmad, para 12)

The Entrapment Doctrine

According to the SCC decision in Mack (paras 964-965), entrapment can be made out in two ways:

(1)  the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry (“opportunity‑based entrapment”); 

(2) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, the authorities go beyond providing an opportunity and induce the commission of an offence (“inducement‑based entrapment”).

The SCC in Mack stated that this framework, which both allows and constrains entrapment techniques used by the police, reconciles the public’s interest in protecting personal freedom and privacy against the state’s interest in investigating and prosecuting crime (paras 941-942).

Procedural History

Both Ahmad and Williams were arrested and charged with drug-related offences after police called a phone number to request the drugs. The numbers were provided to the police via an unsubstantiated tip alleging a dial-a-dope investigation.

The trial judge concluded that Ahmad was not entrapped, convicting him of “one count of possession of cocaine for the purpose of trafficking, and two counts of possession of the proceeds of crime” (Ahmad, para 9). The trial judge however found that in Williams’ case, there was “no reasonable suspicion before the officer provided the opportunity to commit a crime” and thus entered a stay (Ahmad, para 13).

At the Court of Appeal, the majority in R v Ahmad, 2018 ONCA 534 [“Court of Appeal”], held that “entrapment was not made out” for either Ahmad or Williams, stating that police are able to commit offences to a person associated with that phone number, even if the officers do not additionally possess reasonable suspicion of who will answer the phone (Ahmad, para 14).

SCC Majority Decision

The Supreme Court dismissed Ahmad’s appeal, while allowing Williams’ appeal and reinstating Williams’ stay of proceedings (Ahmad, para 85). The Court raised several issues regarding entrapment within the dial-a-dope context.

A. Can a phone number — a virtual place — qualify as a location for the purposes of entrapment?

The SCC emphasized that the virtual space of a phone number “must be defined with sufficient precision in order to ground reasonable suspicion” (Ahmad, para 41). Factors the Court provided, to ensure that the police’s inquiry is not broader than what the evidence allows, include the following:

  • the seriousness of the crime in question;
  • the time of day and the number of activities and persons who might be affected;
  • whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location;
  • the level of privacy expected in the area or space;
  • the importance of the virtual space to freedom of expression; and
  • the availability of other, less intrusive investigative techniques (Ahmad, para 41).

B. What circumstances can give rise to reasonable suspicion in the dial‑a‑dope context?

The SCC found that reasonable suspicion is an objective standard that allows police flexibility in “enforcing the law and preventing crime,” while simultaneously protecting the public interest and preserving the rule of law so that courts can “meaningfully review police conduct” (Ahmad, para 45). Within the entrapment doctrine, the Supreme Court indicated that reasonable suspicion stems from the first branch of the entrapment doctrine, whereby police conduct does not induce an actual offence, even though the conduct is in involved in the “commission of a crime” (Ahmad, para 45).

C. 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?

The appeals for both Ahmad and Williams include transcriptions of the phone conversations the officers had with the appellants during the investigations, and these conversations were reviewed by the trial judge to determine if the doctrine of entrapment was triggered (Ahmad, para 58). The Supreme Court found that reviewing these types of conversations within the dial-a-dope context is the “inevitable consequence” of police having reasonable suspicion prior to “offering an opportunity to commit an offence” (Ahmad, para 59). The SCC provides that reasonable suspicion is applied prospectively as opposed to retroactively, and that the entrapment doctrine requires that the police have “reasonable suspicion of criminal activity before providing an opportunity to commit an offence” (Ahmad, para 60). This means that police conduct can be justified on the basis that the information of reasonable suspicion is “already known” to the police (Ahmad, para 60).

D. What constitutes the provision of an opportunity to traffic in drugs during a phone call?

The SCC found that whether police conduct constitutes an opportunity to commit an offence is reflected in the balance between “the state’s interest in investigating crime” and “the law’s constraint against unwarranted intrusion into individuals’ personal lives”–whereby the definition of the offence and the context of the conduct are both broadly considered (Ahmad, para 63). Within the dial-a-dope context, the SCC determines that to “constitute an offer of an opportunity to commit a crime,” the police conduct must be “sufficiently proximate” to the conduct that would “satisfy the elements of the offence” (Ahmad, para 64). The Supreme Court affirms the trial judge’s determination on Williams’ stay decision, whereby “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'” (Ahmad, para 64).

The SCC concludes that in the context of police dial-a-dope investigations that include calling a phone number that they believe is being used for the purposes of illegal drug trafficking, there must first be “reasonable suspicion prior to offering an opportunity to traffic drugs” (Ahmad, para 69). The Court specifies that in instances where the police cannot form reasonable suspicion prior to making the call, they must form reasonable suspicion during the course of the conversation, prior to making an offer (Ahmad, para 69). However, if it can be found that the offer was presented prior to reasonable suspicion being formed, the entrapment doctrine is triggered, and the proceedings must be stayed as a result (Ahmad, 69).

Implications on Future Police Dial-a-Dope Investigations

In Ahmad, the SCC provided several factors that are relevant in determining the existence of reasonable suspicion. However, the guiding principles to determine reasonable suspicion remain highly objective and contextual. While police officers may increase their efforts to attain reasonable suspicion prior to providing persons with the opportunity to commit a crime, the potential for abuse of process may still persist in these types of investigations.

The differing results for both Williams and Ahmad also provide a cause for concern. Whether reasonable suspicion has been established is dependent on the specific actions and wording used by the police. As a result, similar cases can yield contrasting outcomes. Factors such as implicit bias may cause officers to vary their conduct depending on the characteristics of the individual they are interacting with. These factors can colour who they see as a suspect in the first place. The law requires a level of certainty, and a lack thereof may create dangerous implications for marginalized individuals, who may be specifically targeted by the police in the context of dial-a-dope investigations. While the entrapment doctrine functions as a safeguard to prevent profiling by the police, the objective application to determine reasonable suspicion may posit certain obstacles for disadvantaged groups. For example, individuals residing in lower-income or racialized neighbourhoods, which are more prominently surveilled by the police, may be of higher risk of being investigated.

Due to the severe nature of criminal convictions and the dire consequences to one’s liberty, it is prudent that the SCC provide for more subjectivity in the application of the entrapment doctrine to ensure that people’s rights and freedoms are not infringed by the police. The current objective standard to determine the existence of reasonable suspicion may provide the opportunity for more abuses of power, as police officers may justify their biases under the guise of reasonable suspicion. There remains an overrepresentation of marginalized groups that are incarcerated within the Canadian prison system. Allowing the application of an objective standard to investigative techniques by the police, as seen in dial-a-dope investigations, will further exacerbate this issue.  

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