A recent case has clarified entrapment law in Canada. The Supreme Court of Canada ruled that police conducting “dial-a-dope” investigations must form a reasonable suspicion that the person answering the phone is engaged in drug dealing before asking them to sell drugs.
From time to time, police receive unsubstantiated tips about phone numbers allegedly used to order and sell illegal drugs. When they call these numbers to investigate illegal activity, they must abide by entrapment law.
This blog will explore the defence of entrapment and what it means for police officers conducting investigations into phone numbers allegedly used to sell drugs.
What is entrapment law?
There are two kinds of entrapment in Canadian law: opportunity-based and inducement-based. Opportunity-based entrapment is when the police provide a person with an opportunity to commit an offence without a reasonable suspicion that the person is already engaged in criminal activity. Inducement-based entrapment is when the police go beyond providing an opportunity and actually influence a person to commit a crime.
If a court decides the police used entrapment during its investigation, the criminal charges will be dismissed.
Is opportunity-based entrapment legal?
If the police have a reasonable suspicion someone is engaged in criminal activity, they are legally entitled to provide them with an opportunity to commit a crime of the same type. Even if they do not have a reasonable suspicion, they can still provide an opportunity to commit an offence if they form a reasonable suspicion in the course of a “bona fide” inquiry.
Without reasonable suspicion, police officers could select any person at random which would be a breach of Canadians’ Charter right to privacy. Furthermore, providing an opportunity to commit a crime without reasonable suspicion could create a crime that would otherwise have never happened. Hence the name, entrapment.
Entrapment examples
A recent Supreme Court of Canada decision provides a couple of examples of when opportunity-based entrapment does and does not apply. Javid Ahmad and Landon Williams were charged with drug offences after police received separate tips about dial-a-dope phone numbers. A tip from an unverified source is not sufficient grounds for reasonable suspicion so the investigating officer needs to corroborate the tip before offering an opportunity to commit a crime.
In Ahmad’s case, an officer called and said “you can help me out?” and waited for the defendant’s response, “What do you need?” The officer replied: “two soft.” They met in person and after Ahmad sold the officer cocaine, he was arrested.
In the case of Mr. Williams, the officer called saying someone had given him the number, adding: “I need 80”.
Ahmad was convicted at provincial court and after several appeals, the Supreme Court dismissed the appeal. The Court found the combination of the unverified tip and the defendant’s response to language particular to drug subculture was sufficient to form a reasonable suspicion before providing the opportunity to commit a crime.
The Court did, however, allow the appeal in Mr. Williams’s case because the officer made the offer to sell the drugs, “I need 80” before a reasonable suspicion could be formed. Therefore, the officer was acting solely on the information from the unverified tip and the entrapment defence applied.
These two examples show that police must form a reasonable suspicion before offering someone the opportunity to commit a crime. So, when it comes to dial-a-dope investigations, they must have a reasonable suspicion that someone is selling drugs, even if that reasonable suspicion is formed over the course of the phone call.