Supreme Court of Canada: While deciding issues like application of entrapment framework to dial-a-dope investigations and whether, in the instant case, the police had reasonable suspicion that accused or phone numbers were engaged in drug trafficking at time police provided opportunity to commit offences, the 9 Judge Bench of Wagner C.J., and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., with a ratio of 5:4, held that Police need ‘good reason’ to suspect that someone answering a phone is involved in drug dealing before asking them to sell drugs. The Court observed that the police should be able to show the Courts that they had a “reasonable suspicion” that a certain crime was happening. Needing reasonable suspicion makes sure that Courts can review police actions to check whether they are acting properly.
The issues revolved around 2 entrapment cases. In the involving Ahmad (hereinafter A), the police got a tip that someone named “Romeo” was selling drugs over the phone. The officer called “Romeo’s” phone number. He didn’t know if the tip was trustworthy. He had a short conversation with “Romeo,” who agreed to sell him the narcotics. The police set up a meeting on basis of this call with “Romeo” and when the he turned up, he was searched and then arrested. “Romeo” turned out to be A. In the second case involving Williams (W), a police officer got information from another officer that someone named “Jay” was selling drugs. The information also came from a tip. The officer didn’t know if the information was trustworthy or recent. Another officer called Jay’s number to buy cocaine. “Jay” agreed to meet and sold him the drugs. “Jay” turned out to be W. The police arranged another drug deal eleven days later and a month later, police arrested W. The question was that whether both the cases constitute entrapment or not.
As per the majority, comprising of Abella, Karakatsanis, Brown, Martin and Kasirer JJ., observed that 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. It was further noted that police don’t have ‘reasonable suspicion’ if they just have a tip and don’t know if it is reliable. They can develop reasonable suspicion by investigating if a tip is reliable before calling. The Court observed that in both the cases the police didn’t have reasonable suspicion before calling the phone numbers. However A wasn’t entrapped because police developed a good reason to suspect he was selling drugs while talking to him on the phone. They did this before they asked to buy drugs from him. The police didn’t confirm the tip during the phone call in W’s case though; therefore W was entrapped because the police asked to buy drugs from him before they had a good reason to suspect he was selling drugs. Dissenting in part, Wagner C.J. and Moldaver, Côté and Rowe JJ., observed that the rules of entrapment display incoherence, thus the framework needs revision. Under the revised policy, the focus should be on the police acting pursuant to a bona fide inquiry where they meet three requirements- firstly their investigation must have been motivated by genuine law enforcement purposes; secondly, they must have had a factually-grounded basis for their investigation beyond a mere hunch; and thirdly, their investigation must have been directed at investigating a specific type of crime within a tightly circumscribed location. [ R v. Ahmad, 2020 SCC 11, decided on 29-05-2020]
