Entrapment: can the police lawfully induce the commission of a crime?

Entrapment: can the police lawfully induce the commission of a crime?

Date Updated: July 12, 2020
Written By: Ravi Prithipaul (Alberta Criminal Defence Lawyer)

Detailed Law Breakdown

A confidential informant tells a police officer that person “A” sells cocaine and gives the police a telephone number. An undercover officer dials the number, speaks to the person who answers, asks if drugs can be bought, the person answers in the affirmative and arrangements are made for the purchase at a specific location and time. The undercover officer arrives at the appointment, completes the transaction, and the seller is then arrested.
This type of investigative technique illustrates the tension that arises when the police adopt covert means to detect concealed illegal activity, but in doing so, manipulate individuals to commit crime. The entrapment doctrine is an attempt to balance the competing interests. In 1988, the Supreme Court of Canada decided that the police do not have unlimited power to randomly test the virtue of individuals so as to induce them to commit offences: R. v. Mack, 1988 CanLII 24 (SCC). Entrapment is available as a defence when either:

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”; or
2) “although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.”

Two cases, those of Mr. Williams and of Mr. Ahmad, both of which involved police-initiated telephone conversations in dial-a-dope stings, recently came before the Supreme Court of Canada: R. v. Ahmad, 2020 SCC 11. In the case of Mr. Williams, the Toronto Police Service received a confidential tip that “Jay” was selling cocaine and a telephone number. The police connected “Jay” with Mr. Williams. An undercover officer called the number and had the following conversation with the male who answered:

Male: Hello.
Officer: Jay?
Male: Yeah.
Officer: You around?
Male: Who is this?
Officer: It’s Vinny.
Male: Vinny who?
Officer: Vinny. Jesse from Queen and Jarvis gave me your name … your number. Said you could help me out. I need 80.
Male: Okay. You have to come to me.
Officer: Okay. Where?
Male: Queen and Dufferin.
Officer: Okay. It’ll take me a few because I’m at Yonge & Bloor.
Male: Okay, hurry up.
Officer: I’ll call you when I get there.
Male: Okay. What you want, soft or hard?
Officer: Hard. Hard buddy.
Male: Okay.

After this conversation, the undercover operator met with Mr. Williams and purchased $80 worth of crack cocaine. The police arrested Williams about a month later after another transaction that was initiated in a similar manner.

The case of Mr. Ahmad arose when a member of the Toronto Drug Squad received information from a police officer about a possible dial-a-dope scheme. A tipster had indicated that “Romeo” was selling powder cocaine and provided Romeo’s phone number. An undercover officer then made two calls to the number, the first of which went as follows:

Male: Hello.
Officer: Hey, It’s Mike. Matt said I can give you a call. This is Romeo?
Male: He did, did he?
Officer: Yeah, said you can help me out?
Male: What do you need?
Officer: Two soft.
Male: Hold on, I’ll get back to you.
Officer: Alright.
About 15 minutes later, the male called the officer back:
Officer: Hello.
Male: So what do you need again?
Officer: Two soft. Where you at?
Male: Can meet you at Yorkdale.
Officer: Sure. $160 good, an hour?
Male: $140, hour’s good, go by theatres.
Officer: Cool.

The undercover went to the agreed location, bought drugs from a male who turned out to be Mr. Ahmad, and Ahmad was then arrested. At trial, the police officer testified that “two soft” referred to two ounces of powder cocaine, “Yeah, said you can help me out?” is a common way to request drugs in the drug trade, and “What do you need?” is a common way to ask what kind of drugs a person wants.

Thoughts from a Criminal Lawyer’s Perspective

At their respective trials, Williams was found to have been entrapped and his charges were stayed, while Ahmad’s defence of entrapment did not succeed. Their cases eventually made their way to the Supreme Court where a majority of five judges to four agreed with the trial judgments. Why was Williams successful in his entrapment defence but not Ahmad?
For the majority of the Supreme Court, in the case of Mr. Ahmad, the police had a reasonable suspicion of drug trafficking once the officer asked “you can help me out?” and Ahmad replied “What do you need?” The use of language common to the drug trade in the context of the undercover operative’s reference to “Romeo”, a name which Ahmad did not deny as being his, provided an adequate basis for the police to provide a lawful opportunity to commit a drug trafficking offence (although the majority stated that “this is an extremely close call”).

In the case of Williams, in contrast, the majority decided that the police had failed to demonstrate that they had a reasonable suspicion of illegality: “there was nothing in Williams’ responses — before the [officer] provided the opportunity to traffic — to suggest that the phone number was being used to sell drugs”. In the first part of the conversation, the undercover police officer stated: “Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80”. The officer did not wait for a response to the investigative question (“Said you could help me out”) before he offered the opportunity to commit drug trafficking (“I need 80”). Because Williams did not respond positively to drug culture slang until after the opportunity had been provided, the police had committed entrapment.

Entrapment arises in different contexts. This brief summary shows that the defence can turn on very fine points of evidence. If you are charged with a drug or other criminal offence arising from a police offer to commit an illegal act, you should retain counsel who is experienced in these matters. Mr. Ravi Prithipaul, QC has over 25 years in defending drug offences and other criminal matters. Call Mr. Prithipaul at 780 705 7737 to arrange for a free initial consultation.