Police Require More Than An Unsubstantiated Tip To Prevent Drug-Case Entrapment Says Canadian Supreme Court

July 8, 2020

Police Require More Than An Unsubstantiated Tip

Entrapment is one of the typical defences to criminal charges. It originates from the interaction between defendant and law enforcement officers before or during the alleged crime. A common entrapment scenario involves police officers using coercion or any other unpleasantly overpowering tactics to cause an individual to commit a felony.

Police require a good reason to suspect a particular individual answering a phone (or the number itself) is dealing in drugs before asking him or her to sell drugs, the Canadian Supreme Court has ruled.

The Supreme Court of Canada in Ottawa, on Friday, May 29, 2020, in response to separate but related criminal cases, ruled in a 5-4 decision that the police must take adequate steps to ensure such tips to prevent entrapping suspects.

The majority of the court said :

“As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect.”

“At the same time, police require various investigative techniques to enforce criminal law. While giving wide latitude to the police to investigate crime in the public interest, the law also imposes constraints on certain police methods.”

Before we discuss the specifics of the two drug-related criminal cases under consideration, let’s first introduce both entrapment cases:

In the first criminal case, the appellants name was ‘Javid Ahmad’, with ‘Her Majesty The Queen’ being the respondent, and ‘British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario and Canadian Association of Chiefs of Police’ being the interveners.

In the second criminal case, the appellants name was ‘Landan Williams’, with ‘Her Majesty The Queen’ being the respondent, and ‘British Columbia Civil Liberties Association and Independent Criminal Defence Advocacy Society’ being the interveners.

Consequences Of Entrapment

Police can, sometimes, investigate a felony in different ways. To find out about offences that are usually hard to investigate, like child luring, drug trafficking, or terrorism, they may tempt suspects to commit those crimes. However, there are limitations to this.

The law enforcement agencies are obligated to convince the court of law that they had a ‘reasonable suspicion’ that a particular felony was happening. Requiring a reasonable suspicion ensures the court can review their actions to verify they acted appropriately.

If the police officers don’t have a reasonable suspicion while they tempt an individual to commit a felony, it’s known as ‘entrapment,’ which is a severe subject in law. Entrapment undermines the rule of law and society’s sense of justice.

When entrapment occurs, it brings about ‘stay of proceedings’ immediately. It means that there’s no more prosecution and the suspect cannot be convicted of a possible crime.

Mr. Ahmad’s Case

In the case of Mr. Javid Ahmad, the police officer got a tip that a person named ‘Romeo’ was selling drugs via phone. He called the phone number of ‘Romeo,’ without knowing at the time whether the tip was trustworthy or not. The officer had a brief conversation with ‘Romeo,’ who agreed to sell him drugs (cocaine in this case).

Then, both the officer and Romeo met in person, and ‘Romeo’ sold cocaine to the officer. The authorities searched and arrested ‘Romeo,’ who turned out to be Mr. Javid Ahmad.

The trial judge concluded that Mr. Ahmad wasn’t entrapped. This is due to the fact the police officer did enough due diligence over their telephonic conversation to have a reasonable suspicion that Mr. Ahmad was selling drugs already. Mr. Javid Ahmad was eventually convicted of his crime as the police officer confirmed enough about the tip before asking to buy drugs from Mr. Ahmad.

Mr. William’s Case

In the case of Mr. Landon William, the police officer got the info from another officer that an individual named ‘Jay’ was selling drugs (cocaine in the case). Just like in the previous entrapment case, the information also came forward from a tip in this case. However, the police officer didn’t know at the time whether or not the info was trustworthy.

Another officer called the phone number of ‘Jay,’ and asked him to buy cocaine from him. As expected, ‘Jay’ agreed to meet the caller (police officer) and sold him cocaine. ‘Jay’ also turned out to be Mr. Landon Williams. The authorities arranged another cocaine deal with ‘Jay’ after 11 days. Police arrested Mr. Williams a month later.

The trial judge concluded that the police officers didn’t have a reasonable suspicion about Mr. Williams before they asked to buy cocaine from him. The trial judge also said that Mr. Williams was indeed entrapped, and ordered a stay of proceedings.

So, why did the court of appeal hear both appeals together? They did so because both cases underlined the same issue. It’s said neither of the two appellants were entrapped.

All the Supreme Court judges agreed that Mr. Javid Ahmad wasn’t entrapped, but for different reasons, while the majority agreed that Mr. Landon Williams was entrapped.

The majority of the judges said the police could ask a suspect on the phone to commit a crime, if and only if they already have reasonable suspicion about a particular individual committing a felony or felony happening in a specific place. However, in this digital era, a place doesn’t necessarily have to be physical; it can also be a phone number for that matter.

Therefore, the authorities must have a good reason to suspect that an individual answering the phone is committing a specific felony or the phone number is being utilized to commit that felony before asking him or her to commit a crime.

The authorities don’t have reasonable suspicion if all they have is a tip and they’re not sure whether or not it’s reliable. What they can do is establish reasonable suspicion by investigating whether a particular tip is a reliable one before making a call.

The majority of the judges agree that it’s better to establish a reasonable suspicion before making any call. However, it’s also probable to develop reasonable suspicion by talking to the person who answers the call.

Final Thoughts

In both of these cases, the police didn’t have reasonable suspicion before calling the suspects. Nonetheless, the majority of the judges agreed Mr. Javid Ahmad wasn’t entrapped as the police officer established a good reason to suspect he was dealing in drugs while having a conversation with him over the phone. The authorities confirmed enough before they asked Mr. Ahmad to buy cocaine from him.

In Mr. Landon William’s case, the police officer failed to confirm the tip during the telephonic conversation with him. Most of the judges said Mr. Williams was entrapped because the authorities asked to buy cocaine from him before they had a viable reason to suspect he was dealing in drugs.

Slaferek Callihoo is a leading criminal defence law firm based in Edmonton, Alberta, which deals with successfully defending all major types of criminal offences. Visit our website to explore our legal services or contact us for legal advice.

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