A legal battle over whether certain kinds of undercover investigations are entrapment when there is not reasonable suspicion that a specific target is engaged in criminal activity may ultimately be headed to the Supreme Court of Canada.
A legal battle over whether certain kinds of undercover investigations are entrapment when there is not reasonable suspicion that a specific target is engaged in criminal activity may ultimately be headed to the Supreme Court of Canada.
A notice to seek leave to appeal has been filed over a decision by the Ontario Court of Appeal last month.
The June 11 ruling in R. v. Ahmad concluded that a “bona fide inquiry” by Toronto police officers was sufficient to rebut the claim of entrapment in the arrests of two street-level drug dealers.
The case focused on what is informally known as a dial-a-dope operation, commonly utilized by police in larger municipalities, which involves acting on a tip from a confidential source.
A phone number is called based on the tip and the officer seeks to set up a drug purchase during the conversation.
“In the drug trafficking trade, cell phones have become an indispensable tool for dial-a-dope operators,” wrote Justice William Hourigan.
“Today’s drug dealers conduct their business in both physical and virtual spaces,” added Hourigan along with Justice David Brown. Justice Susan Himel, sitting ad hoc, issued a concurring decision.
The court heard appeals jointly in the cases of Javid Ahmad and Landon Williams.
A stay of proceedings for Williams on the basis of entrapment issued by then-Superior Court Justice Gary Trotter, who is now on the Court of Appeal, was overturned, and the original conviction imposed by Superior Court Justice Beth Allen against Ahmad was upheld by the Court of Appeal in its decision issued June 11.
“This is the first time the Court of Appeal has been asked to deal with dial-a-dope operations directly” in the context of entrapment, says Michael Lacy, who acted for Ahmad.
“On a practical matter, this decision will make exposing improper motive virtually impossible. Police basically have a free rein,” suggests Lacy, president of the Criminal Lawyers’ Association and a partner at Brauti Thorning Zibarras LLP.
Marianne Salih, a Toronto defence lawyer, agrees that the ruling means that entrapment will be virtually impossible to show in the context of these types of drug cases.
“It is the final nail in the coffin for the entrapment defence,” says Salih, a lawyer at Edward H. Royle & Partners LLP.
The Court of Appeal heard that Williams sold a total of $160 of crack cocaine in 2011 on two occasions to Detective Constable Tony Canepa, a veteran Toronto police undercover drug officer.
Ahmad sold $140 of powder cocaine to another Toronto officer, after an arrangement was made to meet at the Yorkdale Mall.
In seeking to stay charges on the basis of entrapment, a defendant must show on the balance of probabilities that police were not acting on a “reasonable suspicion” or pursuing a bona fide inquiry — or that police went beyond providing an opportunity to commit a crime and instead induced the commission of an offence.
In the Williams trial, police did not have a reasonable suspicion that he would sell them drugs based on the confidential tip about a suspect called “Jay,” concluded Trotter.
The judge also faulted Canepa for a regular practice where he would seek to set up a drug sale almost immediately during the phone call and did not ask for details about the tip or the suspect.
“The less I know the better,” Canepa testified during the trial.
The majority decision of the Court of Appeal agreed that, in both cases, police did not have a reasonable suspicion that Williams or Ahmed “were engaged in unlawful drug-related activity” when they were offered the “opportunity” to sell drugs.
However, the majority decision concluded that Toronto police were engaged in a bona fide inquiry and suggested that advances in technology such as wireless phones make these offences more difficult to investigate.
The court also rejected the argument that police should be required to present other facts, such as whether the area where the transaction is to take place is known for criminal activity.
“Because of their mobile nature, a dial-a-dope transaction can occur virtually anywhere,” wrote Hourigan.
“In my view, where the police reasonably suspect that a phone line is being used as part of a dial-a-dope scheme, they may, as part of a bona fide inquiry, provide opportunities to people associated with that phone line to sell drugs, even if these people are not themselves under a reasonable suspicion,” he explained.
Himel, in her concurring decision, found that police did have reasonable suspicion in both cases and did not engage in entrapment.
She disagreed with Hourigan and Brown on whether suspicion about a specific phone number is sufficient.
“To suggest that an undercover officer can reasonably suspect that a particular phone line is being used for a dial-a-dope scheme, but not reasonably suspect that the person who answers that phone is engaged in such a scheme is to ignore a fundamental reality: phones are increasingly personal,” wrote Himel. The potential impact of the ruling is the risk of abuse by police, Lacy says.
“The purpose of the entrapment doctrine is we don’t want police to initiate criminal conduct, to be creating the circumstances of the offence,” he says.
“This expands and legitimizes this [dial-a-dope] practice in Ontario,” he adds.
These police operations are long-standing in Ontario and other provinces, especially British Columbia.
For her part, Salih questions the public funds put into investigating and prosecuting street-level drug dealers.
“It is an enormous amount of resources,” she says, noting that there are always six officers on a drug team, even for street-level buys.
“There is this idea that they are pursuing the little guy to get the supplier. The reality is they don’t do investigations beyond this person. They repeat the transactions over and over again and rack up charges. Police have a phrase for it: buying charges,” says Salih.
Under the Controlled Drugs and Substances Act, trafficking in crack or powdered cocaine, no matter what the amount, is an indictable offence that entitles the defendant to a preliminary hearing and a jury trial in Superior Court.
The amendments introduced by federal government earlier this year, which would eliminate preliminary hearings for a number of indictable offences, would not apply to any drug prosecutions.
