Despite no specific finding by trial judge, if reasonable suspicion exists, there is no entrapment
The Court of Appeal for Ontario has ruled that there was no entrapment in a drug trafficking conviction, despite the trial judge’s failure to follow the reasonable suspicion test as mandated in R. v. Ahmad.
In R. v. Henry-Osbourne, the appellant appealed the stay of his conviction for trafficking heroin to an undercover police officer in three different dial-a-dope operations. He claimed that the trial judge made no specific finding of reasonable suspicion when the police officers initiated the transaction. He insisted that a proper application of the reasonable suspicion test would have led to a different result.
The reasonable suspicion test emphasized that in a dial-a-dope operation, the police must first form reasonable suspicion that the suspect is engaged in drug trafficking. It may be before initiating a call or during the conversation with the target. Without such reasonable suspicion, there is entrapment, and the criminal charges must be dismissed.
In her decision, Justice Lois Roberts said that the trial judge’s approach to the case was indeed flawed. There was no specific finding of reasonable suspicion. Neither was there a distinction made between reasonable and mere suspicion. The trial judge relied on investigative bona fides to justify the offer to purchase drugs which, following Ahmad, will not supplant an absence of reasonable suspicion.
Despite this flaw, applying Ahmad’s framework to this case still yields the same conclusion – that there was no entrapment. While not present before the initial phone call, the police officer had formed reasonable suspicion during the initial phone conversation. The officer had confirmed the appellant’s identity, made exploratory requests and engaged in drug-coded language. More importantly, reasonable suspicion existed before the offer to purchase a specific type of drug was made. This suspicion was further strengthened by subsequent text and telephone exchanges leading up to the appellant’s arrest.
The law on entrapment seeks to protect against random virtue-testing because it violates the principle that it is wrong for the police to manufacture crime, said Roberts. The appellant bears the burden to establish entrapment on a balance of probabilities, and in this case, he has failed.
