Cory Wilson is a criminal lawyer, serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge and Turner Valley.
The Supreme Court of Canada recently decided that police may conduct investigations into dial-a-dope drug trafficking operations where they have reasonable suspicion that a phone number is being used for drug trafficking. In two separate cases heard by the Supreme Court, Ahmad and Williams, police were investigating dial-a-dope trafficking operations.
In Ahmad, an informant told police about a trafficking operation and said “Romeo” was selling cocaine and provided the phone number. This was all of the information police had when they called the provided number. An undercover officer asked if “Romeo could help me out” and the reply was “what do you need”? The officer arranged to meet at the mall and bought cocaine from the dealer. After the transaction, police arrested the dealer, Ahmad and found cocaine, cash, two cell phones and an envelope with the name Romeo on it. Ahmad was convicted at trial and found that the officer had reasonable suspicion after Ahmad asked what do you need? The defence appealed.
In Williams, an informant tip that Jay was selling cocaine and provided the phone number. It was unclear how, but police linked Williams to the dealer. Police called the number and made two transactions for crack cocaine. On arrest, Williams had a gun, ammunition, drugs and cash. The trial judge stayed the charges because police didn’t have reasonable suspicion that Williams was involved in trafficking when they provided the opportunity to commit an offence. The Crown appealed.
After both matters went to the Court of Appeal, they were appealed to the Supreme Court.
Supreme Court Decisions
The majority overturned the conviction against Williams but upheld it against Ahmad. The SCC declined to alter the entrapment framework that as set out in Mack and Barnes. Mack identified two ways in which police can provide individuals with the opportunity to commit a crime without entrapping them:
- If the police reasonably suspected that the accused was already engaged in the criminal activity in question; or
- Where the police reasonably suspect that the criminal activity is occurring in a specified place and provide opportunities to people in that area.
The majority of the SCC held that a phone number can qualify as a place over which the police may form reasonable suspicion. However, police must reasonably suspect that the person answering the phone is engaged in criminal activity. Reasonable suspicion is a standard that allows the courts to determine whether police action was justified.
While reasonable suspicion cannot be grounded on a bare tip from an unverified source that someone is dealing drugs from a phone number, such a tip can be sufficiently corroborated to meet the standard. This can be done both through investigation prior to calling a suspected dial-a-dope phone line or possibly through a conversation with the target before presenting him or her with the opportunity to commit a crime.
The Supreme Court directed lower courts to assess the contents of the phone call and the surrounding circumstances to determine whether the investigating officers have the requisite grounds before providing an opportunity to commit a crime.
With respect to whether the police provided an opportunity to commit a crime, the SCC held that the analysis is focused on whether the officer’s act was “sufficiently proximate to conduct that would satisfy the elements of the offence.” The focus is on the definition of the offence and the context in which action occurred. In drug cases, an opportunity is provided when the terms of the deal narrow to the point that the request is for a specific type of drug and therefore, the target can commit an offence by simply agreeing to provide what the officer requested.
In Ahmad’s case, the SCC concluded that police had a reasonable suspicion that drug trafficking was occurring before providing Ahmad with an opportunity to commit a crime. Ahmad did not deny that his name was Romeo and his response to “what do you need” involved particular language used in drug trafficking. These facts corroborated the tip. As a result, Ahmad was not entrapped.
With respect to Williams, the SCC concluded that he did not provide any responses that would suggest that the phone line was being used for drug trafficking before police provided an opportunity to commit a crime. While he responded to the name Jay, he did not respond to lnguage associated with drug trafficking. The corroboration of the name was not sufficient to corroborate the allegations.
Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no-obligation consultation.
