Her Majesty the Queen v. Ahmad; Her Majesty the Queen v. Williams
[Indexed as: R. v. Ahmad]
Ontario Reports
Court of Appeal for Ontario
Hourigan, D.M. Brown JJ.A. and Himel J. (ad hoc)
June 11, 2018
141 O.R. (3d) 241 | 2018 ONCA 534
Case Summary
Criminal law — Defence — Entrapment — Bona fide inquiry — Police entitled to provide opportunities to sell drugs to persons associated with phone lines which they reasonably suspect are being used in dial-a-dope operations even if they lack reasonable suspicion that those individuals themselves are engaged in criminal activity.
Criminal law — Drug offences — Sentence — Sentence of two years less a day in jail being fit for busy dial-a-dope trafficker.
Facts
Two separate cases were heard together on appeal concerning the entrapment defence in dial-a-dope drug trafficking investigations.
Williams' Case
Police received a tip from a confidential source that a person named "Jay" was selling cocaine in a particular area of Toronto and was provided with Jay's phone number. Police identified Williams as Jay, though the link was unclear. Williams had a prior conviction for possession of a narcotic and was on bail on drug charges.
An undercover officer called Jay's number. Williams answered and acknowledged he was Jay. The officer asked, "You around?" and said, "I need 80". Williams replied, "Okay. You have to come to me." They arranged a meeting. Williams asked, "What you want, soft or hard?" The officer purchased crack cocaine from Williams. After a second transaction, Williams was arrested. Police found a handgun and ammunition in his clothing.
The trial judge found that Williams was entrapped and stayed the drug-related charges. He declined to stay firearms and breach of recognizance charges. Williams was convicted of those offences. The Crown appealed, and Williams cross-appealed.
Ahmad's Case
An officer, acting on a tip that an individual named "Romeo" was selling powder cocaine in a dial-a-dope operation, called the phone number provided by the tipster. Ahmad answered but did not admit he was Romeo. The officer asked, "Can you help me out?" Ahmad replied, "What do you need?" and the officer replied, "Two soft". They arranged a meeting. After the officer purchased powder cocaine from Ahmad, Ahmad was arrested.
The trial judge rejected Ahmad's application for a stay of proceedings on the basis of entrapment and convicted him of possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He was sentenced to two years less a day. Ahmad appealed his conviction and sentence.
Held
The Crown's appeal was allowed; Williams' cross-appeal and Ahmad's appeals were dismissed.
Majority Reasons (Hourigan J.A., D.M. Brown J.A. concurring)
Introduction
[1] The primary issue on these appeals is the availability of the defence of entrapment in the context of police investigations of "dial-a-dope" schemes, which are operations in which a prospective drug buyer contacts a seller by phone and arranges to purchase drugs at a specific location. Acting on tips, the police in both cases contacted Williams and Ahmad respectively and arranged to purchase drugs from them. After the two men were found guilty of various drug-related and other offences, they applied for stays of proceedings on the basis that the police had entrapped them into committing the offences.
[2] In Williams' case, the trial judge agreed that he had been entrapped and stayed charges against him for trafficking crack cocaine and possession of the proceeds of crime. He rejected Williams' argument, however, that charges stemming from his arrest for firearm, ammunition and breach of recognizance offences should also be stayed because they were "inextricably linked" to the entrapment, or alternatively, that the evidence of those offences should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms. Williams was accordingly convicted of the other offences. The Crown appeals from the stay of the trafficking and proceeds of crime charges and Williams cross-appeals against his firearm, ammunition and breach convictions.
[3] In Ahmad's case, the trial judge rejected his application for a stay of proceedings on the basis of entrapment. He was convicted of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. He appeals against his conviction and sentence.
[4] For the reasons set forth below, the Crown appeal in Williams' case would be allowed and his cross-appeal dismissed. Ahmad's appeal would also be dismissed. In the view of the majority, the police in both cases were acting pursuant to a bona fide inquiry as the term should properly be understood in current policing and, accordingly, the defence of entrapment is not available to Williams or Ahmad.
Analysis
(a) Entrapment
(i) General Principles
[30] The seminal authority on the modern law of entrapment is the Supreme Court's decision in R. v. Mack, [1988] 2 S.C.R. 903. In setting out the contours of the entrapment doctrine, Lamer J., as he then was, sought to balance two competing objectives. On the one hand, he recognized that the police must be given considerable latitude in their investigation of crime, especially consensual crimes such as drug trafficking where traditional investigative techniques may be ineffective. On the other hand, he acknowledged that the police do not have unlimited power to randomly test the virtue of individuals and manipulate them to obtain convictions.
[31] Entrapment is a variant of the abuse of process doctrine. If an accused can show that the strategy the state used to obtain a conviction exceeded permissible limits, "a judicial condonation of the prosecution would by definition offend the community" and the accused is entitled to a stay of proceedings. However, given the serious nature of an entrapment allegation and the substantial leeway given to the state to develop techniques to fight crime, a finding of entrapment and a stay of proceedings should be granted only in the "clearest of cases". The accused must establish the defence on a balance of probabilities.
[32] In Mack, the Supreme Court set out the two principal categories of entrapment. The defence is available 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".
[33] The parties in both these appeals agree that there was no inducement and thus the issue of whether Williams and Ahmad were entrapped should be determined under the first category. More specifically, at trial, both cases were principally argued on the basis of whether the police had a reasonable suspicion that Ahmad and Williams were already engaged in criminal activity when the police presented them an opportunity to commit an offence.
(ii) Reasonable Suspicion
[41] Mack did not define the threshold of evidence required to meet the "reasonable suspicion" standard. Although arising in the context of searches, the Supreme Court's comments in R. v. Chehil, [2013] 3 S.C.R. 220, about the reasonable suspicion standard are instructive. In that case, Karakatsanis J. explained that reasonable suspicion is "a robust standard determined on the totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny". In the entrapment context, appellate courts have agreed that the standard requires "something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds".
[42] In these cases, the majority agrees with Williams and Ahmad that when the police provided them with the opportunity to sell drugs by requesting "80" and "two soft", they did not have reasonable suspicion that the two men were engaged in criminal activity.
[43] As the trial judge observed in Williams' case, the link between Jay and Williams was never established, nor was any information conveyed to D.C. Hewson or anyone else involved in the investigation about the reliability of the source and the information the source provided. Although Williams had a criminal history, this information alone could not elevate police suspicion that Williams was engaged in criminal activity above mere suspicion. As a result, the trial judge correctly concluded that the police did not have reasonable suspicion that Williams was involved in drug trafficking when they provided him with an opportunity to sell drugs.
[44] Similarly, there was no reasonable suspicion that Ahmad was engaged in drug trafficking when the police presented him with the opportunity to sell them drugs. D.C. Limsiaco was given a phone number and the name "Romeo" to connect on the phone with the prospective drug dealer. The information was provided to him by another police officer from a tipster. D.C. Limsiaco testified that no investigation of the information occurred. There were no personal details provided about Romeo other than the name. In the view of the majority, there was an absence of reasonable suspicion that Ahmad was engaged in criminal activity when the police offered him an opportunity to commit a crime.
(iii) Bona Fide Inquiry
[49] The absence of reasonable suspicion that a particular target is engaged in criminal activity, however, does not end the inquiry. As noted above, the first category of entrapment set out in Mack will arise if the police provide a person an opportunity to commit an offence without acting either (i) on a reasonable suspicion that the person is already engaged in criminal activity, or (ii) pursuant to a bona fide inquiry. As Lamer J. explained in Mack:
Of course, in certain situations the police may not know the identity of specific individuals, but they do know certain other facts, such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring. In those cases it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion. This latter situation, however, is only justified if the police acted in the course of a bona fide investigation and are not engaged in random virtue-testing.
[50] The leading case on what constitutes a bona fide inquiry is R. v. Barnes, [1991] 1 S.C.R. 449. In that case, an officer working in an area of a city considered to have a drug trafficking problem asked to purchase drugs from the accused without reasonable suspicion that the accused was already engaged in unlawful drug-related activity. Lamer C.J.C., writing for the majority of the court, held that the accused was not entrapped because the police were engaged in a bona fide inquiry. As he explained, the police may present an opportunity to commit a crime to people associated with a location where it is reasonably suspected that criminal activity is taking place, even absent a reasonable suspicion that those people are already engaged in criminal activity. He summarized:
The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry.
(iv) Dial-a-dope Context
[52] Barnes was, of course, decided at a time when cellphones were not as ubiquitous as they are today. More recent jurisprudence has sought to apply the entrapment doctrine in the face of new technological realities, including cellphones used in dial-a-dope schemes. Modern technology, including cellphones, has changed the way that some crime is committed. In the drug trafficking trade, cellphones have become an indispensable tool for dial-a-dope operators.
[53] The challenge police face in investigating a dial-a-dope scheme is that dial-a-dope operations are, by their very nature, difficult for the police to detect and prevent. As the Court of Appeal for British Columbia observed in R. v. Le:
The dial-a-dope system has made it easy for drug dealers to invade neighbourhoods, community parks and schools. There is no set "location" that drug dealers inhabit thanks to the use of the mobile telephone. The drug dealers travel throughout communities, and deliver their drugs as easily as someone would deliver a pizza. It goes without saying, and is apparent in the hundreds of reported cases in this province, that it is highly profitable, organized and insidious. It is also unfortunately difficult to investigate and detect.
[54] The absence of a set location in a dial-a-dope scheme presents challenges to the existing entrapment framework. As explained above, Mack and Barnes suggest that, in the absence of reasonable suspicion that either a person is already engaged in a particular criminal activity or the physical location with which that person is associated is a place where the particular criminal activity is likely occurring, the police may not present the person with an opportunity to commit a crime. While the police will be engaged in a bona fide inquiry if they direct their investigation to an area defined with sufficient precision where it is reasonably suspected that criminal activity is occurring, dial-a-dope schemes do not have set locations. Rather, because of their mobile nature, a dial-a-dope transaction can occur virtually anywhere.
[55] In the view of the majority, however, the absence of a set location in dial-a-dope schemes should not foreclose the possibility that the police may be engaged in a bona fide inquiry when they contact a telephone line associated with a dial-a-dope scheme and provide the opportunity to sell drugs. While Barnes considered a physical location, it did not foreclose the possibility that the police may be engaged in a bona fide inquiry even in the absence of a set location. As Lamer J. observed in Mack, there may be situations when the police "know certain other facts, such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring", which allow them to provide an opportunity to persons not themselves the subjects of reasonable suspicion as part of a bona fide inquiry.
[56] The entrapment doctrine must be sensitive to the particular context in which crime occurs. A rigid rule that there can be no bona fide inquiry unless the police target a specific geographic location is inconsistent with the principles underlying the doctrine. The mischief the entrapment doctrine seeks to prevent is the danger that police conduct will amount to random virtue-testing and attract innocent and otherwise law-abiding individuals to commit a crime that they would not have otherwise committed. Entrapment seeks to prevent arbitrary and abusive police tactics, not the legitimate investigation of a tip concerning suspected drug trafficking activity.
[57] Today's drug dealers conduct their business in both physical and virtual spaces. Limiting bona fide police inquiries to a specific physical location would unduly restrict their ability to combat dial-a-dope schemes in a manner inconsistent with the entrapment doctrine. As the British Columbia Court of Appeal observed in R. v. Swan:
Where the facts of this case differ significantly from Barnes, however, is in the nature of the technology employed by those in the dial-a-dope business, where the use of cell phones makes it difficult, if not impossible, to impose a meaningful territorial restriction on the breadth of the investigation. An analysis which would require the police to operate within a narrow geographical range analogous to the six block range in Barnes would unduly hinder them in responding to a technology which is inherently mobile. As stated by Chief Justice Lamer at para. 16 of Mack: "If the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police; as crimes become more sophisticated so too must the methods employed to detect their commission."
[58] At the same time, however, the police should not be given carte blanche to investigate dial-a-dope schemes under the guise of a bona fide inquiry. As in Barnes, meaningful restrictions must be crafted to ensure that police conduct in these investigations does not impermissibly cross the boundary into random virtue-testing. In the view of the majority, 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. To constitute a bona fide inquiry, the investigation must be motivated by the genuine purpose of investigating and repressing criminal activity and directed at a phone line reasonably suspected to be used in a dial-a-dope scheme.
[59] This approach is consistent with Barnes, where Lamer C.J.C. reasoned that the police were engaged in a bona fide inquiry on the basis of two factors: (1) the police conduct was motivated by the genuine purpose of investigating and repressing criminal activity; and (2) the police directed their investigation at a specific area where they reasonably suspected that drug-related crimes were occurring. Since dial-a-dope schemes do not have fixed locations, it would be impracticable to require the police direct their investigation at a specific area. Rather, if the police reasonably suspect that a phone line is being used in a dial-a-dope scheme and are acting for the purpose of investigating and repressing crime, they should be able to provide an opportunity to a person associated with that phone line as part of a bona fide inquiry.
[60] The decision of the British Columbia Court of Appeal in Swan helps to illustrate the limits of a bona fide inquiry. In Swan, the police cold-called a list of telephone numbers suspected of being used in dial-a-dope schemes. The officer coordinating the investigation had e-mailed the entire police department asking members to share the names, phone numbers and best tips they had for dial-a-dope schemes. The officer received 150-250 telephone numbers in various forms, ranging from napkins or torn up pieces of paper with phone numbers on them to more extensive tips, and compiled them into a list. For almost all of the numbers called, there was no name or other information provided in association with the number. The accused, Mr. Swan, received one of the calls from an undercover officer who asked him if he was "working". When he responded in the affirmative, she told him she needed "40 up" ($40 worth of cocaine) and arranged to meet with him to complete the sale.
[61] In finding that Mr. Swan had been entrapped, the court reasoned that the police had "overstepped the bounds of a bona fide police investigation, as that expression is used in Barnes, by proceeding armed only with mere suspicion and the hope that their unknown targets will provide the aesomething more' which was a necessary precursor to the invitation to traffic in drugs". Prowse J.A. explained that it was not the geographic breadth of the investigation that casted doubt on the bona fides of the investigation, but rather the methodology employed by the police: see para. 42. More specifically, the police had proceeded with their investigation with the "bare minimum of information regarding the telephone numbers compiled" in the hope that the recipient of the call would provide something that raised a reasonable suspicion before the request for drugs was made.
[62] In Le, in contrast, the British Columbia Court of Appeal upheld the conviction of an accused who was engaged in a dial-a-dope scheme. In that case, the police received a Crime Stoppers tip of a phone number being used in a dial-a-dope scheme monitored by an Asian male. There was evidence that police had performed certain checks with respect to the number, but there were no details regarding the nature of these checks. An undercover officer called the number and a male with a "thick Asian accent" responded. There was some dispute whether the officer asked "Can you hook me up with an eight ball?" or waited to request the eight ball until after the male had responded positively to simply "Can you hook me up?". The court, however, held that there was no entrapment even if the officer immediately requested an eight ball.
[63] One of the reasons the court said there was no entrapment in Le was because the police were engaged in a bona fide investigation. Distinguishing Swan in this regard Bennett J.A. explained that "[t]he call [in Le] was not part of hundreds of random calls, like Swan, but fell within a bona fide investigation or inquiry, having regard to the difficulty of investigating dial-a-dope offences and not confining dial-a-dope to a known location because of the mobile nature of the crime".
[64] The Alberta Court of Appeal briefly considered, without deciding, whether a phone number connected to drug activity is analogous to a geographic location as in Barnes. In R. v. Gladue, [2012] A.J. No. 464, the police called the accused based on a tip from a first-time informant with a criminal record. The tip included a phone number being used to sell crack cocaine in a dial-a-dope scheme. Nothing was done to verify the tip. The officer called, asked the accused if he was "working" or "rolling", and said he wanted to buy "four for a hundred". The court upheld the trial judge's conclusion that the police did not have reasonable suspicion that the accused was engaged in criminal activity before providing him with an opportunity to commit a crime. The court also rejected the Crown's alternative argument that the police were engaged in a bona fide inquiry. With respect to the Crown's submission that "a unique digital location" is analogous to the geographic location in Barnes, the court observed:
The Crown argues, for the first time on appeal, that, in calling the dial-a-doper number, the police were engaged in a bona fide investigation of a unique digital location similar in concept to the geographic location considered in Barnes. In Barnes at 461, the Supreme Court said "the police may present the opportunity to commit a particular crime to persons who are associated with a location where it is reasonably suspected that criminal activity is taking place." Assuming, without deciding, that a phone can be equated to a specific physical location, the requirement for a reasonable suspicion must still be met. We have concluded that the reasonable suspicion requirement is not met on the facts of this case.
[65] Gladue therefore left open whether a telephone line associated with a dial-a-dope scheme is similar to a "location" where it is reasonably suspected that criminal activity is taking place, as the concept of "location" is understood in Barnes. It also confirmed that the requirement of a reasonable suspicion must nevertheless be met for the police to be engaged in a bona fide inquiry. Importantly, however, the reasonable suspicion analysis for bona fide inquiries shifts away from a particular individual. In Barnes, it was directed at "a location where it [was] reasonably suspected that criminal activity [was] taking place". In a dial-a-dope case, where there is no set location, it should be directed at the phone line.
[66] The concurrence suggests that it is incongruous for the police to 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 to be engaged in drug trafficking. The majority disagrees. Reasonable suspicion may be directed at a particular individual or, as in Barnes and these cases, a particular location or particular phone line. In Barnes, for instance, Lamer C.J.C. observed that the factors that drew the officer's attention to the particular accused were not sufficient to give rise to reasonable suspicion that he specifically was engaged in criminal activity. Rather, it was the fact that the accused was in a particular area where it was reasonably suspected that drug activity was occurring that allowed the police, as part of a bona fide inquiry, to present him with the opportunity to sell drugs. In much the same way, when the police have reasonable suspicion that a phone line is being using in a dial-a-dope scheme, they should be allowed to provide opportunities to a person associated with that phone line, even if they do not have reasonable suspicion that the person is himself or herself engaged in drug-related activity.
[67] It follows that, because reasonable suspicion may be directed at a particular individual, a particular location or a particular phone line, the relevant considerations will vary depending on the context. This means that certain facts may support a finding that the police had reasonable suspicion that a particular phone line is being used in a dial-a-dope scheme, but not that the particular individual who is using that phone line is engaged in criminal activity, or vice versa. While there may be overlap, different considerations may take on different weight in the analysis. For example, the fact that a phone line has been linked through a tip to the drug trade may take on greater importance in determining whether the police had reasonable suspicion the line was being used for criminal activity than when assessing whether the police had reasonable suspicion that a particular person using that line was already selling drugs. Reasonable suspicion must be assessed in the context of the particular case.
[68] To summarize, to make out entrapment under the first category of the test articulated in Mack, the accused must establish (i) that the police provided an opportunity to commit an offence, and (ii) that the police did so without acting either on a reasonable suspicion that the accused was already engaged in criminal activity or pursuant to a bona fide inquiry. A bona fide inquiry, however, is not necessarily limited to a particular geographic location. In the context of a dial-a-dope scheme, the police will be engaged in a bona fide inquiry if they are acting for the purpose of investigating and repressing criminal activity and their investigation is directed at a person or persons associated with a phone line that is reasonably suspected to be used in the scheme.
(v) Application of Principles
[69] Applying that test to the facts of these appeals, the majority concludes that the police were engaged in bona fide inquiries when they provided Williams and Ahmad with opportunities to commit an offence. Williams and Ahmad have not met their burden of establishing entrapment on a balance of probabilities. Neither case is one of those "clearest of cases" warranting a stay based on entrapment.
[70] First, there is no dispute in either case that the police were acting for the purpose of investigating and repressing criminal activity. In both cases, the police received tips of suspected drug activity and acted on those tips. Williams and Ahmad were not approached for reasons unrelated to the investigation and repression of crime.
[71] Second, the police investigations were directed at persons associated with a phone line reasonably suspected to be used in dial-a-dope schemes.
[72] In Williams' case, the police received a tip from a confidential source that a person named "Jay" was selling drugs in a particular area of Toronto and were given the phone number he was using. Although it is unclear whether the source or P.C. Fitkin who received the tip made the link between Jay and Williams, P.C. Fitkin passed on the information to D.C. Hewson of the TPS Drug Squad together with a POI package identifying Williams. When D.C. Canepa called the phone number, the person who responded confirmed that he was Jay. It was only at this point that D.C. Canepa asked to buy "80", common parlance in the drug trade for $80 of cocaine.
[73] In the view of the majority, the police had developed reasonable suspicion by this time that the phone line was being used in a dial-a-dope scheme. The call was directed to a particular phone number, supplied by a source who indicated that it was being used by a person named Jay to sell drugs. The person who answered the phone confirmed he was Jay, corroborating the source's information and further focusing the police investigation. While the police did not have reasonable suspicion that Williams specifically was engaged in criminal activity, the objectively discernible facts support the police's reasonable suspicion that the telephone line was being used to sell drugs.
[74] This was not a random call, but rather a focused investigation. The source provided information both about the phone line being used in the dial-a-dope scheme and the name of the person using that phone line. While no inquiries appear to have been made about the source's reliability, the source's information about Jay was confirmed when the person who answered the phone replied positively to the name.
[75] In the view of the majority, the police are not required to investigate the reliability of a source before embarking on a phone conversation. While information about a source's reliability may in some circumstances provide reasonable suspicion that a phone line is being used in a dial-a-dope scheme, reasonable suspicion may also be developed in the course of the phone call, such as when the person who answers the call confirms the source's information.
[76] In Williams' case, the police reasonably suspected that the phone line was being used in a dial-a-dope scheme when they presented the opportunity to commit a crime. As a result, they were engaged in a bona fide inquiry at the time they gave Williams the opportunity to sell drugs.
[77] Similarly, the police were engaged in a bona fide inquiry when they provided Ahmad with the opportunity to sell drugs. The police received a tip that a man named "Romeo" was selling cocaine. D.C. Limsiaco called Romeo's phone number and asked if he was speaking to him. Although the person did not confirm or deny he was Romeo, he made no inquiries about the name. D.C. Limsiaco asked, "you can help me out?", a common phrase used to request drugs. The person responded, "what do you need?", another common phrase in the drug trade to ask what kind of drugs a buyer wants. D.C. Limsiaco then requested "two soft", meaning two ounces of powder cocaine.
[78] In the view of the majority, the police again had reasonable suspicion that the phone line was being used in a dial-a-dope scheme by the time they provided Ahmad with an opportunity to sell drugs. While the objectively discernible facts do not rise to the level of reasonable suspicion that Ahmad specifically was already engaged in criminal activity, they do support reasonable suspicion that the phone line he was using was being used to sell drugs. More specifically, police were acting on a tip directed at a particular phone line. While the person who answered the call did not confirm he was Romeo, the name provided in the tip, he did not question the name. Moreover, he engaged in a conversation with an apparent stranger, using coded language familiar to the drug trade. Based on the totality of the circumstances, the majority finds that the police had reasonable suspicion that the phone line was being used in a dial-a-dope scheme and were therefore engaged in a bona fide inquiry.
[79] As noted above, neither Williams nor Ahmad argued that the police went beyond providing an opportunity to commit a crime and induced them to commit an offence. As a result, Williams and Ahmad have failed to establish on a balance of probabilities that they were entrapped. The police in both cases were acting pursuant to a bona fide inquiry. In each case, the police conduct was directed at a person associated with a phone line reasonably suspected to be used in a dial-a-dope scheme and they acted for the purpose of investigating and repressing criminal activity.
(b) Williams' Cross-Appeal
[80] Williams cross-appeals against his firearm, ammunition and breach of recognizance convictions. He argues that these charges should have also been stayed because they were inextricably linked to the entrapment or, alternatively, that the evidence of those offences should be excluded under s. 24(2) of the Charter. His counsel conceded in oral argument, however, that if the police conduct did not constitute entrapment, these issues need not be addressed. Therefore, the cross-appeal is not considered.
(c) Credibility
[81] Ahmad submits that the trial judge committed reversible error in her credibility analysis by using Ahmad's silence against him and by making inconsistent findings of fact. In her reasons for judgment convicting him, the trial judge:
outlined the principles from R. v. Lifchus, [1997] 3 S.C.R. 320 and R. v. W. (D.), [1991] 1 S.C.R. 742 on the burden of proof and the assessment of evidence;
found Ahmad's evidence was "not believable". Specifically, the trial judge noted that Ahmad did not feel compelled to give Mikey's name to the police, the person he said was guilty of the offences. He also said that he initially lied to the police, saying he did not know him. His testimony was self-serving, remembering that Mikey had a backpack, but not what he was wearing, nor other details about him. Moreover, the defence theory left open how the police got the backpack; and
found that the officers' evidence was credible. Ahmad's counsel pointed to minor inconsistencies in their testimony, but the discrepancies identified would be reasonably expected given the nature of human perception. In the trial judge's view, the officers were forthright and presented their evidence in a cogent manner, even under vigorous cross-examination.
[82] On appeal, Ahmad alleges that the trial judge rejected his evidence primarily because he exercised his right to silence by withholding from the police the guilty party's name (i.e., Mikey). She also inferred that his silence was indicative of a guilty mind. Moreover, Ahmad submits that the trial judge made inconsistent findings of fact by using his evidence regarding utterances he made to the police before and after his arrest to undermine his credibility, despite rejecting his evidence in its entirety and despite there being no corroborating evidence on those utterances from the Crown witnesses.
[83] The majority would not give effect to this ground of appeal.
[84] The majority accepts the Crown's submission that the trial judge's reasons, read fairly, do not indicate that she used Ahmad's silence to reject his credibility or infer guilt. Rather, she thoroughly reviewed various aspects of his evidence and found that his explanation of events lacked common sense. In contrast, she accepted the officers' evidence, which contradicted Ahmad's evidence and was not challenged in any meaningful way.
[85] The appellant partially relies on this court's decision in R. v. Palmer, [2008] O.J. No. 4753 in support of this ground. In Palmer, this court reasoned that it was "open to the trial judge to reject the appellant's explanation given at trial [about why she did not advance [an explanation to police] and to use that finding in assessing the appellant's overall credibility". However, the trial judge was not entitled to go further as he did in that case and use the appellant's silence as a basis for finding her incredible. See, also, R. v. Duong, [2014] O.J. No. 2266. The majority is of the view that reading her reasons as a whole, the trial judge in this case undertook only the former, permissible line of reasoning.
[86] Moreover, the trial judge was entitled to rely on the internal inconsistencies in Ahmad's testimony to reject his evidence. She held that in the context of his testimony, his claim that he lied to the police made no sense. On a fair reading of her reasons, that holding did not reflect a factual finding that he did in fact lie to police as he said he did.
(d) Sentence Appeal
[87] Ahmad also argues that his sentence of imprisonment for two years less one day for the possession for the purpose of trafficking charge concurrent with six months' imprisonment for each of the two possession of proceeds of crime charges was manifestly unfit.
[88] Ahmad submits that the trial judge erred in principle by double-counting his youth record in considering both the record and the fact that his time spent in custody as a result of his youth offences had not deterred him from engaging in subsequent serious criminal activity. She also erred by erroneously considering his failure to provide information for the pre-sentence report as an aggravating factor, even though he was not obligated to do so. Moreover, she placed too little emphasis on rehabilitation, including the fact that he had complied with his bail conditions for several years and obtained a university degree. Finally, she did not consider whether his bail conditions, including spending five months under house arrest and a further seven on a curfew, should have mitigated the sentence. As a result, Ahmad submits that the trial judge imposed a sentence that is harsh and excessive and that a fit sentence is one of 18 months, to be served in the community.
[89] The majority would not interfere with the sentence imposed by the trial judge. Although the trial judge failed to consider Ahmad's time under house arrest and erroneously considered his failure to provide information for his pre-sentence report, in the view of the majority, the sentence imposed is nonetheless fit.
[90] In R. v. Downes, (2006), 79 O.R. (3d) 321, at para. 33, Rosenberg J.A. said the following in relation to the consideration of stringent bail conditions at sentencing:
Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest . . . [I]t is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account. The failure to do so will constitute an error in principle.
[91] The trial judge did not mention Ahmad's pre-sentence house arrest, let alone explain why she did not take it into account. This was an error.
[92] It was also an error for the trial judge to cite as an aggravating factor the fact that Ahmad "did not provide information about his family and his background to the author of the PSR, information that would have been useful to the court". As the appellant argued, there was no obligation on Ahmad to do so. While a sentencing judge may take into account information provided in the pre-sentence report when evaluating aggravating and mitigating factors, and an offender may very well not be helping himself by failing to provide information, that failure on its own is not an aggravating factor.
[93] The majority is not convinced that the trial judge "improperly double-counted" Ahmad's youth record simply because she additionally noted that that record appears not to have deterred him from criminal activity. Further, the majority does not accept that the trial judge failed to place enough emphasis on rehabilitation, including the facts of Ahmad's bail compliance and that he obtained a university degree. She explicitly discussed both of these facts in relation to rehabilitation.
[94] Despite the erroneous considerations outlined above, the majority agrees with the Crown that the sentence was at the lower end of the established range. This is particularly so given that the evidence established that Ahmad was a busy commercial trafficker, deeply involved in the drug business. At the time of his arrest, he had on his person a large amount of cocaine and cash, and two cellphones. Ahmad also had a previous conviction for the unauthorized possession of a firearm. In the view of the majority, the sentence was entirely fit in the circumstances.
Disposition
[95] For the foregoing reasons, the majority would:
(i) grant the Crown's appeal in Williams' case and set aside the stay of the drug transaction charges. Given that Williams has otherwise acknowledged his guilt, convictions would be entered on those charges and the case remitted to the trial court for sentencing on those charges;
(ii) dismiss Williams' cross-appeal;
(iii) dismiss Ahmad's conviction appeal; and
(iv) grant Ahmad leave to appeal his sentence, but dismiss his sentence appeal.
Concurring Reasons (Himel J. ad hoc)
Introduction
[96] I have read the reasons of the majority and agree that the Crown's appeal in Williams' case should be allowed, Williams' cross-appeal should be dismissed and Ahmad's appeal should be dismissed on the basis that the doctrine of entrapment does not apply to either of them. However, I arrive at this result for different reasons than those of my colleagues. In my view, the police in both cases acted on a reasonable suspicion that Williams and Ahmad were already engaged in criminal activity when they presented them with an opportunity to commit an offence. Accordingly, there is no need to consider whether the police were acting pursuant to a bona fide inquiry.
Analysis
(a) Overview of the "Reasonable Suspicion" Requirement
[98] In the leading decision on entrapment, R. v. Mack, [1988] 2 S.C.R. 903, Lamer J. wrote:
[T]here is entrapment when, (a) 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; (b) 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.
[99] The rationale for this test is twofold. First, if there is no reasonable suspicion or bona fide inquiry, there is a risk that police will attract people who otherwise would not be involved in criminal activity to commit an offence; and, second, it is not a proper use of the police's power to randomly test the virtue of people.
[100] Entrapment is to be recognized in only the "clearest of cases". The doctrine of entrapment will not apply if the police acted on a reasonable suspicion that the accused was already engaged in criminal activity when they presented the accused with an opportunity to commit an offence. However, the presence of a reasonable suspicion or a bona fide inquiry will not justify police techniques that go beyond providing an opportunity. Once an accused has demonstrated that the police used tactics that went beyond acceptable limits, "judicial condonation of the prosecution would by definition offend the community".
[101] Reasonable suspicion requires "something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds". It "addresses the possibility of uncovering criminality, and not a probability of doing so". Reasonable suspicion involves "a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence". Even though a "hunch" or "feeling" will not give rise to a reasonable suspicion, the standard is "necessarily . . . low" and not "unduly onerous".
[102] Reasonable suspicion involves "a minimal level of belief which does not rule out the possibility of innocent conduct or aeother reasonable possibilities'". It "can be established with information that is different in quantity or content than that required to establish probable cause" and it can "arise from information that is less reliable than that required to show probable cause". Although reasonable suspicion must be based on "objectively discernible facts", "[w]hat will give rise to a reasonable suspicion . . . will vary from case to case".
[103] The Supreme Court of Canada's description of reasonable suspicion in R. v. MacKenzie, [2013] 3 S.C.R. 250, at para. 72, is instructive:
Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
(b) Application to the Cases at Bar
[104] It is the view of the concurrence that early on in their telephone conversations, the undercover officers acquired a reasonable suspicion that Williams and Ahmad were already engaged in criminal activity.
[105] In Williams' case, (i) the police were acting on a tip that they had received from a confidential source, which indicated that a person by the name of "Jay" was using a certain phone number and selling cocaine in a particular area of Toronto; and (ii) the reliability of this tip was confirmed when the officer called the phone number and the person who answered immediately acknowledged that he was Jay.
[106] In Ahmad's case, (i) the police were again acting on a tip, which revealed that a person by the name of "Romeo" was selling powder cocaine and using the phone number; (ii) although the person who answered the call did not confirm he was Romeo, he did not question the name, and instead continued the dialogue; and (iii) the person who answered the call engaged in a conversation with an apparent stranger, using coded language familiar to the drug trade. When the officer stated "Matt said I can give you a call . . . said you can help me out?" the person who answered did not react with surprise or indignation or say "What do you mean?" or "What are you talking about?" or "You've got the wrong number." Rather, his response was consistent with what a drug dealer would say: "What do you need?" This confirmed the reliability of the tip. He also responded as if he knew who the "Matt" used by the undercover officer in his backstory was, which confirmed the reliability of the tip further.
[107] Moreover, Ahmad's response "What do you need?" to D.C. Limsiaco's statement "said you can help me out?" is similar to Mr. Olazo's positive response to the officer's question "can you meet me" or "where are you" in R. v. Olazo, [2012] B.C.J. No. 234. In that case, the British Columbia Court of Appeal concluded that Mr. Olazo's response demonstrated a familiarity with drug terminology, helped to confirm the tip and, in doing so, established a reasonable suspicion.
[108] While the majority concludes that the police did not have a reasonable suspicion that Williams and Ahmad were already engaged in criminal activity, they do find that the police had a reasonable suspicion that the phone lines were being used for criminal activity. With respect, the concurrence does not agree with this approach.
[109] First, 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. Although some people might pick up their friend or relative's phone when it rings, an undercover officer can still reasonably suspect that the person who answers is the user or owner of that phone. After all, in assessing reasonable suspicion "[w]e are looking . . . at possibilities, not probabilities". Accordingly, in the dial-a-dope context, there is little real difference between information that the police obtain about the phone line and information that they obtain about the person who answers it. Quite often, information about the one is information about the other.
[110] Second, the concurrence notes that the majority considers certain facts in concluding that the police reasonably suspected that the phone lines were being used for criminal activity, but it is unclear why these same facts could not have also supported a finding that there was a reasonable suspicion with respect to Williams and Ahmad's involvement in criminal activity.
[111] For example, the majority relies on the fact that no information was conveyed about the reliability of the source and the information the source provided in finding that there was no reasonable suspicion that Williams was involved in a dial-a-dope scheme. However, in concluding that there was a reasonable suspicion that the phone line was being used for such a purpose, the majority explains that "the police are not required to investigate the reliability of a source before embarking on a phone conversation" and that "reasonable suspicion may also be developed in the course of the phone call, such as when the person who answers the call confirms the source's information". The fact that the source's information about Jay was confirmed in the course of the phone call was used to find reasonable suspicion with respect to the phone line, but was not considered when assessing whether there was a reasonable suspicion with respect to Williams, even though it would have been equally relevant to that analysis.
[112] A similar concern arises in the analysis of Ahmad's case. The trial judge found that a reasonable suspicion that Ahmad was already engaged in criminal activity was formed when he asked "What do you need?" in response to D.C. Limsiaco's question "Can you help me out?" Although the majority rejected this conclusion, they later refer to the very same language in finding that the undercover officer reasonably suspected that the phone line was being used in a dial-a-dope scheme:
. . . D.C. Limsiaco asked "you can help me out?", a common phrase used to request drugs. The person responded "what do you need?", another common phrase in the drug trade to ask what kind of drugs a buyer wants. . . .
. . . While the person who answered the call did not confirm he was Romeo, the name provided in the tip, he did not question the name. Moreover, he engaged in a conversation with an apparent stranger, using coded language familiar to the drug trade. Based on the totality of the circumstances, I find that the police had reasonable suspicion that the phone line was being used in a dial-a-dope scheme and were therefore engaged in a bona fide inquiry.
These facts equally apply to a finding that there was a reasonable suspicion with respect to Ahmad's involvement in crime.
[113] It is also the view of the concurrence that the information obtained by the undercover officers later on in their conversations with Williams and Ahmad further solidified their reasonable suspicions. In particular, Williams and Ahmad's responses to the officers' statements that they needed "80" and "two soft" suggested that Williams and Ahmad were already involved in the drug trade, and neither of these statements by the officers constituted the giving of an opportunity to commit an offence.
[114] In arriving at this conclusion that the officers' statements did not amount to offers to purchase drugs, the concurrence follows the reasoning in two decisions of this court: R. v. Imoro, [2010] O.J. No. 586 and R. v. Ralph, [2014] O.J. No. 13. In Imoro, at para. 8, Laskin J.A. considered the doctrine of entrapment outlined in Mack, which "reflects judicial disapproval of unacceptable police or prosecutorial conduct in investigating crimes", and found, at para. 15, that the trial judge had erred in finding that the officer's question "Can you hook me up?" provided the accused with an opportunity to sell drugs. He stated that "[t]his mischaracterization stems from a failure to properly distinguish between legitimately investigating a tip and giving an opportunity to commit a crime". The Court of Appeal held that the question "Can you hook me up?" was "simply a step in the police's investigation of the anonymous tip" and "did not amount to giving Mr. Imoro an opportunity to traffic in drugs". By asking "Can you hook me up?" all the officer was really asking Mr. Imoro was whether he was a drug dealer. Laskin J.A. concluded that there was no evidence to support the finding of entrapment.
[115] In Ralph, at para. 32, the Court of Appeal for Ontario agreed with the trial judge that entrapment was not made out in that case where police received information about a drug dealer who could be reached at a particular number. The undercover officer called the number and left a message for the person to call back. Forty-one minutes later a male called back and they had a conversation which resulted in them meeting later that night and the officer purchasing 1.6 grams of cocaine. Rosenberg J.A. held that the officer's statement, "I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up . . . I need product", is similar to the "Can you hook me up?" question in Imoro. He wrote:
As found by the trial judge, it was a legitimate investigative step. When the appellant responded as he did, this response together with the anonymous tip was, as found by the trial judge, sufficient to provide the officer with reasonable suspicion and justify the further statements from the officer. This was not a case of random virtue testing and entrapment was not made out.
[116] It is clear from Imoro and Ralph that the court must distinguish between legitimately investigating a tip, such as by using veiled statements to ask whether the accused is a drug dealer and giving an opportunity to commit a crime. However, these cases do not stand for the proposition that the police cross the line from "legitimately investigating" to "giving an opportunity" when they make a specific request for drugs, such as "I need 80" or I need "two soft".
[117] In the British Columbia Court of Appeal's decision in R. v. Le, [2016] B.C.J. No. 716, at para. 65, the court noted that much discussion in the appeal turned on whether the undercover officer investigating the dial-a-dope scheme had asked the appellant "Can you hook me up?" or "Can you hook me up with an eight ball?" (emphasis added), which is a more specific request for drugs. However, the Court of Appeal concluded that the specific language made no difference. The court expressed the following concern, at para. 93:
Defence counsel argued that there is a meaningful distinction between veiled statements asking if the other party is a drug dealer and more specific requests for types, quantities, or values of drugs. It was argued that the former statement is an investigatory step while the latter is an offer to commit an offence. Parsing the language of undercover drugs calls in dial-a-dope investigations in this way takes an unnecessarily narrow approach. It ignores the surrounding circumstances, but more importantly, it strays far from the core principle underlying Mack.
[118] The majority in the cases at bar agrees with this concern, at para. 39 of their reasons, where they state that "an overly technical approach to the entrapment doctrine risks detaching the doctrine from its purpose and unduly restricting police conduct". In R. v. MacKenzie, at para. 73, the Supreme Court took a similar position:
Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not -- indeed must not -- devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.
[119] As Le indicates, it is inconsistent with the core principles underlying Mack to try to parse the language of undercover officers by distinguishing veiled statements asking if the other party is a drug dealer from specific requests for quantities of drugs. In other words, there is no meaningful distinction between asking someone "Can you hook me up?" -- which is not an opportunity to commit a crime -- and specific requests such as "I need 80" or I need "two soft". Accordingly, it is the view of the concurrence that an opportunity to commit an offence was not provided when the undercover officers in the cases at bar stated that they needed "80" and "two soft". Neither had an opportunity been provided prior to that point.
[120] A comparison of the officers' statements in Ralph and Williams' case illustrates the artificiality of attempting to parse the language that officers use in dial-a-dope investigations, as Le suggests. In Williams' case, D.C. Canepa stated, "Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80." In Ralph, the undercover officer stated, "I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up . . . I need product", which was found to be a legitimate investigative step and not the giving of an opportunity. Both statements indicate that the officer in question was in contact with someone from an area of the city known for illicit activity, that this contact gave the officer the number of a person who could "help [him] out" or "link [him] up", and that the officer needed drugs. The fact that the officer in one case stated that he needed "80" while the officer in the other indicated that he needed "product" is not a meaningful distinction given that both of these terms are references to drugs.
[121] Applying Imoro, Ralph and Le to the cases at bar, the view of the concurrence is that the information contained within Williams and Ahmad's responses to the officers' requests for "80" and "two soft", respectively, further solidified the officers' reasonable suspicions. Williams responded, "Okay. You have to come to me" to D.C. Canepa's statement that he needed "80", which suggests that Williams was already involved in the drug trade. The explanation provided by D.C. Canepa as to how he got Williams' phone number -- that Jesse from Queen and Jarvis gave him the name "Jay" and his number (suggesting needs that were illicit) and told him that Jay would help him out -- was not questioned by Williams. Williams did not respond by saying "What are you talking about?" or by hanging up, as one would expect an innocent person to do in this situation. Rather, Williams responded affirmatively to D.C. Canepa's statement that he needed "80", a veiled reference to drugs.
[122] Similarly, Ahmad's response to D.C. Limsiaco's statement that he needed "two soft" -- another reference to drugs -- was to tell the officer that he would get back to him and, 15 minutes later, to call the officer back. Again, this response indicated that Ahmad understood the officer's use of drug terminology and was considering what had been discussed. This would have further supported a reasonable suspicion about Ahmad's involvement in the drug trade.
[123] In both of these cases, Williams and Ahmad's "own expression[s] of willingness to transact during the phone call[s] raised a reasonable suspicion". In the view of the concurrence, the reasonable suspicion crystallized before any offer to commit a crime occurred.
[124] Finally, a necessarily principled approach to the doctrine of entrapment leads to the same conclusion that entrapment is not made out in this case.
[125] The reasonable suspicion requirement under the entrapment doctrine seeks to prevent police conduct that will attract innocent and otherwise law-abiding individuals to commit a crime that they would not have otherwise committed. It was designed to target police "conduct that the citizenry cannot tolerate" and will only be recognized in the "clearest of cases". Although the Supreme Court in Mack acknowledged that the power of the police to investigate criminal activity is not unlimited, it also sought to give the police considerable latitude so that they can effectively investigate crime.
[126] In determining whether the defence of entrapment has been made out it is essential that the court does not lose sight of these underlying reasons for recognizing the doctrine in the first place. However, some of the jurisprudence has done exactly that. A number of cases have narrowly focused on the minute language choices of the investigating officer to find entrapment despite the fact that the police conduct does not risk causing an innocent person to sell drugs. The court must never lose sight of the core question: is the police's conduct really offensive? As the Supreme Court identified in Mack, "[i] n the entrapment context, the court's sense of justice is offended by the spectacle of an accused's being convicted of an offence which is the work of the state". Staying cases in which there is no actual offensive police conduct is harmful to the integrity of the administration of justice. It is crucial "that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope".
[127] The British Columbia Court of Appeal's comments in Le, at para. 95, are also apt here:
Objectively speaking, innocent and otherwise law-abiding individuals would not be "manipulated" or tempted to enter the dangerous and illicit drug trade if asked by a stranger over the phone to sell him drugs. It defies common sense to suggest that asking whether an individual is willing to sell specific types, quantities, or values of illicit drugs runs the "serious unnecessary risk" that an otherwise innocent person would then go out, procure the drugs, meet with and sell them to a stranger.
[128] Neither Williams' case nor Ahmad's case is one of those "clearest of cases" warranting a stay based on entrapment. The police conduct in these cases did not carry the risk that innocent persons would commit a crime that they would have not otherwise committed. Neither was this conduct that the citizenry cannot tolerate. On the contrary, the police relied on legitimate investigative techniques that are responsive to the modern realities of the drug trade and its reliance on virtual spaces to evade police scrutiny.
Result
[129] For these reasons, the concurrence would allow the Crown appeal in Williams' case, dismiss his cross-appeal, dismiss Ahmad's appeal and make the dispositions outlined by the majority.
Final Disposition
Crown's appeal allowed; cross-appeal and Ahmad's appeals dismissed.