R. v. Ahmad

Supreme Court of Canada 2020 SCC 11

Case Information

Indexed as: R. v. Ahmad

File Nos.: 38165, 38304

Appeals Heard: October 11, 2019

Judgment Rendered: May 29, 2020

Dockets: 38165, 38304

Parties

Between:

Javid Ahmad Appellant

and

Her Majesty The Queen Respondent

— and —

British Columbia Civil Liberties Association, Criminal Lawyers' Association of Ontario and Canadian Association of Chiefs of Police Interveners

And Between:

Landon Williams Appellant

and

Her Majesty The Queen Respondent

— and —

British Columbia Civil Liberties Association and Independent Criminal Defence Advocacy Society Interveners

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Joint Reasons for Judgment: (paras. 1 to 85) — Karakatsanis, Brown and Martin JJ. (Abella and Kasirer JJ. concurring)

Reasons Dissenting in Part: (paras. 86 to 188) — Moldaver J. (Wagner C.J. and Côté and Rowe JJ. concurring)

Headnote

Criminal law — Abuse of process — Entrapment — Dial‑a‑dope operations — Police receiving tips of unknown reliability that phone numbers of two accused associated with drug trafficking — Undercover officers phoning each accused and arranging for drug transactions — Accused arrested and charged with drug‑related offences — Accused seeking stays of proceedings on basis of entrapment — Whether police had reasonable suspicion that accused or phone numbers were engaged in drug trafficking at time police provided opportunity to commit offences — Application of entrapment framework to dial‑a‑dope investigations.

In each appeal, the police received an unsubstantiated tip that a phone number was associated with a suspected dial‑a‑dope operation. In these operations, drug traffickers use cell phones to connect with their customers and sell them illicit drugs. Officers called the numbers and, in brief conversations with the men who answered, requested drugs and arranged meetings to complete the transactions. A and W were subsequently arrested and charged with drug‑related offences. At trial, each accused claimed that the proceedings should be stayed on the basis of entrapment. In A's case, the trial judge entered convictions, concluding that the accused was not entrapped because the police had not offered him an opportunity to traffic drugs until they had sufficiently corroborated the tip in the course of the conversation. In W's case, the trial judge found that the accused was entrapped because the police provided him an opportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking. The Court of Appeal held that entrapment was not made out for either A or W. A majority of the court concluded that where reasonable suspicion relates to the phone number itself, the police can provide opportunities to commit offences to a person associated with that phone number, even if they do not also have a reasonable suspicion about the person who answers the phone. Accordingly, the Court of Appeal dismissed A's appeal but allowed the Crown's appeal in W's case, entering convictions.

Held: The appeal by A should be dismissed.

Held (Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting): The appeal by W should be allowed, the convictions set aside, and the stay of proceedings reinstated.

Per Abella, Karakatsanis, Brown, Martin and Kasirer JJ.: The entrapment framework set out in R. v. Mack , [1988] 2 S.C.R. 903 , and R. v. Barnes , [1991] 1 S.C.R. 449 , has proved workable for decades in a variety of contexts. It has stood the test of time, furnishing a principled, stable and generally applicable doctrine that is fully capable of adapting to a variety of circumstances and responding to the evolution of crime and police tactics. There is no reason to alter the carefully calibrated balance struck in these cases in investigations of suspected dial‑a‑dope operations. Applying the Court's entrapment framework and in particular its reasonable suspicion standard, the decision of each trial judge should be affirmed. While A was not entrapped, W was.

The Court's decision in Mack settled the law of entrapment in Canada. It set out two alternative branches, either of which is sufficient to ground an accused's claim of entrapment and justify a stay of proceedings. On the first branch, at issue in these appeals, the police may present an opportunity to commit a crime only upon forming reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry. The offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or a combination of both. In every context, the reasonable suspicion standard ensures courts can conduct meaningful judicial review of what the police knew at the time the opportunity was provided. This standard requires the police to disclose the basis for their belief and to show they had legitimate reasons related to criminality for targeting an individual or the people associated with a location.

An individual phone number can qualify as a place over which police may form reasonable suspicion. However, a phone number is not the same as a public physical location. A phone is a means of private communication between persons, and calling a number, or exchanging text messages, is an inherently private activity. Accordingly, state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space. Technology and remote communication significantly increase the number of people to whom police investigators can provide opportunities, thereby heightening the risk that innocent people will be targeted. It is therefore important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime. The virtual space must be defined with sufficient precision in order to ground reasonable suspicion. Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows.

Police cannot offer a person who answers the phone the opportunity to commit an offence without having formed reasonable suspicion that the person using that phone, or that phone number, is engaged in criminal activity. Whether the police are targeting a person, place or phone number, the legal standard for entrapment is a uniform one, requiring reasonable suspicion in all cases where police provide an opportunity to commit a criminal offence. Reasonable suspicion is a familiar legal standard that provides courts with the necessary objective basis on which to determine whether the police have justified their actions. It protects individuals' interests and preserves the rule of law by ensuring courts can meaningfully review police conduct. It requires that a constellation of objectively discernible facts give the officer reasonable cause to suspect that a certain kind of crime was being committed by a particular person or in a particular place. Reasonable suspicion is also individualized, in the sense that it picks an individual target — whether a person, an intersection or a phone number — out of a group of persons or places. When an objectively grounded suspicion attaches to a sufficiently particularized constellation of factors, like those relating to an individual phone number, concerns about the police intruding on the protected interests of all persons in broadly or poorly defined locations fall away.

A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion. However, it can be sufficiently corroborated such that the standard is met. Police practice itself shows that, whether the police are investigating an individual or a phone number, various steps can be taken upon receiving a tip associating a phone number with dial‑a‑dope activity before acting on it by calling the number. Although it would be prudent for police officers to investigate the reliability of the tip before placing the call where they are able to do so, it is also possible for the police to form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime. The target's responsiveness to details in the tip, along with other factors, may tend to confirm the tip's reliability. The target's use of or response to language particular to the drug subculture properly forms part of the constellation of factors supporting reasonable suspicion. Whether or not responding to such terminology is neutral or adds to the weight of other factors will depend on the circumstances. There is no requirement that the police rule out innocent explanations for these responses.

Unless the police had formed reasonable suspicion before a phone call was made, review of the words spoken during the call is unavoidable in order for the court to determine whether an accused was entrapped. Reviewing conversations between undercover officers and their targets in the dial‑a‑dope context is the inevitable consequence of accepting that the police must have reasonable suspicion before offering an opportunity to commit an offence. Reasonable suspicion is not formed retroactively, but applied prospectively. Reasonable suspicion can justify an action only on the basis of information already known to police. A court must examine all of the circumstances, and not merely the language used during the call, in order to determine whether police had formed reasonable suspicion by the time the opportunity was provided.

The determination of whether a police action constitutes an opportunity to commit an offence is informed both by the definition of the offence and the context in which the action occurred. The definition of drug trafficking includes not only selling, transporting and administering illegal drugs, but also making an offer to do so. In the dial‑a‑dope context, in which the initial interaction between the police and target occurs entirely over the phone, the exercise centres on determining whether words spoken by the police officer constitute an opportunity to commit drug trafficking. The inquiry is properly directed to how close the police conduct is to the commission of the offence. To allow the police sufficient flexibility to investigate crime, an officer's action — to constitute an offer of an opportunity to commit a crime — must be sufficiently proximate to conduct that would satisfy the elements of the offence. In the particular context of drug trafficking, an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering "yes".

The facts of each of the two appeals lead to different conclusions. In A's case, the police had a reasonable suspicion of drug trafficking before providing the opportunity to commit an offence and therefore A was not entrapped. The officer had asked A if he went by the name provided in the tip, which he did not deny. When the officer asked A, "You can help me out?", A responded positively to this use of language particular to the drug subculture, asking the officer, "what do you need?" Having connected the tip to the person on the phone, the aspect of the tip that asserted illegality was corroborated by A's understanding of drug‑trafficking slang and willingness to engage in it. In this context, these markers of reliability together sufficiently corroborated the initial tip to give rise to an objective possibility that A was involved in drug trafficking. Unlike in A's case, there was nothing in W's responses to suggest that the phone number was being used to sell drugs before the officer provided the opportunity to traffic. Therefore, W was entrapped. The police officer did not wait to see how W would respond to an investigative question that could have corroborated that W was engaged in criminal activity prior to providing the opportunity to commit the crime. Although W confirmed that he went by the name provided in the tip, he did not respond positively to slang particular to the drug subculture until after the opportunity had been provided. The corroboration of the name did not strengthen the reliability of the tip in its assertion of illegality. The police had no more than a bare tip that someone using a particular phone number was selling drugs and this did not ground reasonable suspicion.

Per Wagner C.J. and Moldaver, Côté and Rowe JJ. (dissenting in part): Both appeals should be dismissed. Attempting to apply the doctrine of entrapment as formulated in R. v. Mack , [1988] 2 S.C.R. 903 , and R. v. Barnes , [1991] 1 S.C.R. 449 , to present‑day dial‑a‑dope operations has revealed both doctrinal and policy concerns with how the first branch of the doctrine is currently formulated. Both the individualized suspicion and the bona fide inquiry prongs of this branch have failed to remain faithful to the balance struck in Mack and Barnes between protecting an individual's legitimate interest in being left alone by the state and effective law enforcement. The bona fide inquiry prong must be revised to preserve this fundamental balance, to rectify doctrinal issues within the prong itself, and to address policy concerns that have arisen with respect to the prong's application. The revised framework will ensure that only the clearest of cases of intolerable state conduct are captured by the doctrine of entrapment by refocusing the doctrine on its principled origin: abuse of process. Applying the revised framework, the police were engaged in a bona fide inquiry when they offered each A and W an opportunity to commit the offence of drug trafficking.

The individualized suspicion prong of the doctrine of entrapment has come under fire for leading to anomalous results, particularly in dial‑a‑dope cases where police call alleged drug dealers based on minimal information. This prong permits the police to provide an individual with an opportunity to commit an offence if they reasonably suspect that the targeted individual is already engaged in criminal activity of the same type. The concern expressed is that even though the investigating officer may not possess individualized reasonable suspicion at the time they offer an opportunity, the police conduct in a typical dial‑a‑dope case cannot be said to rise to the level of an abuse of process warranting a stay of proceedings. In an attempt to both adhere to the formal requirement of reasonable suspicion and preserve the substantive abuse of process character of entrapment in dial‑a‑dope cases, some courts have drawn a distinction between taking an investigative step (which does not require reasonable suspicion) and presenting an opportunity to commit an offence (which does). The problem with the fine line distinction this approach draws is that it requires courts to closely parse undercover calls to determine whether an accused was entrapped. This approach creates artificial distinctions based on the specific words used by the undercover officer rather than focusing on whether society would view the officer's conduct, considered in context, as simply intolerable. These distinctions are often difficult to draw, and promote an approach that is akin to dancing on the head of a pin.

The manner in which the majority proposes to dispose of the appeals provides a clear example of the dubious distinctions that flow from an application of the parsing approach. In both cases, an undercover officer made a call based on information from an anonymous or a confidential source. Each call was answered by a then‑unknown man. Seemingly without surprise, each man confirmed or did not deny that he went by a name that, based on the officer's information, belonged to a drug dealer operating out of the phone line. The only distinction between the cases is that the undercover officer in W's case used a drop name before asking for a specific quantity of cocaine, whereas the undercover officer in A's case used a drop name and waited for A to say "what do you need?" before asking for a specific quantity of cocaine. The conduct of either undercover officer in these cases cannot be described as intolerable — the officers were doing precisely what society would expect them to do upon receiving information about an alleged dial‑a‑dope operation. A reasonably informed observer in our society would be utterly bewildered by the majority's conclusion that the conduct of the undercover officer in W's case rises to the level of an abuse of process while the conduct of the undercover officer in A's case is acceptable.

The problem in applying the bona fide prong as defined in Mack and Barnes to present‑day dial‑a‑dope investigations is that the reasonable suspicion standard has evolved since those cases were decided. The bona fide inquiry prong permits the police to randomly approach citizens and offer them opportunities to commit offences, so long as the area within which they are operating is defined with sufficient precision and they reasonably suspect that that type of crime is occurring in the area. The incorporation of this type of generalized location‑based reasonable suspicion into the bona fide inquiry prong reflects the view that requiring the police to meet a more stringent standard, such as individualized reasonable suspicion, would unduly hinder law enforcement efforts and thereby fail to strike an appropriate balance between individual liberties and legitimate law enforcement. However, in R. v. Chehil , 2013 SCC 49 , [2013] 3 S.C.R. 220 , the notice that reasonable suspicion includes generalized suspicion that attaches to a particular activity or location rather than to a specific person was rejected. Put differently, since Mack and Barnes were decided, individualization has come to define the reasonable suspicion standard. In this way, the more restrictive meaning ascribed to reasonable suspicion in Chehil has rendered it incompatible with the balance between individual liberties and legitimate law enforcement struck by the bona fide inquiry prong in Barnes .

The solution to the doctrinal incoherence and policy concerns revealed by the dial‑a‑dope entrapment jurisprudence is to revise the bona fide inquiry prong. The revised framework will refocus the bona fide inquiry prong on its principled origin: abuse of process. Under the revised framework, the police should be found to be acting pursuant to a bona fide inquiry where they meet three requirements. First, their investigation must have been motivated by genuine law enforcement purposes. Second, they must have had a factually‑grounded basis for their investigation. They need to be able to point to a specific reason for their investigation beyond a mere hunch. Third, their investigation must have been directed at investigating a specific type of crime within a tightly circumscribed location (whether physical or virtual). Whether the precision of the location meets this threshold should be determined by reference to the overarching question entrapment poses, that is, whether, in all the circumstances, society would view the inquiry as abusive. Inevitably, whether a particular type of location is sufficiently circumscribed for the purposes of a particular type of investigation will need to be considered on a location‑by‑location basis, until a jurisprudence develops. Some considerations may include: the nature and seriousness of the type of crime under investigation; the number of citizens that may be impacted by the investigation technique used by the police; the nature of the location under investigation; and the intrusiveness of the technique.

The revised framework offers significant improvements to the bona fide inquiry prong by bringing it in line with recent doctrinal developments, and by placing limitations on the scope of the location under investigation. These limitations mitigate the risk that police may be able to indiscriminately offer opportunities within an expansive area (i.e., to conduct large‑scale random virtue testing) and effectively address the risk of police targeting the vulnerable and marginalized and engaging in racial profiling. If the police deliberately target the marginalized and vulnerable, it will amount to impermissible bad faith conduct. In addition, by considering the nature of the location under investigation and the number of citizens potentially impacted, together with other relevant factors, reviewing courts will be able to discern whether the risk of ensnaring the marginalized and vulnerable was so high in a given case that society would not tolerate that risk, notwithstanding the legitimate law enforcement interests at stake.

Neither A nor W were entrapped. The police in both cases were acting in the course of bona fide inquiries into the cell phone numbers in issue at the time they extended the respective opportunities to traffic in narcotics. Applying the new framework, there is no suggestion that the police were not motivated by genuine law enforcement purposes, nor is there any evidence of bad faith. Further, the police had a factually‑grounded basis for their investigations, having received information containing the names and phone number of alleged drug dealers. Finally, their inquiry was sufficiently tightly circumscribed. Drug trafficking is a serious crime and the number of individuals potentially impacted by the police conduct here is extremely low. The locations under investigation were phone numbers and, as a result, any concerns that racial profiling or other unconscious biases may have played a role in the investigations are highly attenuated. Notably, the investigatory technique did not involve accessing any of the information on either A's or W's cell phone. On this point, there is disagreement with the majority that a call to a potential dial‑a‑dope line engages the informational privacy interest protected by s. 8 of Canadian Charter of Rights and Freedoms and accordingly does demand the imposition of a standard as robust as the individualized reasonable suspicion standard developed in s. 8 jurisprudence. Dial‑a‑dope investigations do not involve search or seizure of the person's phone, or any of the information it contains. All that dial‑a‑dope investigations involve is a conversation between an undercover officer and the person on the other end of the line. The majority's acceptance that the police may phone an individual and engage them in potentially extensive conversation without first holding reasonable suspicion belies its contention that a typical dial‑a‑dope investigation engages the privacy interest that s. 8 of the Charter protects. The nature of the individual privacy interests at play here are limited to individuals' interest in being left alone by the state. It is difficult to imagine a less intrusive technique than those used in typical dial‑a‑dope cases like these ones. In sum, the police conduct here cannot be said to be conduct that society would find intolerable.

Cases Cited

By Karakatsanis, Brown and Martin JJ.

Applied: R. v. Mack , [1988] 2 S.C.R. 903; R. v. Barnes , [1991] 1 S.C.R. 449; referred to: R. v. Jewitt , [1985] 2 S.C.R. 128; Amato v. The Queen , [1982] 2 S.C.R. 418; R. v. Campbell , [1999] 1 S.C.R. 565; R. v. Nuttall , 2018 BCCA 479 , 368 C.C.C. (3d) 1; R. v. Bayat , 2011 ONCA 778 , 280 C.C.C. (3d) 36; R. v. Chehil , 2013 SCC 49 , [2013] 3 S.C.R. 220; R. v. MacKenzie , 2013 SCC 50 , [2013] 3 S.C.R. 250; R. v. Simpson (1993), 1993 3379 (ON CA) , 79 C.C.C. (3d) 482; R. v. Kang‑Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456; R. v. Faqi , 2010 ABPC 157 , 491 A.R. 194; R. v. Looseley , [2001] UKHL 53, [2001] 4 All E.R. 897 ; Beck v. State of Ohio , 85 S.Ct. 223 (1964); R. v. Swan , 2009 BCCA 142 , 244 C.C.C. (3d) 108; R. v. McMahon , 2018 SKCA 26 , 361 C.C.C. (3d) 429; R. v. Jir , 2010 BCCA 497 , 264 C.C.C. (3d) 64; R. v. Whyte , 2011 ONCA 24 , 266 C.C.C. (3d) 5, aff'd 2011 SCC 49 , [2011] 3 S.C.R. 364; R. v. Marakah , 2017 SCC 59 , [2017] 2 S.C.R. 608; R. v. Edwards , [1996] 1 S.C.R. 128; R. v. Wong , [1990] 3 S.C.R. 36; R. v. Dyment , [1988] 2 S.C.R. 417; R. v. Fearon , 2014 SCC 77 , [2014] 3 S.C.R. 621; R. v. Mills , 2019 SCC 22 , [2019] 2 S.C.R. 320; R. v. Wilson , [1990] 1 S.C.R. 1291; R. v. Jacques , [1996] 3 S.C.R. 312; United States v. Gooding , 695 F.2d 78 (1982); Florida v. J. L. , 529 U.S. 266 (2000); R. v. Olazo , 2012 BCCA 59 , 287 C.C.C. (3d) 379; R. v. Lal (1998), 1998 4393 (BC CA) , 130 C.C.C. (3d) 413; R. v. Townsend , [1997] O.J. No. 6516 (QL) ; R. v. Williams , 2010 ONSC 1698 ; R. v. Sawh , 2016 ONSC 2776 ; R. v. Pucci , 2018 ABCA 149 , 359 C.C.C. (3d) 343; R. v. Clarke , 2018 ONCJ 263 ; R. v. Li , 2019 BCCA 344 , 381 C.C.C. (3d) 363; R. v. Arriagada , [2008] O.J. No. 5791 (QL) ; R. v. Debot , [1989] 2 S.C.R. 1140; R. v. Saeed , 2016 SCC 24 , [2016] 1 S.C.R. 518; R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59; R. v. MacDonald , 2014 SCC 3 , [2014] 1 S.C.R. 37; R. v. Vezina , 2014 CMAC 3 , 461 N.R. 286; R. v. Murdock (2003), 2003 4306 (ON CA) , 176 C.C.C. (3d) 232; R. v. Ralph , 2014 ONCA 3 , 313 O.A.C. 384; R. v. Imoro , 2010 ONCA 122 , 251 C.C.C. (3d) 131, aff'd 2010 SCC 50 , [2010] 3 S.C.R. 62; R. v. Gould , 2016 ONSC 4069 ; R. v. Marino‑Montero , [2012] O.J. No. 1287 (QL) ; R. v. Izzard , [2012] O.J. No. 2516 (QL) ; R. v. Gladue , 2012 ABCA 143 , 285 C.C.C. (3d) 154; R. v. Stubbs , 2012 ONSC 1882 ; R. v. Gladue , 2011 ABQB 194 , 54 Alta. L.R. (5th) 84; R. v. Coutre , 2013 ABQB 258 , 557 A.R. 144.

By Moldaver J. (dissenting in part)

R. v. Mack , [1988] 2 S.C.R. 903; R. v. Barnes , [1991] 1 S.C.R. 449; R. v. Campbell , [1999] 1 S.C.R. 565; R. v. Ahluwalia (2000), 2000 17011 (ON CA) , 149 C.C.C. (3d) 193; R. v. Babos , 2014 SCC 16 , [2014] 1 S.C.R. 309; R. v. Le , 2016 BCCA 155 , 28 C.R. (7th) 187; R. v. Chehil , 2013 SCC 49 , [2013] 3 S.C.R. 220; R. v. Kang‑Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456; R. v. Henneh , 2017 ONSC 4835, [2017] O.J. No. 7173 (QL) ; R. v. MacKenzie , 2013 SCC 50 , [2013] 3 S.C.R. 250; R. v. A.M. , 2008 SCC 19 , [2008] 1 S.C.R. 569; R. v. Looseley , [2001] UKHL 53, [2001] 4 All E.R. 897 ; R. v. Dudhi , 2019 ONCA 665 , 147 O.R. (3d) 546; Peart v. Peel Regional Police Services Board (2006), 2006 37566 (ON CA) , 43 C.R. (6th) 175; R. v. Marakah , 2017 SCC 59 , [2017] 2 S.C.R. 608; R. v. Fearon , 2014 SCC 77 , [2014] 3 S.C.R. 621; R. v. Spencer , 2014 SCC 43 , [2014] 2 S.C.R. 212; R. v. Plant , [1993] 3 S.C.R. 281.

Statutes and Regulations Cited

• Canadian Charter of Rights and Freedoms, s. 8.
• Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 2(1) "traffic", 5(1).

Authors Cited

• Ashworth, Andrew. "What is Wrong with Entrapment?", [1999] Sing. J.L.S. 293.
• Bronitt, Simon. "Sang is Dead, Loosely Speaking", [2002] Sing. J.L.S. 374.
• Bronitt, Simon. "The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canada and Europe" (2004), 33 Comm. L. World Rev. 35.
• De Sa, Chris. "Entrapment: Clearly Misunderstood in the Dial‑a‑Dope Context" (2015), 62 Crim. L.Q. 200.
• MacFarlane, Bruce A., Robert J. Frater and Croft Michaelson. Drug Offences in Canada, 4th ed. Toronto: Thomson Reuters, 2019 (loose‑leaf updated December 2019, release 6).
• McLachlin, Beverley. "Courts, Transparency and Public Confidence — To the Better Administration of Justice" (2003), 8 Deakin L. Rev. 1.
• Murphy, Brendon, and John Anderson. "After the Serpent Beguiled Me: Entrapment and Sentencing in Australia and Canada" (2014), 39 Queen's L.J. 621.
• Murphy, Brendon, and John Anderson. "'Mates, Mr Big and the Unwary': Ongoing Supply and its Relationship to Entrapment" (2007), 19 C.I.C.J. 5.
• Ormerod, David, and Andrew Roberts. "The trouble with Teixeira : Developing a principled approach to entrapment" (2002), 6 Int'l J. Evidence & Proof 38.
• Penney, Steven. "Entrapment Minimalism: Shedding the 'No Reasonable Suspicion or Bona Fide Inquiry' Test" (2019), 44 Queen's L.J. 356.
• Penney, Steven. "Standards of Suspicion" (2018), 65 Crim. L.Q. 23.
• Quigley, Tim. Annotation to R. v. Sterling (2004), 2004 6675 (ON SC) , 23 C.R. (6th) 54.
• Roach, Kent. "Entrapment and Equality in Terrorism Prosecutions: A Comparative Examination of North American and European Approaches" (2011), 80 Miss. L.J. 1455.
• Sankoff, Peter, and Stéphane Perrault. "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123.
• Stuart, Don. Canadian Criminal Law: A Treatise, 7th ed. Toronto: Carswell, 2014.
• Tanovich, David M. "Rethinking the Bona Fides of Entrapment" (2011), 43 U.B.C. L. Rev. 417.

Procedural History

APPEAL by Javid Ahmad from a judgment of the Ontario Court of Appeal (Hourigan and Brown JJ.A. and Himel J. ( ad hoc )), 2018 ONCA 534 , 141 O.R. (3d) 241, 362 C.C.C. (3d) 36, [2018] O.J. No. 3091 (QL), 2018 CarswellOnt 9268 (WL Can.), affirming the conviction entered by Allen J., 2014 ONSC 3818 , [2014] O.J. No. 3152 (QL), 2014 CarswellOnt 9012 (WL Can.), and the dismissal of the application for a stay of proceedings, 2015 ONSC 652 , [2015] O.J. No. 1519 (QL), 2015 CarswellOnt 4286 (WL Can.). Appeal dismissed.

APPEAL by Landon Williams from a judgment of the Ontario Court of Appeal (Hourigan and Brown JJ.A. and Himel J. ( ad hoc )), 2018 ONCA 534 , 141 O.R. (3d) 241, 362 C.C.C. (3d) 36, [2018] O.J. No. 3091 (QL), 2018 CarswellOnt 9268 (WL Can.), setting aside the stay of proceedings entered by Trotter J., 2014 ONSC 2370 , 11 C.R. (7th) 110, [2014] O.J. No. 1840 (QL), 2014 CarswellOnt 5005 (WL Can.). Appeal allowed, Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting.

Counsel

• Michael W. Lacy and Bryan Badali, for the appellant Javid Ahmad.
• Owen Goddard and Janani Shanmuganathan, for the appellant Landon Williams.
• Chris Greenwood and David Quayat, for the respondent.
• Marilyn E. Sandford, Q.C., Michael Sobkin and Kate Oja, for the intervener the British Columbia Civil Liberties Association.
• Ingrid Grant and Daniel Goldbloom, for the intervener the Criminal Lawyers' Association of Ontario.
• Martine Sallaberry and Norm Lipinski, for the intervener the Canadian Association of Chiefs of Police.
• Alison M. Latimer, for the intervener the Independent Criminal Defence Advocacy Society.

Majority Reasons

The judgment of Abella, Karakatsanis, Brown, Martin and Kasirer JJ. was delivered by

Karakatsanis, Brown and Martin JJ. —

I. Introduction

[ 1 ] 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 the criminal law. While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.

[ 2 ] For that reason, this Court in R. v. Mack , [1988] 2 S.C.R. 903, sanctioned, but narrowly confined, the power of police to step beyond their normal investigative role and tempt people into committing criminal offences. Where they do so without reasonable suspicion, or where they go further and induce the commission of a criminal offence, they commit entrapment. Without a requirement of reasonable suspicion, the police could target individuals at random, thereby invading people's privacy, exposing them to temptation and generating crimes that would not otherwise have occurred. Such conduct threatens the rule of law, undermines society's sense of decency, justice and fair play, and amounts to an abuse of the legal process of such significance that, where it is shown to have occurred, a stay of proceedings is required.

[ 3 ] These appeals concern the application of this settled doctrine to investigations of suspected dial‑a‑dope operations, in which drug traffickers use cell phones to connect with their customers and sell them illicit drugs. Specifically, we are asked to determine when and how reasonable suspicion is established when an officer receives a tip or information that a phone number may be used for drug dealing.

[ 4 ] We say our jurisprudence affirms that police cannot offer a person who answers a cell phone the opportunity to commit an offence without having formed reasonable suspicion that the person using that phone, or that phone number, is engaged in criminal activity. Whether the police are targeting a person, place or phone number, the legal standard for entrapment is a uniform one, requiring reasonable suspicion in all cases where police provide an opportunity to commit a criminal offence. Reasonable suspicion is a familiar legal standard that provides courts with the necessary objective basis on which to determine whether the police have justified their actions. A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion.

[ 5 ] In each of these two appeals, the police received an unsubstantiated tip that a phone number was associated with drug dealing. An officer called the number and, after a brief conversation, requested drugs. In Javid Ahmad's case, the trial judge, Allen J., concluded that Ahmad was not entrapped because the police did not offer him an opportunity to traffic drugs until they had sufficiently corroborated the tip in the course of the conversation ( 2015 ONSC 652 ). In Landon Williams' case, Trotter J. found that Williams was entrapped because the police provided him an opportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking ( 2014 ONSC 2370 , 11 C.R. (7th) 110). The Court of Appeal dismissed Ahmad's appeal and allowed the Crown appeal in Williams' case ( 2018 ONCA 534 , 141 O.R. (3d) 241).

[ 6 ] Applying Mack , we agree with both trial judges. Ahmad was not entrapped, but Williams was. We would therefore dismiss Ahmad's appeal but allow Williams' appeal.

II. Background

A. Ahmad

[ 7 ] Detective Constable Michael Limsiaco received information from another officer that a person named "Romeo" was selling drugs using a specified phone number. D.C. Limsiaco called the number without investigating the reliability of the information or how the other officer had procured it. D.C. Limsiaco's understanding was that the other officer had received the tip from a confidential source.

[ 8 ] After a brief conversation, the officer asked for "2 soft", meaning two grams of powder cocaine. The man on the line subsequently agreed to meet to effect the sale. The officer went to the meeting place, called the number again, met the man who answered the phone, and exchanged $140 for two small plastic bags of cocaine. Police arrested and searched the man, later revealed to be Ahmad. On his person, police found an envelope with the handwritten word "Romeo" on it containing cash, the $140, the cell phone that had been used to set up the transaction, and two small bags of powder cocaine. In Ahmad's backpack, the police found a large quantity of cocaine and three envelopes containing cash.

[ 9 ] Allen J. concluded that Ahmad was not entrapped. Ahmad was convicted of one count of possession of cocaine for the purpose of trafficking, and two counts of possession of the proceeds of crime.

B. Williams

[ 10 ] Detective Constable Brooke Hewson, a member of the drug squad, received an information package from another officer about "Jay", who was alleged to be selling cocaine in a certain area in Toronto. The package identified "Jay" as Landon Williams and included a collection of information about him, including that, according to a tip, he was a "cocaine dealer" who worked in a certain area. The record discloses that the tip was from a confidential source of unknown reliability but not what the tip actually said, how Williams was connected to the name "Jay", or the currency of the information.

[ 11 ] D.C. Hewson did not ask about the reliability of the source or the currency of the information. She had been involved in Williams' arrest 20 months earlier for trafficking cocaine, although Williams ultimately pleaded guilty to simple possession. She had not known him to use the name "Jay".

[ 12 ] Detective Constable Tony Canepa was given some of this information and called the number. The man who answered the phone confirmed his name was "Jay". The officer said that he needed "80 . . . [h]ard", meaning $80 worth of crack cocaine, and the man replied that they should meet at a particular intersection. The officer met the man, later revealed to be Williams, and exchanged $80 for the crack cocaine. Eleven days later, he arranged a second transaction and made the same purchase. The next month, police arrested Williams.

[ 13 ] At the end of the Crown's case, Williams acknowledged that the evidence established his guilt on two counts of trafficking cocaine and two counts of possession of the proceeds of crime. Trotter J. found there was no reasonable suspicion before the officer provided the opportunity to commit a crime and entered a stay.

C. Court of Appeal Decision

[ 14 ] The Crown appeal from the stay in Williams' case and the defence appeal from the conviction in Ahmad's case were heard together. Hourigan J.A., writing for himself and Brown J.A., held that entrapment was not made out for either Ahmad or Williams. He concluded that where reasonable suspicion relates to the phone number itself, the police can provide opportunities to commit offences to a person associated with that phone number, even if they do not also have a reasonable suspicion about the person who answers the phone. Himel J. ( ad hoc ) concurred in the result, but disagreed with the majority's differentiation between reasonable suspicion over a phone number and reasonable suspicion over the individual who answers that phone.

III. The Entrapment Doctrine

A. The Principles of the Entrapment Doctrine in Mack and Barnes

[ 15 ] Over 30 years ago, this Court's decision in Mack settled the law of entrapment in Canada. It set out two alternative branches, either of which is sufficient to ground an accused's claim of entrapment and justify a stay of proceedings:

There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides . . . or, (b) having 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. [p. 959]

[ 16 ] At the most general level, the doctrine exists because "[i]t is a deeply ingrained value in our democratic system that the ends do not justify the means" ( Mack , at p. 938). Some of those means are unacceptable in a free society with strong notions of fairness, decency, and privacy. Although police must be afforded latitude, entrapment is a species of abuse of process because police involvement in the commission of a crime can bring the administration of justice into disrepute.

[ 17 ] Mack determined that the purpose and rationale of the entrapment doctrine lies in a court's inherent jurisdiction to prevent an abuse of its own processes. Entrapment is not a substantive defence leading to an acquittal, because in most cases the essential elements of the offence will be satisfied, even where entrapment occurred. Rather, the appropriate remedy is a stay of proceedings because "while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction" and a conviction would therefore bring the administration of justice into disrepute ( Mack , at p. 944 (emphasis deleted), citing R. v. Jewitt , [1985] 2 S.C.R. 128, at p. 148). Such a remedy also affirms the primacy of personal freedom: the state simply has no business unjustifiably intruding into individuals' private lives, randomly testing their virtue, and manufacturing crime ( Mack , at p. 941).

[ 18 ] Some crimes, however, are particularly difficult to investigate because they are "consensual" (such as drug trafficking), victimize those who are reluctant or unable to report them (such as child luring), or lead to such great harm that they must be actively prevented (such as terrorism) ( Mack , at p. 916; Amato v. The Queen , [1982] 2 S.C.R. 418, at p. 457, per Estey J., dissenting; A. Ashworth, "What is Wrong with Entrapment?", [1999] Sing. J.L.S. 293, at pp. 293-94). It is therefore in the public interest to allow police the flexibility to develop effective, proactive law‑enforcement measures to suppress crime.

[ 19 ] To reconcile these competing imperatives, the Court imposed a safeguard against opportunity-based entrapment. On the first branch in Mack , at issue in these appeals, police may present an opportunity to commit a crime only upon forming reasonable suspicion that either: (1) a specific person is engaged in criminal activity; or (2) people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry ( Mack , at pp. 956 and 959; confirmed in R. v. Barnes , [1991] 1 S.C.R. 449, at p. 463).

[ 20 ] The reasons in Mack make clear that a bona fide inquiry into a location is premised upon and tethered to reasonable suspicion. An investigation is " bona fide " where the police have a reasonable suspicion over a location or area, as well as a genuine purpose of investigating and repressing crime. A bona fide investigation is not a separate and freestanding way for police to entrap an individual, but a means of expressing the threshold of reasonable suspicion in a location. The offer of an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficient precision, or a combination of both.

[ 21 ] The Court affirmed these principles in Barnes . There, the Court found the police had engaged in a bona fide inquiry by providing people within an area of the Granville Mall in Vancouver the opportunity to sell drugs. Their reasonable suspicion, the Court held, was grounded on objective extrinsic evidence that showed significant drug dealing activity in the area ( Barnes , at pp. 460-62). This provided an explanation, which a court could meaningfully review, for why people were being targeted in that area.

[ 22 ] This framework balances and reconciles important public interests. The rule of law, and the need to protect privacy interests and personal freedom from state overreach are balanced against the state's legitimate interest in investigating and prosecuting crime by permitting but also constraining entrapment techniques ( Mack , at pp. 941-42).

[ 23 ] We see no reason to alter this carefully calibrated balance struck in Mack and affirmed in Barnes . The entrapment framework has proved workable for decades in a variety of contexts, including drug trafficking ( R. v. Campbell , [1999] 1 S.C.R. 565, at para. 21 ), terrorism ( R. v. Nuttall , 2018 BCCA 479 , 368 C.C.C. (3d) 1, at paras. 417-43 ), and child luring ( R. v. Bayat , 2011 ONCA 778 , 280 C.C.C. (3d) 36, at paras. 15-23 ). It has stood the test of time, furnishing a principled, stable and generally applicable doctrine that is fully capable of adapting to a variety of circumstances and responding to the evolution of crime and police tactics. No principled reason supports departing from it.

B. Objective Reasonable Suspicion Ensures Judicial Oversight Over Police Conduct

[ 24 ] In every context, the reasonable suspicion standard ensures courts can conduct meaningful judicial review of what the police knew at the time the opportunity was provided ( R. v. Chehil , 2013 SCC 49 , [2013] 3 S.C.R. 220, at paras. 26 and 58 ; R. v. MacKenzie , 2013 SCC 50 , [2013] 3 S.C.R. 250, at para. 41 ). This standard requires the police to disclose the basis for their belief and to show that they had legitimate reasons related to criminality for targeting an individual or the people associated with a location (K. Roach, "Entrapment and Equality in Terrorism Prosecutions: A Comparative Examination of North American and European Approaches" (2011), 80 Miss. L.J. 1455, at pp. 1472-73; Ashworth, at pp. 304-5). An objective standard like reasonable suspicion allows for exacting curial scrutiny of police conduct for conformance to the Canadian Charter of Rights and Freedoms and society's sense of decency, justice, and fair play because it requires objectively discernible facts. As is the case with warrantless searches, "the trial judge [must be] . . . in a position to ascertain [these objective facts], and not bound by the personal conclusions of the officer who conducted the [investigation] " (P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123, at p. 126 (emphasis added) ). This is essential to upholding the rule of law and preventing the state from arbitrarily infringing individuals' privacy interests and personal freedoms ( Chehil , at para. 45 ).

[ 25 ] Doherty J.A., in R. v. Simpson (1993), 1993 3379 (ON CA) , 79 C.C.C. (3d) 482 (Ont. C.A.), at pp. 502-3, makes the point compellingly: a reasonable suspicion standard is necessary where there is the fundamental need to balance society's interest in the detection and punishment of crime with its interest in maintaining individual freedoms. A careful balancing of interests is as relevant in entrapment as it is in warrantless searches and detention. In each case, the reasonable suspicion standard is uniquely "designed to avoid indiscriminate and discriminatory" police conduct ( Chehil , at para. 30 ; see also paras. 3, 26 and 47; R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456, at paras. 75‑77 and 165 ; Simpson , at p. 502). This is particularly critical in cases of entrapment, since entrapment is a "breeding ground for racial profiling" (D. M. Tanovich, "Rethinking the Bona Fides of Entrapment" (2011), 43 U.B.C.L. Rev. 417, at p. 432), and has "a disproportionate impact on poor and racialized communities" (pp. 417‑18). Courts must be able to assess the extent to which the police, in seeking to form reasonable suspicion over a person or a place, rely upon overtly discriminatory or stereotypical thinking, or upon "intuition" or "hunches" that easily disguise unconscious racism and stereotyping (T. Quigley, Annotation to R. v. Sterling (2004), 2004 6675 (ON SC) , 23 C.R. (6th) 54, at p. 55; R. v. Faqi , 2010 ABPC 157 , 491 A.R. 194, at para. 14 ; Tanovich, at pp. 437-38; MacKenzie , at paras. 64-65 ).

[ 26 ] Requiring reasonable suspicion before tempting individuals into committing crimes also reflects Canadian law's cautious approach to the expansion of police powers. As a significant instance of that approach, our law does not consider whether the targeted accused was predisposed to commit the crime ( Mack , at pp. 924 and 951-56). Allowing objectively improper police conduct to be justified by reference to the predisposition of the accused would "permit unequal treatment" ( Mack , at p. 955), and risks imprisoning people even when their fundamental rights and procedural guarantees have been disregarded. There is a "fundamental inequality inherent in an approach that measures the permissibility of entrapment by reference to the predisposition of the accused" ( Mack , at p. 955).

[ 27 ] People are not protected against random virtue testing if we assume that entrapment occurs only when virtuous people would be tempted to commit crimes. The opportunity-based branch of the Mack test therefore establishes that police cannot subject anyone to random virtue testing — virtuous or non-virtuous, predisposed or non-predisposed — without reasonable suspicion. Many commentators support the test established in Mack for this very reason — that is, because its objective threshold protects everyone from random testing (Ashworth, at p. 305; D. Ormerod and A. Roberts, "The trouble with Teixeira : Developing a principled approach to entrapment" (2002), 6 Int'l J. of Evidence & Proof 38, at pp. 46-48; S. Bronitt, "The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canada and Europe" (2004), 33 Comm. L. World Rev. 35, at p. 78; Roach, at p. 1462; D. Stuart, Canadian Criminal Law: A Treatise (7th ed. 2014), at p. 653).

[ 28 ] Providing individuals the opportunity to commit offences without the foundation of a reasonable suspicion also unacceptably increases the likelihood that people will commit crimes when they otherwise would not have. The risk is at its highest when the person given the opportunity is comparatively vulnerable or otherwise marginalized. Random virtue testing therefore violates the principle that it is wrong for the police to manufacture crime because it "prey[s] on the weakness of human nature" to entice individuals into offending ( R. v. Looseley , [2001] UKHL 53, [2001] 4 All E.R. 897, at para. 58 , per Lord Hoffmann). Marginalized people, with the limited resources they possess, will rarely, if ever, be able to meet the high burden of proving bad faith. There will rarely be evidence of intentional racial profiling or targeting of the vulnerable. Conversely, the test in Mack — grounded in reasonable suspicion — is attainable for everyone, designed as it is to accommodate the "qualities of humanness which all of us share" ( Mack , at p. 940). It seeks to protect the justice system and preserve the rule of law by ensuring that all individuals, predisposed or not, are protected from improper police conduct ( Mack , at p. 961).

[ 29 ] A standard of "bad faith" police conduct in this branch of the entrapment doctrine is no substitute for the objective standard of reasonable suspicion, which is reviewable by an independent assessor. A test of "bad faith" cedes primacy to the police's own assertions. Reasonable suspicion insists on an objective assessment of the information the police actually had. Reasonable suspicion thus shifts the protection of the public against unreasonable intrusions from the shadows of police discretion to the light of curial scrutiny. As described in the context of warrantless arrests by the Supreme Court of the United States in Beck v. State of Ohio , 85 S.Ct. 223 (1964), at p. 229:

We may assume that the officers acted in good faith in arresting the petitioner. But "good faith on the part of the arresting officers is not enough". If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects," only in the discretion of the police. [Citation omitted.]

[ 30 ] Further, and unlike reasonable suspicion, a standard of bad faith fails to give meaningful guidance to police officers called upon to determine whether they can offer an opportunity to commit a crime. Reasonable suspicion is an ex ante standard that has stood the test of time, is "readily applicable in practice", and is familiar and "meaningful to the police and trial judges" ( Kang‑Brown , at para. 164 , per Deschamps J., dissenting but not on this point). It fosters in police officers a sense of the importance of obtaining objective evidence of criminal activity before offering an opportunity to commit a crime, and of being alive to indicators that suggest that their intuitions or hunches may be wrong ( Chehil , at paras. 33-34 ). And it compels police to disclose objective evidence that is amenable to exacting review, precluding them from relying on peremptory assertions of suspicion.

[ 31 ] Any lower bar — and certainly any bar that would allow the police to respond to bare tips by immediately offering an opportunity to commit a crime — would effectively be no bar at all.

[ 32 ] That this is so is made plain by asking the following question: if a name and number were sufficient to allow police to intrude on protected interests, what less could possibly be required? The police need at least a number to make the phone call. Such a low bar would do nothing to protect people from random virtue testing: being called by police and invited to commit an offence based on malice, rumour or gossip. The reasonably informed observer would be dismayed to learn that police are permitted to act on this information in this way simply by virtue of having received it. Just as the hunch or "mere suspicion" of one police officer cannot become something more simply because it was shared with other officers ( R. v. Swan , 2009 BCCA 142 , 244 C.C.C. (3d) 108, at para. 23 ), a source's hunch does not transform into something more once placed into the hands of the police ( R. v. McMahon , 2018 SKCA 26 , 361 C.C.C. (3d) 429, at paras. 60 and 62 ; R. v. Jir , 2010 BCCA 497 , 264 C.C.C. (3d) 64, at para. 46 , per Groberman J.A., concurring; R. v. Whyte , 2011 ONCA 24 , 266 C.C.C. (3d) 5, at para. 17 , aff'd 2011 SCC 49 , [2011] 3 S.C.R. 364). We see no basis — in this Court's jurisprudence or elsewhere — for abandoning the reasonable suspicion standard and granting police unrestricted licence to offer people the opportunity to commit crimes, free from independent and meaningful judicial oversight.

IV. Issues

[ 33 ] Several issues arise when entrapment is examined in the dial‑a‑dope context:

A. Can a phone number — a virtual place — qualify as a location for the purposes of entrapment?

B. What circumstances can give rise to reasonable suspicion in the dial‑a‑dope context?

C. How should courts review the conversation between police and the accused in deciding whether reasonable suspicion has been established and when the opportunity to offend was offered?

D. What constitutes provision of an opportunity to traffic in drugs during a phone call?

The answers to these questions must be determined in light of the purposes of the doctrine of entrapment.

V. Analysis

A. Can a Phone Number Qualify as a "Place" Over Which Police May Form Reasonable Suspicion?

[ 34 ] These appeals require us to consider how the reasonable suspicion standard applies when police are investigating a phone number, or another virtual means of communication between people, like a message board on a website. The parties agree that a phone number can qualify as a "place" for the purposes of the entrapment doctrine. The intervener the Independent Criminal Defence Advocacy Society disagrees, submitting that there is an enhanced privacy interest in virtual places as compared to physical places. Alternatively, it says a multi-factored analysis should inform the consideration of whether a place has been adequately defined. The British Columbia Civil Liberties Association adds that it is concerned that places, both physical and virtual, may be defined too broadly to allow the entrapment doctrine to be sufficiently protective.

(The majority's analysis continues through paragraphs 35–85, addressing the nature of virtual places, the reasonable suspicion standard in the dial-a-dope context, the review of undercover conversations, and the application of those principles to the facts of Ahmad and Williams.)

VI. Application

Ahmad

[ 73 ] D.C. Limsiaco provided an opportunity for Ahmad to commit drug trafficking when he asked for "2 soft" in response to the question, "What do you need?" In context, given the meaning of "2 soft", this amounted to asking Ahmad whether he would sell him two grams of cocaine. Since the CDSA allows trafficking to be committed by a simple offer to sell drugs, saying "yes" to the officer's question would have constituted trafficking. Of course, asking whether Ahmad could "help [him] out", as the officer did earlier, was not an opportunity to traffic. Responding "yes" to that question would not have been trafficking, because the inquiry had not been narrowed to a particular substance listed in a schedule of the CDSA .

[ 74 ] Given the point at which the opportunity was provided, the constellation of factors that existed at that time consisted of the tip and the nature of Ahmad's responses to D.C. Limsiaco's questions.

[ 75 ] Allen J. concluded that reasonable suspicion crystallized when Ahmad asked D.C. Limsiaco, "[w]hat do you need?" By that point, the officer had asked Ahmad if he went by the name "Romeo," which he did not deny. When the officer asked Ahmad, "[Y]ou can help me out?", Ahmad responded positively to this use of language particular to the drug subculture: "What do you need?" Having connected the tip to the person on the phone, the aspect of the tip that asserted illegality was corroborated by Ahmad's understanding of drug-trafficking slang and willingness to engage in it. Allen J. found that, in this context, these markers of reliability together sufficiently corroborated the initial tip to give rise to an objective possibility that Ahmad was involved in drug trafficking before the officer asked for "2 soft".

[ 76 ] While this is an extremely close call, we are satisfied that Allen J. did not err in her conclusion that the police had a reasonable suspicion of drug trafficking before providing the opportunity to commit an offence. We acknowledge that the answer "[w]hat do you need?" to the question "you can help me out?" can admit of innocent responses, but the reasonable suspicion standard did not require the police to direct the conversation to rule out innocent explanations for Ahmad's positive response. Nor can the question and answer be assessed in isolation. It came after the officer's references to both Romeo and the police's concocted "drop name" Matt, and after Ahmad evinced no surprise and did not deny he was Romeo or ask who Matt was. Significantly, he betrayed no surprise that a stranger, on another person's recommendation, would be reaching out to him for "help"; in fact, he did the opposite, continuing to engage the caller to ascertain what he wanted. The officer was entitled to rely on what he knew of illicit drug transactions and all of the circumstances, as well as the response "[w]hat do you need?" in response to a request that he "help . . . out" a stranger, in forming reasonable suspicion that the individual with whom he was speaking was engaged in drug trafficking. Perhaps no one of these factors, on its own, was sufficient to establish reasonable suspicion. But we share Allen J.'s conclusion that, taken together, they disclosed a reasonable possibility that this individual was involved in drug trafficking.

Williams

[ 77 ] In Williams' case, police received a tip that "Jay" was selling drugs using a phone number. Police prepared a package relating the phone number and the name "Jay" to Williams, who had previously been arrested for drug trafficking. The package included information about Williams, including an address at which he had allegedly been trafficking drugs, a description of his physical appearance, a note that he was a "cocaine dealer" who worked in a certain area, and a home address.

[ 78 ] Having been provided the phone number, the name "Jay", the nature of the drug, and a picture of Williams, D.C. Canepa called the number and had the following conversation:

Male: Hello.

Canepa: Jay?

Male: Yeah.

Canepa: You around?

Male: Who is this?

Canepa: It's Vinny.

Male: Vinny who?

Canepa: Vinny. Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80.

Male: Okay. You have to come to me.

Canepa: Okay. Where?

Male: Queen and Dufferin.

Canepa: Okay. It'll take me a few because I'm at Yonge & Bloor.

Male: Okay, hurry up.

Canepa: I'll call you when I get there.

Male: Okay. What you want, soft or hard.

Canepa: Hard. Hard buddy.

Male: Okay.

( Williams stay decision, at para. 9)

[ 79 ] As soon as the person who answered confirmed that he was Jay, D.C. Canepa provided an opportunity to traffic drugs when he presented Williams with the specific request to sell him "80", slang for a dollar amount of cocaine. Once Williams responded "Okay", the offence of trafficking by offer was complete.

[ 80 ] Unlike in Ahmad's case, there was nothing in Williams' responses — before D.C. Canepa provided the opportunity to traffic — to suggest that the phone number was being used to sell drugs. D.C. Canepa did not wait to see how Williams would respond to an investigative question that could have corroborated that Williams was engaged in criminal activity prior to providing the opportunity to commit the crime. This means Williams did not respond positively to slang particular to the drug subculture until after the opportunity had been provided. That one aspect of a tip has been corroborated — here, "Jay's" name — does not allow that tip to ground a reasonable suspicion. The corroboration of the name does not strengthen the reliability of the tip "in its assertion of illegality" ( J. L. , at p. 272).

[ 81 ] The Crown relies on the police brief that identified "Jay" as Williams and included his home address, an address where he trafficked drugs, and his criminal record. However, there was no evidence of the basis upon which the officer preparing the brief made the connection between Williams and the name "Jay". Trotter J. reasoned that he could not conclude that the name "Jay" was sufficiently linked to Williams, and therefore he could not rely on the information in that package as part of a constellation of factors supporting reasonable suspicion. Given the lack of evidence on the reliability of the source or the information provided, Trotter J. concluded that neither the officers nor he could determine the reliability or currency of the information.

[ 82 ] We agree. The court can consider all the objective factors known to members of the investigative team at the relevant time in determining whether the decision was made with reasonable suspicion. Obviously, police officers must be able to rely on the investigative work of other officers and it is not necessary for the particular officer making the call to personally have all the information that supports reasonable suspicion (see, e.g., Debot , at p. 1166). Police work often relies on multiple officers conducting individual parts of an investigation. In the context of dial-a-dope investigations, several lower courts have also taken this approach (see R. v. Gladue , 2011 ABQB 194 , 54 Alta. L.R. (5th) 84, at para. 60 , aff'd 2012 ABCA 143 , 285 C.C.C. (3d) 154; R. v. Coutre , 2013 ABQB 258 , 557 A.R. 144, at para. 14 ; Sawh , at para. 112 ).

[ 83 ] However, the facts relied upon to ground reasonable suspicion must be put before the court for independent review. As we have emphasized, the primary purpose of the reasonable suspicion standard is to allow for meaningful judicial review of police conduct (see paras. 24 and 45-46, above). Requiring the police to disclose their reasons for targeting an accused does not alter the onus on the accused to prove entrapment; it merely recognizes that only the police can point to the circumstances known to them that give rise to reasonable suspicion. To free the police from the requirement of having to provide objectively reviewable evidence — in this case, evidence of the connection between "Jay" and Williams — would be to engage in the very same "good faith" reasoning that has been soundly rejected in the reasonable suspicion jurisprudence.

[ 84 ] In this case, police appear to have proceeded on the assumption that the tip — that Jay was trafficking in cocaine using the phone number provided — was about Williams. But there was no evidence to establish that the source connected Jay with Williams. Nor did the evidence establish any other basis upon which to conclude they were the same person. Indeed, the officer who had previously dealt with Williams said she had not known him to use the name "Jay". While the report itself asserted a connection between the two, there was no evidence to show whether such a connection was warranted or reasonable. In the absence of such evidence, this Court cannot simply presume that a bald tip that Jay was using a particular phone number to traffic in cocaine was reliable and current. Confirmation that the speaker was Jay confirmed only that aspect of the tip — that Jay was using that phone. There was no confirmation that he was using the phone to sell cocaine until after the police officer provided him with the opportunity to do so. The only conclusion that can be safely drawn from the record as it stands is the one Trotter J. drew: the police had no more than a bare tip that someone using a particular phone number was selling drugs and this did not ground reasonable suspicion.

VII. Conclusion

[ 85 ] For these reasons, we would dismiss Ahmad's appeal and allow Williams' appeal, setting aside the convictions entered by the Court of Appeal and reinstating the stay of proceedings entered by Trotter J.

Dissenting Reasons

The reasons of Wagner C.J. and Moldaver, Côté and Rowe JJ. were delivered by

Moldaver J. ( dissenting in part ) —

I. Overview

[ 86 ] The criminal landscape has changed dramatically since the seminal entrapment cases of R. v. Mack , [1988] 2 S.C.R. 903, and R. v. Barnes , [1991] 1 S.C.R. 449, were decided. The days when drug dealers, particularly low‑level dealers, would associate themselves with a fixed location are largely gone. Now, these dealers regularly associate themselves with a phone number and run their businesses through so‑called "dial‑a‑dope" operations. The proliferation of mobile phones and other forms of instant communication has allowed modern day drug dealers to traffic from any number of different locations as a means of evading police detection. As these appeals demonstrate, attempting to apply the doctrine of entrapment as formulated in Mack and Barnes to present‑day dial‑a‑dope operations has revealed both doctrinal and policy concerns that this Court, in my view, should address.

[ 87 ] The doctrine of entrapment, as a species of abuse of process, "draws on the notion that the state is limited in the way it may deal with its citizens" ( Mack , at p. 939). The state may not engage in conduct that "violates our notions of 'fair play' and 'decency' and which shows blatant disregard for the qualities of humanness which all of us share" (p. 940). A claim that the police entrapped the individual before the court is " a very serious allegation against the state", and a finding of entrapment is accordingly reserved for the "clearest of cases" of intolerable state conduct (pp. 976‑77).

[ 88 ] In Canadian law, entrapment has two branches. Under the first branch, entrapment is made out where the police offer an individual the opportunity to commit an offence without reasonably suspecting that the individual is already engaged in that type of criminal activity (the "individualized suspicion prong"), or without acting pursuant to a bona fide inquiry (the " bona fide inquiry prong"). Under the second branch, entrapment is made out where the police go beyond providing an individual with the opportunity to commit an offence and instead induce the commission of the offence.

[ 89 ] The dial‑a‑dope jurisprudence has revealed problems with how the first branch of entrapment is currently formulated. Attempting to apply the individualized suspicion prong in dial‑a‑dope cases has resulted in some courts closely parsing undercover calls to determine whether an individual was entrapped. This parsing approach has been justifiably criticized as both unprincipled and impractical. Further, as I will explain, the bona fide inquiry prong has been rendered incoherent by judicial development of the reasonable suspicion standard in the context of s. 8 of the Canadian Charter of Rights and Freedoms. In the end, both prongs have failed to remain faithful to the balance this Court struck in Mack and Barnes between protecting an individual's legitimate interest in being left alone by the state and effective law enforcement. To maintain an appropriate balance between these competing values, the Court in Mack and Barnes recognized that the police must be given "substantial leeway" in investigating crimes like drug trafficking, which may be difficult to detect through traditional means ( Mack , at pp. 977‑78). In sum, the fundamental balance struck in those cases was aimed at ensuring that law enforcement techniques that society would not view as intolerable, and which may be necessary to combat certain types of crime, are not labelled as entrapment.

[ 90 ] I am of the view that the bona fide inquiry prong must be revised to preserve this fundamental balance, to rectify doctrinal issues within the prong itself, and to address policy concerns that have arisen with respect to the prong's application. This revision will ensure that only the clearest of cases of intolerable state conduct are captured by the doctrine of entrapment by refocusing the doctrine on its principled origin: abuse of process. Moving forward, a bona fide inquiry should be defined as a factually‑grounded investigation into a tightly circumscribed area, whether physical or virtual, that is motivated by genuine law enforcement purposes.

[ 91 ] In the end, while I would adopt a different analytical approach, I agree with the Court of Appeal that the police were engaged in bona fide inquiries when they offered each of the appellants an opportunity to commit the offence of drug trafficking. Accordingly, I would dismiss both of the appeals.

(The dissenting reasons continue through paragraphs 92–188, setting out the background facts and proceedings in greater detail, analyzing the deficiencies in the individualized suspicion prong and the bona fide inquiry prong, proposing a revised framework, and applying it to both appellants.)

II. Background Facts and Proceedings in the Ontario Superior Court of Justice

A. Mr. Williams's Case

(1) Facts

[ 92 ] The investigation that led to the charges against Mr. Williams began when Police Constable Fitkin of the Toronto Police Service ("TPS") received information from a confidential source that someone who went by the name of "Jay" was selling drugs in the Queen and Church area of downtown Toronto. On January 31, 2011, P.C. Fitkin emailed Detective Constable Hewson asking her to place a "cold call" in relation to the information he had received. He attached a Person of Interest package that he had prepared, which included a phone number and identified Mr. Williams as "Jay", though it is not clear how the link between Mr. Williams and "Jay" was made. The Person of Interest package also included biographical information about Mr. Williams, and stated that he dealt cocaine in the 389 Church Street and Yonge‑Dundas areas of Toronto. It also stated that he was arrested for trafficking in 2009 and pleaded guilty to possession of cocaine in early 2010. In the body of the email, P.C. Fitkin indicated that he had not been able to get a "drop name" from his source yet, but that he would continue to try.

[ 93 ] D.C. Hewson had some familiarity with Mr. Williams, having been involved in his 2009 arrest. However, she did not ask P.C. Fitkin about the reliability of his source, the currency of the information, or how the link was made between Mr. Williams and "Jay". She did run the phone number provided through TPS databases, but derived no information from this search. P.C. Fitkin was not called as a witness and was therefore not able to shed light on any of these unknowns.

[ 94 ] On February 11, 2011, the Drug Squad held a briefing about the case. They determined that D.C. Canepa would make a cold call to the number provided for Mr. Williams. D.C. Canepa was provided with some basic information, including the name "Jay", the phone number provided for Mr. Williams, and the nature of the drug. He did not know whether any checks had been performed to verify the information because, as he explained in his testimony, he preferred to know as little as possible.

[ 95 ] That evening, D.C. Canepa made the cold call and the following conversation took place:

Male: Hello.

Canepa: Jay?

Male: Yeah.

Canepa: You around?

Male: Who is this?

Canepa: It's Vinny.

Male: Vinny who?

Canepa: Vinny. Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80.

Male: Okay. You have to come to me.

Canepa: Okay. Where?

Male: Queen and Dufferin.

Canepa: Okay. It'll take me a few because I'm at Yonge & Bloor.

Male: Okay, hurry up.

Canepa: I'll call you when I get there.

Male: Okay. What you want, soft or hard.

Canepa: Hard. Hard buddy.

Male: Okay.

[ 96 ] A few more phone calls were made to arrange the transaction. Later that night, the men met and D.C. Canepa purchased $80 of crack cocaine from Mr. Williams. On February 22, 2011, D.C. Canepa arranged another $80 transaction. The Drug Squad tried to arrange a third transaction, but Mr. Williams did not respond to D.C. Canepa's calls. Accordingly, they decided to conclude the investigation and arrest Mr. Williams based on the previous transactions.

[ 97 ] A few weeks later, a TPS officer who was aware that the Drug Squad was attempting to locate Mr. Williams saw him walking down the street. The officer arrested Mr. Williams and searched his person. The search uncovered a handgun, a box of ammunition, a small amount of marijuana, and two cellphones.

[ 98 ] Mr. Williams was subsequently charged with two counts of trafficking in cocaine, two counts of possession of the proceeds of crime, and various firearm, ammunition, and breach of recognizance offences. The charges for trafficking and possession of the proceeds of crime stemmed from the drug transactions with D.C. Canepa, while the other offences, which were charged on a separate indictment, stemmed from the search subsequent to Mr. Williams's arrest.

(2) Proceedings in the Ontario Superior Court of Justice (Trotter J.)

[ 99 ] In the proceedings on the first indictment, Mr. Williams admitted that the evidence established his guilt for trafficking and possession of the proceeds of crime. He argued, however, that the charges should be stayed on the basis of entrapment. The trial judge agreed, finding that there was no reason to suspect that Mr. Williams was involved in selling drugs when D.C. Canepa gave him the opportunity to traffic in cocaine. He held that the words "I need 80", referring to $80 of cocaine, constituted an opportunity to traffic because it involved a request for a specific amount of a specific type of drug ( 2014 ONSC 2370 , 11 C.R. (7th) 110, at para. 9 ("Williams First Stay Application reasons")). Further, the trial judge was of the view that the police, having only unconfirmed information obtained from a confidential source, did not have reasonable suspicion that Mr. Williams was dealing drugs.

[ 100 ] Mr. Williams also argued that the firearm, ammunition, and breach of recognizance charges should be stayed because they were "inextricably linked" to the conduct that formed the basis for the finding of entrapment ( 2014 ONSC 3005 , 11 C.R. (7th) 124, at para. 6 ("Williams Second Stay Application reasons")). The trial judge disagreed and entered convictions on those charges. In his view, Mr. Williams was acting independently when he decided, a few weeks after the last transaction with D.C. Canepa, to walk around armed with a gun and ammunition — the police did nothing to encourage or facilitate that decision.

B. Mr. Ahmad's Case

(1) Facts

[ 101 ] On April 19, 2012, D.C. Wallace provided D.C. Limsiaco with a phone number and told him that, if he called that number, a person who went by the name of "Romeo" would sell him drugs. That information was not investigated any further before D.C. Limsiaco called the number and had the following conversation with the person who answered:

Male: Hello

Officer: Hey, It's Mike, Matt said I can give you a call, this is Romeo?

Male: He did, did he?

Officer: Yeah, said you can help me out?

Male: What do you need?

Officer: 2 soft

Male: Hold on, I'll get back to you.

Officer: Alright.

[ 102 ] The male then called D.C. Limsiaco back later the same day, and they had the following conversation:

Officer: Hello

Male: So what do you need again?

Officer: 2 soft, where you at?

Male: Can meet you at Yorkdale.

Officer: Sure, $160 good an hour?

Male: $140, hours good, go by theatres

Officer: Cool

[ 103 ] The male who answered the phone, later found to have been Mr. Ahmad, went along with the conversation without hesitation and without questioning the identity of "Matt", a made up name. At no point did Mr. Ahmad question being called "Romeo", though he neither confirmed nor denied that was his name. He also did not question the meaning of "2 soft", which was a coded reference to two grams of powder cocaine.

[ 104 ] Later that day, according to the police officers who testified at Mr. Ahmad's trial, D.C. Limsiaco met Mr. Ahmad at the Yorkdale Shopping Centre. D.C. Limsiaco completed the undercover buy just outside the mall, where he gave Mr. Ahmad $140 of buy money in exchange for two small bags of cocaine. The Drug Squad team then arrested Mr. Ahmad. He was subsequently charged with trafficking cocaine, possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime. The Crown withdrew the trafficking charge at the preliminary hearing.

(2) Proceedings in the Ontario Superior Court of Justice (Allen J.)

[ 105 ] Mr. Ahmad proceeded to trial, where he pleaded not guilty to the possession charges. He testified that on the day of his arrest, he met his friend "Mikey" at the mall, and suggested that it was Mikey, not him, who had sold D.C. Limsiaco the drugs. However, the trial judge rejected Mr. Ahmad's evidence and ultimately found him guilty of one count of possession of cocaine for the purpose of trafficking and two counts of possession of the proceeds of crime ( 2014 ONSC 3818 ).

[ 106 ] After the convictions were entered, Mr. Ahmad applied for a stay of proceedings on the basis of entrapment. The trial judge dismissed the application ( 2015 ONSC 652 ). She acknowledged that the officer did not have reason to suspect the person on the other end of the line was trafficking in drugs before placing the call. However, in her view, D.C. Limsiaco had built reasonable suspicion that "Romeo" was trafficking in drugs during the call before offering him an opportunity to commit an offence by requesting a specific quantity of powder cocaine. Accordingly, the trial judge held that Mr. Ahmad had not been entrapped.

III. Appeals to the Ontario Court of Appeal

[ 107 ] The appeals in Mr. Williams's and Mr. Ahmad's cases were heard together. The Crown appealed from the stay of Mr. Williams's convictions for trafficking and possession of the proceeds of crime. Mr. Williams cross‑appealed the dismissal of his entrapment application with respect to the firearm, ammunition, and breach of recognizance convictions. For his part, Mr. Ahmad appealed from, among other things, the dismissal of his stay application.

[ 108 ] The Court of Appeal allowed the Crown's appeal in Mr. Williams's case, dismissed Mr. Williams's cross‑appeal, and dismissed Mr. Ahmad's appeal ( 2018 ONCA 534 , 141 O.R. (3d) 241). The court was unanimous in holding that there was no entrapment in either case. It divided, however, in its reasons.

[ 109 ] Hourigan J.A., writing for the majority, reasoned that there was no entrapment because the police in both cases were acting pursuant to a bona fide inquiry. Specifically, the police reasonably suspected that each of the phone numbers was being used in a dial‑a‑dope scheme. While Mack and Barnes contemplated the offering of opportunities at physical spaces over which the police held reasonable suspicion, the majority was of the view that the law must keep up with the modern realities of crime and analogized the specific virtual space of a suspected dial‑a‑dope line to a specific physical space. The majority concluded that, on the facts of both Mr. Williams's and Mr. Ahmad's respective cases, the police had the necessary reasonable suspicion before they extended an opportunity to traffic.

[ 110 ] Himel J. concurred in the result but took a different analytical approach. In her view, the police reasonably suspected both Mr. Williams and Mr. Ahmad as individuals at the time they extended the respective opportunities. There was accordingly no need to resort to the bona fide inquiry prong.

IV. Analysis (Dissent)

A. Entrapment in Canadian Law

[ 111 ] These appeals call upon this Court to clarify the proper scope and application of the first branch of entrapment.

[ 112 ] The doctrine of entrapment is "simply an application of the abuse of process doctrine" ( R. v. Campbell , [1999] 1 S.C.R. 565, at para. 21 ; see also Mack , at pp. 938‑42). It shields individuals from state conduct that society regards as intolerable — conduct that "violates our notions of 'fair play' and 'decency' and which shows blatant disregard for the qualities of humanness which all of us share" ( Mack , at p. 940). In essence, the doctrine of entrapment sends the message from the court to the state that, notwithstanding the state's ability to prove an accused's guilt beyond a reasonable doubt, the court will not allow the state to avail itself of the judicial process because the state's conduct in bringing the accused before the court was intolerable ( Mack , at p. 942; R. v. Ahluwalia (2000), 2000 17011 (ON CA) , 149 C.C.C. (3d) 193 (Ont. C.A.), at para. 30 ).

[ 113 ] This high threshold justifies restricting the remedy for entrapment to a stay of proceedings, which "permanently halts the prosecution of an accused" and is "the most drastic remedy a criminal court can order" ( R. v. Babos , 2014 SCC 16 , [2014] 1 S.C.R. 309, at para. 30 ). As Doherty J.A. recognized in Ahluwalia , the doctrine of entrapment is not "a vague licence to stay proceedings whenever police conduct offends a particular judge's sensitivities or his or her perception of how the police should go about doing their business" (para. 31). Indeed, entrapment should only be recognized in the "clearest of cases" ( Mack , at p. 977).

[ 114 ] The doctrine of entrapment reflects the notions that the police should be limited to investigating and preventing — as opposed to creating — crime, and that the state should not randomly test the virtue of its citizens. More specifically, the Court in Mack articulated several rationales for recognizing the doctrine of entrapment in Canadian law, including that: (1) there must be limits on the state's power to intrude on individuals' personal lives and engage in random virtue testing; (2) "entrapment techniques may result in the commission of crimes by people who would not otherwise have become involved in criminal conduct"; and (3) police powers should not be used to manufacture crime for the purpose of obtaining convictions (p. 941).

[ 115 ] Entrapment can be made out in two ways, that is, 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 [("opportunity‑based entrapment")];

(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, [the authorities] go beyond providing an opportunity and induce the commission of an offence [("inducement‑based entrapment")].

( Mack , at pp. 964‑65; see also Barnes , at p. 460.)

[ 116 ] These appeals are only concerned with the first branch of entrapment, which has two prongs. First, the police may provide an individual with an opportunity to commit an offence if they reasonably suspect that the targeted individual is already engaged in criminal activity of the same type (the individualized suspicion prong). Second, even if the police do not reasonably suspect that a particular individual is involved in criminal activity, the police may nonetheless provide that individual with an opportunity to commit a criminal offence if they are acting "in the course of a bona fide inquiry" (the bona fide inquiry prong) ( Barnes , at p. 460 (emphasis deleted)).

[ 117 ] The bona fide inquiry prong requires some elaboration. While it was first mentioned in Mack , that case involved the second branch of entrapment (i.e., inducement‑based entrapment). The Court had the opportunity to develop, clarify, and apply the bona fide inquiry prong in Barnes , which remains this Court's authoritative statement on the first branch (i.e., opportunity‑based entrapment). The bona fide inquiry prong was said to refer to an investigation that is "motivated by the genuine purpose of investigating and repressing criminal activity" ( Barnes , at p. 460), and targets persons associated with " a particular location or area where it is reasonably suspected that certain criminal activity is occurring" ( Mack , at p. 956 (emphasis added)). Within an area that is "defined with sufficient precision", the bona fide inquiry prong of entrapment gives law enforcement significant latitude to investigate " any person associated with the area" ( Barnes , p. 463 (emphasis in original)). Indeed, as Lamer C.J. put it in Barnes , "[s]uch randomness is permissible within the scope of a bona fide inquiry" (p. 463). Notably, the location in Barnes , which the Court found to be defined with sufficient precision, consisted of a busy six‑block area in downtown Vancouver. Practically speaking, based on evidence that drug trafficking was prevalent in that six‑block area, Barnes enabled the police to target thousands of unknown persons and provide them with an opportunity to traffic in drugs.

B. The Dial‑a‑Dope Jurisprudence Reveals Problems With the First Branch of Entrapment

(1) The Individualized Suspicion Prong Leads to Anomalous Results in the Dial‑a‑Dope Context

[ 118 ] In the context of entrapment, the individualized suspicion prong has come under fire for leading to anomalous results, particularly in dial‑a‑dope cases where police call alleged drug dealers based on minimal information (see, e.g., S. Penney, "Entrapment Minimalism: Shedding the 'No Reasonable Suspicion or Bona Fide Inquiry' Test" (2019), 44 Queen's L.J. 356, at pp. 357‑58; R. v. Le , 2016 BCCA 155 , 28 C.R. (7th) 187; C.A. reasons, at para. 128, per Himel J., concurring; Williams Second Stay Application reasons, at paras. 22‑23). The concern expressed is that even though the investigating officer may not possess individualized reasonable suspicion at the time he or she offers an opportunity, the police conduct in a typical dial‑a‑dope case cannot be said to rise to the level of an abuse of process warranting a stay of proceedings. Further, as these appeals demonstrate, the individualized suspicion prong has been interpreted to require a minute parsing of the language used by the undercover officer, which has led to artificial distinctions between cases where a stay is granted and cases where the convictions are upheld. These distinctions are often picayune, difficult to draw, and promote an approach that, in my view, is akin to dancing on the head of a pin. Moreover, of fundamental concern, these distinctions are completely untethered from the abuse of process doctrine that is the cornerstone of entrapment.

[ 119 ] In order to avoid a finding of entrapment under the individualized suspicion prong, Mack and Barnes instruct that an officer must have reasonable suspicion before he or she can provide an individual with an opportunity to commit an offence. Post‑ Mack and Barnes , this Court has defined reasonable suspicion as "something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds" ( R. v. Chehil , 2013 SCC 49 , [2013] 3 S.C.R. 220, at para. 26 , quoting R. v. Kang‑Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456, at para. 75 ). It is a "robust standard" that "derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent [and exacting] judicial scrutiny" ( Chehil , at paras. 3 and 26 ).

[ 120 ] In an attempt to both adhere to the formal requirement of reasonable suspicion and preserve the substantive abuse of process character of entrapment in dial‑a‑dope cases, some courts have developed an approach that, with respect and unlike my colleagues, I cannot endorse. Presently, the jurisprudence in some jurisdictions, including Ontario, draws a distinction between taking an "investigative step" (which does not require reasonable suspicion) and presenting an "opportunity" to commit an offence (which does). Investigative steps can furnish the reasonable suspicion necessary to present an opportunity. On its face, this distinction appears unproblematic — clearly, there is a difference between taking a step in the investigation and offering an opportunity.

[ 121 ] The issue, however, is how the courts have drawn the line. A review of the jurisprudence reveals that "investigative steps" have been held to involve engaging a potential drug dealer over the phone and asking general questions, such as "can you hook me up" or "are you rolling". An opportunity, on the other hand, has been defined as a request to purchase a specific quantity of drugs. For example, an officer could provide an opportunity by stating "I need 80" (referring to $80 worth of cocaine) (see C.A. reasons, at para. 42; Williams First Stay Application reasons, at paras. 20‑27; C. De Sa, "Entrapment: Clearly Misunderstood in the Dial‑a‑Dope Context" (2015), 62 Crim. L.Q. 200, at pp. 202‑3). This distinction is the reason why, at first instance, Mr. Williams's entrapment application was allowed while Mr. Ahmad's was dismissed.

[ 122 ] The problem with the "fine line" distinction this approach draws is that it requires courts to closely parse undercover calls to determine whether an accused was entrapped. Judges and academics, as well as interveners in the cases at bar, have criticized this as being unprincipled and impractical. Professor Penney, echoing the comments of Ducharme J. in R. v. Henneh , 2017 ONSC 4835, [2017] O.J. No. 7173 (QL), at para. 24 , has observed that "'asking someone if he is dealing drugs' (which courts have typically characterized as a mere investigative step) is 'no different from asking if he will sell you a specific kind and amount of drugs' (which is undoubtedly opportuning)" ((2019), at pp. 374‑75 (footnote omitted)). He states that "[w]hile the impetus to avoid finding entrapment in these circumstances is understandable, the plausibility of the distinction is dubious" (p. 374 (footnote omitted); see also D. M. Tanovich, "Rethinking the Bona Fides of Entrapment" (2011), 43 U.B.C.L. Rev. 417, at p. 437; Criminal Lawyers' Association of Ontario's factum, at para. 12).

[ 123 ] I agree that parsing conversations with a view to distinguishing between taking investigative steps and offering opportunities is often artificial, perhaps even arbitrary. Moreover, by getting caught up in the precise language used by undercover officers in dial‑a‑dope cold calls, courts have lost sight of the fundamental relationship between entrapment and abuse of process. I note that Bennett J.A. raised a similar concern in Le , 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 drug 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 . [Emphasis added.]

[ 124 ] Justice Himel, concurring in the court below, commented in a similar vein:

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 , at p. 942 S.C.R., "[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" ( MacKenzie , at para. 65 ).

Neither Mr. Williams' case nor Mr. Ahmad's case is one of those "clearest of cases" warranting a stay based on entrapment: see Mack , at pp. 976‑77 S.C.R. 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. [Emphasis added; paras. 126‑28.]

[ 125 ] These concerns with the individualized suspicion prong and the parsing approach it has spawned are well‑founded. The doctrine of entrapment was never intended to interfere with law enforcement techniques that society would not find intolerable and which may be necessary to investigate certain types of crime ( Mack , at pp. 977‑78). And yet, the development of the dial‑a‑dope jurisprudence under the individualized suspicion prong has produced precisely that result.

[ 126 ] The manner in which my colleagues propose to dispose of these appeals provides a clear example of the dubious distinctions that flow from an application of the parsing approach. In Mr. Williams's case, my colleagues would order a stay of proceedings — "the most drastic remedy a criminal court can order" ( Babos , at para. 30 ). In Mr. Ahmad's case, however, they would allow the convictions to stand. In both cases, an undercover officer made a call based on information from an anonymous or a confidential source. Each call was answered by a then‑unknown man. Seemingly without surprise, each man confirmed or did not deny that he went by a name that, based on the officer's information, belonged to a drug dealer operating out of the phone line (in Mr. Ahmad's case, "Romeo"; in Mr. Williams's case, "Jay"). The only distinction between these cases is that the undercover officer in Mr. Ahmad's case waited for the man to say "[w]hat do you need?" in response to a request for "help" before asking for a specific quantity of cocaine:

Relevant Portion of the Conversation between D.C. Limsiaco and Mr. Ahmad	Relevant Portion of the Conversation between D.C. Canepa and Mr. Williams
[Limsiaco]: Hey, It's Mike, Matt said I can give you a call, this is Romeo? Male: He did, did he? [Limsiaco]: Yeah, said you can help me out? Male: What do you need? [Limsiaco]: 2 soft Man: Hold on, I'll get back to you. [Limsiaco]: Alright.	Male: Hello. Canepa: Jay? Male: Yeah. Canepa: You around? Male: Who is this? Canepa: It's Vinny. Male: Vinny who? Canepa: Vinny. Jesse from Queen and Jarvis gave me your name. . .your number. Said you could help me out. I need 80. Male: Okay. You have to come to me.

[ 127 ] It bears repeating at this point that the doctrine of entrapment is only intended to catch state conduct that society would view as intolerable ( Mack , at p. 942; Ahluwalia , at para. 30 ). With respect to the contrary view, I struggle to see how the conduct of either undercover officer in the cases at bar could be viewed as intolerable — indeed, it seems to me the officers were doing precisely what society would expect them to do upon receiving information about an alleged dial‑a‑dope operation, i.e., investigate whether it is true. More significantly, I am at a loss to see how the conduct of the undercover officer in Mr. Williams's case can be said to rise to the level of an abuse of process — conduct which society will simply not tolerate — while the conduct of the undercover officer in Mr. Ahmad's case is found to be acceptable. With respect, I believe that the reasonably informed observer in our society would be utterly bewildered by this distinction. That the jurisprudence of this Court has been interpreted to demand results that do not make sense when considered through an abuse of process lens is a sign that something has gone wrong, either in the interpretation or the formulation of the entrapment doctrine.

(2) Judicial Development of the Reasonable Suspicion Standard Has Produced Doctrinal Incoherence Within the Bona Fide Inquiry Prong

[ 128 ] In the wake of the anomalous results produced under the individualized suspicion prong, some courts have turned to the bona fide inquiry prong to analyze police conduct in dial‑a‑dope cases (see e.g. C.A. reasons, at paras. 49‑68; Le , at para. 96). This approach has intuitive appeal in this context. The bona fide inquiry prong was intended to give law enforcement a measure of flexibility in investigating crimes, particularly crimes that are "consensual" in nature or otherwise difficult to detect through traditional modes of investigation. Although the entire first branch of entrapment is animated by the notion that the state should not be permitted to randomly test the virtue of its citizens, the Court in Mack and Barnes nonetheless recognized that it is acceptable for the police to randomly approach citizens and offer them opportunities to commit offences, so long as the area within which they are operating is "defined with sufficient precision" and they "reasonably suspec[t]" that that type of crime is occurring in the area ( Barnes , at p. 463). Fundamentally, the Court in those cases confirmed that maintaining an appropriate balance between individual liberty and legitimate law enforcement requires affording the police "substantial leeway" to investigate certain types of crime ( Mack , at pp. 977‑78). Indeed, when one examines the police conduct that was considered acceptable by this Court in the leading bona fide inquiry case of Barnes — i.e., randomly approaching any person, amongst potentially thousands of people, within a bustling six‑block area of downtown Vancouver and giving them an opportunity to commit an offence — it becomes abundantly clear that the Court intended to give the police a wide measure of deference in investigating criminal activity. In light of that result, it follows that the conduct at issue in these appeals was never intended to fall within the ambit of the doctrine of entrapment.

[ 129 ] The problem in applying the bona fide inquiry prong as defined in Mack and Barnes to present‑day dial‑a‑dope investigations is that the reasonable suspicion standard has evolved since those cases were decided. As I elaborate below, the development of the reasonable suspicion standard in the context of s. 8 of the Charter has given rise to doctrinal issues within the bona fide inquiry prong. Briefly, in Chehil , this Court rejected the notion that reasonable suspicion includes generalized suspicion that "attaches to a particular activity or location rather than to a specific person" (para. 28 (emphasis added); see also S. Penney, "Standards of Suspicion" (2018), 65 Crim. L.Q. 23, at pp. 40‑41). And yet, that is precisely the kind of generalized "reasonable suspicion" which the Court in Mack and Barnes incorporated into the bona fide inquiry prong. This deliberate choice reflects the Court's view that requiring the police to meet a more stringent standard, such as individualized reasonable suspicion, would unduly hinder law enforcement efforts and thereby fail to strike an appropriate balance between individual liberties and legitimate law enforcement.

[ 130 ] Since Mack and Barnes were decided, individualization has come to define the reasonable suspicion standard. Chehil is now the leading decision on the meaning of reasonable suspicion. In that case, Karakatsanis J., writing on behalf of a unanimous Court, described reasonable suspicion as "a robust standard determined on the totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny" (para. 3). While Chehil and the companion case of R. v. MacKenzie , 2013 SCC 50 , [2013] 3 S.C.R. 250, were concerned with the constitutionality of sniffer dog searches, the Court — recognizing that reasonable suspicion "is a common standard that arises in a number of contexts" — took the opportunity to provide guidance on the general principles that lie at the core of the reasonable suspicion standard ( Chehil , at para. 21 ).

[ 131 ] In the entrapment context, the notion of "reasonable suspicion" was invoked by the Court under both the individualized suspicion prong, as described in the previous section, and the bona fide inquiry prong. Mack and Barnes both indicate that the bona fide inquiry prong permits police to conduct genuine investigations that target persons associated with "a particular location or area where it is reasonably suspected that certain criminal activity is occurring".

[ 132 ] However, in Chehil , this Court rejected the possibility of the kind of generalized location‑based suspicion that Barnes incorporated into the bona fide inquiry prong. Under Barnes , bona fide inquiries only require a kind of generalized suspicion that, when cast over an area that is defined with sufficient precision, justifies randomly presenting individuals with opportunities to commit crime (p. 463). In that case, Lamer C.J. spoke of the police having "reasonable suspicion" over a six‑block area in downtown Vancouver. In Chehil , this Court identified that type of suspicion as "generalized suspicion", and held that however flexible the reasonable suspicion standard may be, it does not include generalized suspicion:

The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter‑compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature: see Kang‑Brown , at para. 60 , per Binnie J., and A.M. , at paras. 81‑84 , per Binnie J. However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M. , as suspicion "that attaches to a particular activity or location rather than to a specific person". [Emphasis added; para. 28.]

[ 133 ] To place this paragraph of Chehil in context, it is necessary to appreciate that in carving "generalized suspicion" out of "reasonable suspicion", the Court was rejecting the view that Bastarache J. had advanced in his dissenting reasons in the companion cases of Kang‑Brown and R. v. A.M. , 2008 SCC 19 , [2008] 1 S.C.R. 569. In those cases, this Court considered whether the police had a common law power to use sniffer dogs to detect drugs. A five‑judge majority of the Court held that sniffer dog searches were permissible on a Charter‑compliant standard of "reasonable suspicion". According to Binnie J., whose view on this point was later adopted in Chehil , reasonable suspicion means individualized suspicion ( Kang‑Brown , at para. 75 ). Justice Bastarache, dissenting in the result, agreed that police only needed reasonable suspicion to conduct a sniffer dog search. However, his definition of "reasonable suspicion" included generalized suspicion (paras. 213‑15).

(The dissenting reasons continue through paragraphs 134–188, completing the analysis of doctrinal incoherence, proposing the revised bona fide inquiry framework, and applying it to both appellants.)