Entrapment is a widely used, but commonly misunderstood, term. The Supreme Court of Canada has recently affirmed the longstanding test for entrapment initially outlined in R. v. Mack in 1988 and given guidance on how that test applies to undercover operations targeting dial-a-dope drug operations in R. v. Ahmad.
The doctrine of entrapment was recognized, as explained in Mack, because it is a deeply ingrained value in Canada that the ends do not always justify the means. Some of those means are unacceptable in a free society with strong notions of fairness, decency, and privacy. Although police must be afforded latitude, there are limits because police involvement in the commission of a crime can bring the administration of justice into disrepute.
In Canada there are two ways in which entrapment can occur. The first is if the police present someone with an opportunity to commit an offence without a reasonable suspicion that that person is involved in that particular type of criminal activity. This is sometimes referred to as a prohibition on random virtue testing. In other words the police can’t just go around and give anyone they feel like an opportunity to commit a crime. The second is if the police go further and induce the commission of an offence. This second branch is what occurred in R. v. Nuttall.
The Supreme Court dealt with the first branch Ahmad. That decision concerned two cases in which undercover officers placed calls looking to purchase drugs from the individuals who answered the phone.
A few principles emerge from this decision. Firstly, a bare tip from an unverified source that someone is dealing drugs from a phone number cannot support reasonable suspicion. Secondly, an analysis of the discussion between the officer and the person who answered will be inevitable in deciding whether a reasonable suspicion existed at the time an opportunity to commit an offence was provided.
The analysis of the conversation in future cases will likely involve a consideration of whether any details in the tip had been corroborated as well as a whether the conversation was indicative of someone knowledgeable with drug-trafficking slang.
In the end the decision in Ahmad has brought needed clarity to entrapment in undercover drug investigations but may also lead to more such applications being brought for cases already in the system where officers may not have acted in compliance with this decision.