Criminal lawyers as well as the courts have always found the law of entrapment difficult to apply in real life situations. The doctrine as set out by the Supreme Court provides for two basic types of entrapment: (a) when 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, and, (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

The second ground for invoking the defence of entrapment – which is usually seen in drug cases but is applicable to any criminal offence – has not required much development since the Supreme Court set out the criteria for deciding whether the second branch of the defence applies in the leading case of Mack in 1988:

“The following factors may be considered in determining if the police have gone further than providing an opportunity: (1) the type of crime being investigated and the availability of other techniques for the police detection of its commission; (2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime; (3) the persistence and number of attempts made by the police before the accused agreed to committing the offence; (4) the type of inducement used by the police including: deceit, fraud, trickery or reward; (5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; (6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; (7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; (8) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; (9) the existence of any threats, implied or express, made to the accused by the police or their agents; (10) whether the police conduct is directed at undermining other constitutional values. This list is not exhaustive.”

The first branch of the test prohibits what was historically referred to as “random virtue testing” which means government agents are not allowed to offer individuals the opportunity to commit a crime unless there are elements which justify a suspicion that the target is involved in the type of illegal activity being investigated. The test was explained in Mack in these terms: “…the reasonable suspicions of the police could be based on many factors and … it is not necessary for one of these factors to be a prior conviction. If the police have obtained information leading to a reasonable suspicion that a person is engaged in criminal activity, it will be enough of a basis for them to provide that person with the opportunity to commit an offence ‑ the presence of a prior criminal record is not a prerequisite to the formation of reasonable suspicion.”

The modern day ubiquity of cell phones in the practice and investigation of the drug trade prompted the Supreme Court, in two cases decided in one judgment – Williams and Ahmad –  to attempt to clarify the rules for how a reasonable suspicion of illegal activity can be obtained by the police through the use of telephone communication.

As summarized in the judgment:

“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.”

Since the enactment of the Charter of Rights in 1982 it has been clear that unconfirmed information from an informer cannot justify the use of intrusive investigative tools such as search warrants and wiretaps. It is necessary to confirm the reliability information to some extent in order for the tip to have sufficient probative value to support the use of investigative tools.

In the case of Ahmad and Williams the Supreme Court decided it is lawful for police to call a number provided by an informant but before providing an opportunity to commit a crime – in these instances by asking to purchase drugs – it is necessary to form a reasonable suspicion of drug related activity through conversation not involving a request to purchase drugs.

Thus, in the case of Ahmad, where the police called his number and verified the his name against that provided by the informant and asked whether Ahmad could “help me out”. It was held that when the target answered “What do you need” the police officer was justified, according to his knowledge of drug dealer’s jargon, in forming the belief he was being told drugs were available. Thus the officer had formed the requisite suspicion in the existence of illegal activity and was justified in providing the opportunity to commit the offence by asking to buy drugs.

In Williams‘ case the police officer asked him to supply drugs before anything in the conversation confirmed the target’s participation in drug trafficking. The court held this to be entrapment since the opportunity to to commit the crime – i.e. the offer to purchase – was provided before the officer had any reason other than the unconfirmed tip to believe the target was engaged in drug trafficking. Thus, Williams was held to be illegally entrapped.

Criminal lawyers  in Montreal and elsewhere will now have grapple with determining in which cases the officers’ words are sufficiently neutral so as not to be qualified as providing an opportunity to commit the offence, as well as what kind of responses from the target are sufficient to form the belief in illegal activity. However, contrary to what many criminal lawyers might have predicted, it is clear police officers are permitted to solicit incriminating statements from individuals on the basis of informants’ tips without confirming the reliability of information alleging criminality on the part of target.

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