Help Me Out: Drawing Distinctions In The Entrapment Defence

• Published date: 29 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Class Actions, Trials & Appeals & Compensation, Food and Drugs Law
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Andrew Matheson and Kishan Lakhani

In the recent decision of R v. Ahmad,¹ a majority of the Supreme Court maintained a framework for the entrapment defence established in prior decisions,² specifically holding that the 'reasonable suspicion' branch is appropriate in the context of 'dial-a-dope' investigations.

The Supreme Court considered two cases arising from circumstances that were very similar, yet different in a way that led the majority to enter a stay of proceedings in one and a conviction in the other. The success of an entrapment defence in one case, and the failure in the other, turned on whether police had formed a 'reasonable suspicion' before offering an opportunity to commit a drug offence.

The accused in the two cases - Ahmad and Williams - were charged with possession of cocaine for the purpose of trafficking, and investigations against each of them originated with police receiving an anonymous tip that a phone number was associated with drug dealing³. In both cases, an undercover officer called the phone number provided by the tip, engaged in brief conversation, requested drugs, and arranged a meeting place to purchase drugs. Undercover police subsequently met the accused at agreed locations and purchased drugs from them. Both accused raised the defence of entrapment, but were convicted at first instance.

In both cases, the tip police had received was unverified up to the point of the telephone call by the undercover officer to the accused - the credibility of the source was unknown, and there no corroboration of the information provided by the source. However, the majority of the Supreme Court held there was a key distinction between the two cases. In Ahmad's case, the undercover officer asked at beginning of the telephone conversation ".you can help me out?", to which the response was "what do you need?"⁴. This use of drug trafficking jargon was sufficient, along with the other circumstances, to find reasonable suspicion on the part of the undercover officer. If police lacked a reasonable suspicion prior to providing an opportunity to commit the offence, the accused would be entrapped and entitled to a stay of proceedings notwithstanding his or her guilt.

In Williams' case, by contrast, the undercover officer made a specific request for a dollar amount of cocaine, rather than asking an "investigative question" prior to providing an opportunity to commit an offence. Acting on a tip that was not verified in advance of or during the telephone conversation, the police...