What is Entrapment?

By Cameron Rogers

What constitutes a legitimate investigative law enforcement technique can easily veer into an infringement on the rights of individuals in Canada. This is often the case with the police technique of entrapment, where police trick individuals into committing a crime to secure their conviction. Such tactics are intolerable and put the administration of justice in disrepute. Subsequently, even if a prosecutor proves the case beyond a reasonable doubt, a judge will enter a stay of proceedings and order the individual freed if they are entrapped.

Entrapment comes up in many contexts and is prevalent with the offence of drug dealing.

We see this in the context of ‘dial-a-dope’ operations or drug dealing over the phone. Recently, the Supreme Court of Canada reviewed the concept of entrapment and ‘dial-a-dope’ operations in the case of R. v. Ahmad. At the heart of the Supreme Court’s entrapment analysis is whether undercover police possessed a reasonable suspicion before tricking an individual into committing the offence. This blog will examine the implications of entrapment and discuss how a criminal defence attorney can determine if you have been entrapped.

When Can an Undercover Officer Trick You?

In the context of drug trafficking, police require what is known as reasonable suspicion before they can make an opportunity to buy drugs. In the context of a conversation to buy drugs, an opportunity to commit an offence is established when a mere affirmative response to the question posed by law enforcement satisfies the elements of the offence. Examples of opportunities to commit an offence include: “I need half a B” or “I need a ball of hard” or “Are you around? I need six greens.”

However, undercover officers are allowed to engage in what is known as an investigative step when talking to a suspect. This includes questions and comments that do not satisfy the element of the offence with a mere affirmative response. This includes comments such as “can you hook me up?” or “I need product” or “I’m looking for some good stuff.”

As one could imagine, what constitutes an opportunity or investigative step and when an officer possesses reasonable suspicion has led to difficult and inconsistent analysis in the courts. As mentioned above, in R. v. Ahmad, the Supreme Court tried to clarify investigative steps and opportunities to commit offences, entrapment and reasonable suspicion in the ‘dial-a-dope’ context. Still, much confusion remains.

In R. v. Ahmad, the Supreme Court simultaneously examined the case of two individuals: Mr. Ahmad and Mr. Williams. Both individuals were charged with dealing cocaine. In the case, the Supreme Court found that Mr. Williams but not Mr. Ahmad had been entrapped. Subsequently, Mr. Williams was set free while Mr. Ahmad was convicted and sent to prison. Below is a transcript of the conversation between the undercover officer and each accused:

For Mr. Ahmad, the police officer stated, “said you can help me out?” to which Mr. Ahmad replied, “What do you need?” The Supreme Court considered Mr. Ahmad’s response to be a statement where the undercover officer obtained reasonable suspicion. Subsequently, the undercover officer could make an offer to buy drugs from Mr. Ahmad without entrapping him.

For Mr. Williams, the Supreme Court held that the undercover officer did not possess a reasonable suspicion when he stated, “said you can help me out. I need 80.” The undercover officer’s offer to buy drugs constituted entrapment. Despite meeting up with the officer and selling him drugs, the charges against Mr. Williams were stayed because he was entrapped. Mr. Williams was able to go free. As one can see, determining whether the officer acquired reasonable suspicion before extending an opportunity to commit the offence of drug dealing can boil down to a mere parsing of words.

If You Think You’re in Trouble with the Law Reach Out

The law surrounding entrapment is complex but the stakes are high. Whether an individual has been entrapped is the difference between being set free and spending a significant time in prison.

A criminal defence attorney can examine the transcript of a phone call between an undercover office and an accused to determine if entrapment has occurred.

It is important to know your rights and when law enforcement have violated them. If you have been charged with an offence for drug trafficking, you will want a skilled lawyer. You will want a lawyer who can examine the facts and see if you have been entrapped. Call Aitken Robertson for a free 30-minute consultation and we can help you fight the charges.