On Friday, May 29, 2020, the Supreme Court of Canada rendered its judgment in Javid Ahmad v. Her Majesty the Queen and Landon Williams v. Her Majesty the Queen. The Supreme Court placed important limits on the power of police to step beyond their normal investigative role and tempt people into committing criminal offences. The BC Civil Liberties Association (BCCLA) was an intervener in the cases.
These cases consider the limits of police powers with respect to tempting people to commit crimes in the context of “dial-a-dope” investigations. At the centre of these cases is the question of what grounds are needed before the police can offer a suspect the opportunity to commit a crime over the phone. Dial-a-dope investigations involve undercover police operatives calling someone suspected of operating a drug trade phone service and attempting to lure the suspect into selling the police operative drugs.
The Supreme Court ruled that police need to be able to show the court that they had a “reasonable suspicion” that a certain crime was happening to suspect someone answering a phone is involved in drug dealing before asking them to sell drugs. A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion. Without reasonable suspicion, police operatives can be accused of entrapment.
The Supreme Court affirmed that reasonable suspicion is required in all cases where police provide an opportunity to commit a criminal offence, whether the police are targeting a person, place or phone number.
The Supreme Court stated in its judgment, “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.”
Furthermore, providing individuals with the opportunity to commit crimes without a reasonable suspicion 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.
In our intervener submissions to the Supreme Court, the BCCLA argued that it is important to narrowly define the virtual locations, such as phone numbers and websites, in which police can provide the opportunity to commit a crime. Without doing so, Canadians’ Charter rights to privacy and to being left alone may be violated. Even minimal state interference can become intrusive and unconstitutional when it is used over many people with little justification. For example, it would be highly intrusive to permit police to send a message to every person with a posting on a website such as Craigslist in an attempt to tempt them to deal in stolen property.
The BCCLA is represented by Marilyn Sanford, Q.C., Kate Oja and Michael Sobkin.