Supreme Court rules vague tip is not enough keep police call to suspected drug dealer from being entrapment

Police who phone drug dealers on an uncorroborated tip and ask to buy narcotics may be guilty of entrapment, a narrow majority of the Supreme Court ruled on Friday. When a judge finds police have entrapped a suspect, the charges are automatically thrown out.

The ruling in two drug-trafficking cases is important for the digital age, when criminals such as drug dealers, child abusers and terrorists communicate over disposable cell phones or the internet. The Ontario Attorney-General had argued in a legal filing that “lethal drugs are delivered today like pizza,” and that when police phone drug-dealing hotlines there is “zero risk of ensnaring the otherwise innocent.” The Canadian Association of Chiefs of Police, which intervened in the two cases, said a tip should be enough; the person on the phone can simply disconnect.

The court’s majority emphatically disagreed, saying that when police “test” people’s “virtue,” judges need to closely scrutinize at trial how and why they did so. A tip does not pass muster, it said.

“Such a low bar would do nothing to protect people from random virtue testing: being called by police and invited to commit an offence based on malice, rumour or gossip," the majority said in a ruling co-written by Justice Andromache Karakatsanis, Justice Russell Brown and Justice Sheilah Martin, and joined by Justice Rosalie Abella and Justice Nicholas Kasirer.

While the court ruling requires police to meet the same standard for avoiding entrapment as set out 30 years ago -- having a reasonable suspicion before trying to induce someone to commit a crime -- it clarifies in practice what steps police need to take. For instance, when making a phone call to a suspected drug-dealing hotline, they might consider the informant’s reliability -- how long have the police used the source, how reliable has the person been in the past.

The ruling came in two cases in which Toronto Police had phoned “dial-a-dope” numbers, and arranged to meet the men who answered, then purchased cocaine from them. In the case of Javid Ahmad, the police received a tip of unknown veracity. In the case of Landon Williams, police were given information about a man named “Jay,” but nothing connecting him to Mr. Williams.

The majority said it is preferable to have more information before calling. But a reasonable suspicion may be developed during a call, the court said. It reviewed the transcripts of the police phone calls, and found that the officer who reached Mr. Ahmad acted appropriately. The key exchange was: “You can help me out?” Mr. Ahmad answered, “What do you need?” “Two soft.” In the other case, the officer said, “I need 80,” before Mr. Williams said anything suspicious.

The court convicted Mr. Ahmad of trafficking, and dismissed trafficking charges against Mr. Williams. (That result mirrored the verdicts in their trials; the Ontario Court of Appeal had found both guilty.)

The court’s minority said the general public would be “utterly bewildered” why one was convicted and the other was not. It said the key to entrapment should be whether the police conduct was abusive, not the wording of the phone calls.

“I struggle to see how the conduct of either undercover officer in the cases at bar could be viewed as intolerable — indeed, it seems to me the officers were doing precisely what society would expect them to do upon receiving information about an alleged dial‑a‑dope operation, i.e., investigate whether it is true,” Justice Michael Moldaver wrote, supported by Chief Justice Richard Wagner, Justice Malcolm Rowe and Justice Suzanne Côté.

Bryant Mackey, a lawyer for the Vancouver Police Department, said in an interview that police “have a pretty good sense of the common good and what might step over the line, and sometimes when the courts lay down these tests driven by semantic distinctions, it can be difficult for police on the ground."

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