Entrapment after Ahmad

The Supreme Court of Canada released their decision on the case of R v Ahmad on May 29, 2020. The case upheld and crystalized the existing legal test and clarified some issues about how the test is to be used in dial-a-dope operations.

Although there isn’t much in the decision that can be considered “new law” it is useful to have one primary case to consider when dealing with an entrapment defence.
Entrapment occurs when either 1) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides… or, 2) Having 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.

There are a number of terms and phrases within that definition that have been defined in other cases and were clarified by the court in Ahmed.

Providing an opportunity
When authorities provide an opportunity, it can be offered to a specific person, or to people who are in a specific location or “place”. The Court in Ahmed clarified that the definition of a “place” includes a phone number. However, a website or social media platform is not a “place” as it is too broad. To help determine if something is a “place” the Court provided a list of factors to consider including 1) the seriousness of the crime, 2) Time of day and number of activities and persons who might be affected, 3) Racial profiling, stereotypic or reliance on vulnerabilities played a part in the selection of the location, 4) Level of privacy expected in the area or space, 5) Importance of the virtual space to freedom of expression, and 6) Availability of other less intrusive techniques.

Reasonable suspicion
The “Reasonable Suspicion” standard is designed to prevent “overtly discriminatory or stereotypical thinking, or [reliance] upon ‘intuition’ or ‘hunches’ that easily disguise unconscious racism and stereotyping.” It is objective, lower than reasonable grounds, and requires only the possibility, not the probability, of criminal activity. It must be founded in precise, reasonable, and based in objective facts that “stand up to independent scrutiny.” In dial-a-dope operations the police are required to form a reasonable suspicion before they provide the opportunity to commit an offence. It doesn’t matter if the reasonable suspicion is formed before the phone number is dialed or during the phone call, as long as it is before the opportunity is offered.

Offering of an opportunity to commit an offence
Ahmed clarified that an opportunity is offered “when an affirmative response to the question posed by the officer could satisfy the material elements of an offence.” This test was later rephrased as “an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering ‘yes’.”

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