The Supreme Court of Canada recently released a decision in two entrapment cases in which it clarified that police need good reason to suspect someone answering a phone (or the number itself) is involved in drug dealing before asking them to sell drugs.
The appeal to the Supreme Court of Canada involved the appeal of two similar cases.
In both cases, the police received an unsubstantiated tip that a phone number was associated with drug dealing. An officer called the number and, after a brief conversation, requested drugs.
In the first case, a police detective received information from another police officer that a person named “Romeo” was selling drugs using a specified phone number. He called the number and, after a brief conversation, the officer asked for “2 soft,” meaning two grams of powder cocaine. The man on the line subsequently agreed to meet to effect the sale. The officer went to the meeting place, called the number again, met the man who answered the phone, and exchanged $140 for two small plastic bags of cocaine. Police arrested and searched the man (the “first accused”). On his person, police found an envelope with the handwritten word “Romeo” on it containing cash, the $140, the cell phone that had been used to set up the transaction, and two small bags of powder cocaine. In the first accused’s backpack, the police found a large quantity of cocaine and three envelopes containing cash.
In the second case, a detective who was a member of the drug squad, received an information package from another officer about “Jay,” who was alleged to be selling cocaine in a certain area in Toronto. Subsequently, another detective was given some of this information and called the number. The man who answered the phone confirmed his name was “Jay.” The officer said that he needed “80 . . . [h]ard,” meaning $80 worth of crack cocaine, and the man replied that they should meet at a particular intersection. The officer met the man, later revealed to be the second accused, and exchanged $80 for the crack cocaine. Eleven days later, he arranged a second transaction and made the same purchase. The next month, police arrested the second accused.
Lower Court Decisions
In first accused’s case, the court concluded that he was not entrapped because the police did not offer him an opportunity to traffic drugs until they had sufficiently corroborated the tip in the course of the conversation.
In the second accused’s case, the court found that he was entrapped because the police provided him with an opportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking.
Court of Appeal Decision
The Crown’s appeal from the stay in the second accused’s case and the defence’s appeal from the conviction in the first accused’s case were heard together.
The court held that entrapment was not made out for either accused. It concluded that where reasonable suspicion relates to the phone number itself, the police can provide opportunities to a person associated with that phone number to commit offences, even if they do not also have a reasonable suspicion about the person who answers the phone.
Supreme Court of Canada Decision
The majority of the court explained that police can ask a person answering a phone to commit a crime, but they can only do this if they already have reasonable suspicion. Reasonable suspicion must be about a specific person committing a crime or crime happening in a specific place, which can include a phone number. Therefore, police need a good reason to suspect that the person answering is committing a certain crime or the phone number is being used for that crime before asking them to commit a crime.
However, police do not have reasonable suspicion if are only relying a tip and do not know if it’s reliable. Police can develop reasonable suspicion by investigating if a tip is reliable before calling. The majority stated that the police should have reasonable suspicion before making the call, but that it is also possible to establish reasonable suspicion by having a conversation with the person who answers.
In both appeals, the police did not have reasonable suspicion before calling the phone numbers. The court found that the first accused was not entrapped because police developed a good reason to suspect he was selling drugs while talking to him on the phone, which they confirmed before they asked to buy drugs from him.
However, the court found that the police did not confirm the tip during the phone call in the second accused’s case. The majority of the court found that he wasentrapped because the police asked to buy drugs from him before they had a good reason to suspect he was selling drugs.
As a result, the court upheld the first accused’s conviction and reinstated the stay of proceedings for the second accused.
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