R. v. AHMAD, 2020 SCC 11

Police while conducting “dial-a-dope” investigations for catching persons suspected to be involved in drug dealing must have first built “reasonable suspicion” before asking them to sell drugs.

This case dealt with two entrapment cases within. The primary question before the Supreme Court was to determine contours of the reasonable suspicion to be built by police to determine whether an accused was involved in a dial-a-dope operation or not when police receives a tip or information about a phone number which is suspected to be used for selling illicit drugs by drug traffickers.

The law on the subject is already settled in verdict of R. v. Mack, [1988] 2 S.C.R. 903 that the police can’t offer or entrap an accused who is answering a cell phone the opportunity to commit a crime without first forming a reasonable suspicion (thereby acting in mala fide manner) or under bona fide inquiry, induce the commission of an offence under the belief that either person or the phone number is used for criminal activity. This implied that the courts are required to rely on reasonable suspicion test to ascertain justness of such police action. A mere tip from an unverified source about accused can never be a ‘reasonable suspicion’ and it has to be sufficiently corroborated. This is for the Court to do a judicial review of the police’s knowledge when it provided an opportunity of selling drugs to suspect.

With majority of 5:4, the Court laid down the law on the matter stressing that reasonable suspicion assumes importance as without it, police would catch any person committing a breach of Canadian’ Charter rights to privacy. Sometimes, it would also lead to the creation of a crime during an investigation, which would have not been committed had police acted after reasonable suspicion.

This reasonable suspicion also allows courts to judicially review the actions of the police to see whether they were acting properly and within bounds. Otherwise, action of police will fall under entrapment and vitiate the whole criminal proceedings against accused.

The virtual place where the police make investigation must be defined narrowly and with sufficient precision to qualify as a place, while websites/social media doesn’t qualify, an individual’s phone qualifies that. When Courts judicially review the reasonable suspicions formed by the police, the first scrutiny would be that of the tip from the sources. Whether details given in tips are compelling, informant is credible and information is corroborated or not would lead to confirmation of tip’s reliability. An essential inquiry would also be of the target’s responsiveness to details of the tip.

In addition, the court noted that reasonable suspicions formed by police can never be retroactive i.e. after making an offer of buying drug (thereby providing an opportunity to commit a crime). For an offer to be justified, reasonable suspicions always have to be prospective i.e. ex-ante. In case it has not been made beforehand, it must be made in the course of conversation. For this reason, the phone conservation becomes crucial for the Court. The police have to be cautious while conversation if they say something to which the accused has to simply answer yes/no to commit a crime, it will amount to police providing an opportunity to commit a crime, thereby calling for a stay of proceedings.