Javid Ahmad Appellant v. Her Majesty The Queen, 2020 SCC 11

SUPREME COURT OF CANADA Citation: R. v . Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577 Appeals Heard: October 11, 2019 Judgment Rendered: May 29, 2020 Dockets: 38165, 38304 Between: Javid Ahmad Appellant and Her Majesty The Queen Respondent - and - British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario and Canadian Association of Chiefs of Police Interveners And Between: Landon Williams Appellant and Her Majesty The Queen Respondent - and - British Columbia Civil Liberties Association and Independent Criminal Defence Advocacy Society

Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. Joint Reasons for Judgment: (paras. 1 to 85) Reasons Dissenting in Part: (paras. 86 to 188) Karakatsanis, Brown and Martin JJ. (Abella and Kasirer JJ. concurring) Moldaver J. (Wagner C.J. and Côté and Rowe JJ. concurring) Javid Ahmad Appellant v. Her Majesty The Queen Respondent and British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario and Canadian Association of Chiefs of Police Interveners - and - Landon Williams Appellant v.

Her Majesty The Queen Respondent and British Columbia Civil Liberties Association and Independent Criminal Defence Advocacy Society Interveners Indexed as: R. v. Ahmad 2020 SCC 11 File Nos.: 38165, 38304. 2019: October 11; 2020: May 29.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Criminal law — Abuse of process — Entrapment — Dial-a-dope operations — Police receiving tips of unknown reliability that phone numbers of two accused associated with drug trafficking — Undercover officers phoning each accused and arranging for

drug transactions — Accused arrested and charged with drug-related offences — Accused seeking stays of proceedings on basis ofentrapment — Whether police had reasonable suspicion that accused or phone numbers were engaged in drug trafficking at time policeprovided opportunity to commit offences — Application of entrapment framework to dial-a-dope investigations. In each appeal, the police received an unsubstantiated tip that a phone number was associated with a suspected dial-a-dopeoperation. In these operations, drug traffickers use cell phones to connect with their customers and sell them illicit drugs.

Officers calledthe numbers and, in brief conversations with the men who answered, requested drugs and arranged meetings to complete thetransactions. A and W were subsequently arrested and charged with drug-related offences. At trial, each accused claimed that theproceedings should be stayed on the basis of entrapment. In A’s case, the trial judge entered convictions, concluding that the accusedwas not entrapped because the police had not offered him an opportunity to traffic drugs until they had sufficiently corroborated the tipin the course of the conversation.

In W’s case, the trial judge found that the accused was entrapped because the police provided him anopportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking. The Court of Appeal held thatentrapment was not made out for either A or W. A majority of the court concluded that where reasonable suspicion relates to the phonenumber itself, the police can provide opportunities to commit offences to a person associated with that phone number, even if they do notalso have a reasonable suspicion about the person who answers the phone.

Accordingly, the Court of Appeal dismissed A’s appeal butallowed the Crown’s appeal in W’s case, entering convictions. Held: The appeal by A should be dismissed. Held (Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting): The appeal by W should be allowed, the convictions setaside, and the stay of proceedings reinstated. Per Abella, Karakatsanis, Brown, Martin and Kasirer JJ.: The entrapment framework set out in R. v. Mack, (SCC), [1988] 2 S.C.R. 903, and R. v. Barnes, (SCC), [1991] 1 S.C.R. 449, has proved workable for decades in a varietyof contexts.

It has stood the test of time, furnishing a principled, stable and generally applicable doctrine that is fully capable of adaptingto a variety of circumstances and responding to the evolution of crime and police tactics. There is no reason to alter the carefullycalibrated balance struck in these cases in investigations of suspected dial-a-dope operations. Applying the Court’s entrapmentframework and in particular its reasonable suspicion standard, the decision of each trial judge should be affirmed. While A was notentrapped, W was. The Court’s decision in Mack settled the law of entrapment in Canada.

It set out two alternative branches, either of which issufficient to ground an accused’s claim of entrapment and justify a stay of proceedings. On the first branch, at issue in these appeals, thepolice may present an opportunity to commit a crime only upon forming reasonable suspicion that either a specific person is engaged incriminal activity or people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry.

The offerof an opportunity to commit a crime must always be based upon a reasonable suspicion of particular criminal activity, whether by aperson, in a place defined with sufficient precision, or a combination of both. In every context, the reasonable suspicion standard ensurescourts can conduct meaningful judicial review of what the police knew at the time the opportunity was provided. This standard requiresthe police to disclose the basis for their belief and to show they had legitimate reasons related to criminality for targeting an individual orthe people associated with a location.

An individual phone number can qualify as a place over which police may form reasonable suspicion. However, a phonenumber is not the same as a public physical location. A phone is a means of private communication between persons, and calling anumber, or exchanging text messages, is an inherently private activity. Accordingly, state surveillance over virtual spaces is of anentirely different qualitative order than surveillance over a public space.

Technology and remote communication significantly increasethe number of people to whom police investigators can provide opportunities, thereby heightening the risk that innocent people will betargeted. It is therefore important to carefully delineate and tightly circumscribe virtual locations in which police can provide theopportunity to commit a crime.

The virtual space must be defined with sufficient precision in order to ground reasonable suspicion.Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that thepurview of their inquiry is no broader than the evidence allows. Police cannot offer a person who answers the phone the opportunity to commit an offence without having formedreasonable suspicion that the person using that phone, or that phone number, is engaged in criminal activity.

Whether the police aretargeting a person, place or phone number, the legal standard for entrapment is a uniform one, requiring reasonable suspicion in all caseswhere police provide an opportunity to commit a criminal offence. Reasonable suspicion is a familiar legal standard that provides courtswith the necessary objective basis on which to determine whether the police have justified their actions. It protects individuals’ interestsand preserves the rule of law by ensuring courts can meaningfully review police conduct.

It requires that a constellation of objectivelydiscernible facts give the officer reasonable cause to suspect that a certain kind of crime was being committed by a particular person or ina particular place. Reasonable suspicion is also individualized, in the sense that it picks an individual target — whether a person, anintersection or a phone number — out of a group of persons or places.

When an objectively grounded suspicion attaches to a sufficientlyparticularized constellation of factors, like those relating to an individual phone number, concerns about the police intruding on theprotected interests of all persons in broadly or poorly defined locations fall away. A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonablesuspicion. However, it can be sufficiently corroborated such that the standard is met.

Police practice itself shows that, whether the policeare investigating an individual or a phone number, various steps can be taken upon receiving a tip associating a phone number withdial-a-dope activity before acting on it by calling the number. Although it would be prudent for police officers to investigate thereliability of the tip before placing the call where they are able to do so, it is also possible for the police to form reasonable suspicion inthe course of a conversation with the target, but prior to presenting the opportunity to commit a crime.

The target’s responsiveness todetails in the tip, along with other factors, may tend to confirm the tip’s reliability. The target’s use of or response to language particularto the drug subculture properly forms part of the constellation of factors supporting reasonable suspicion. Whether or not responding tosuch terminology is neutral or adds to the weight of other factors will depend on the circumstances. There is no requirement that thepolice rule out innocent explanations for these responses.

Unless the police had formed reasonable suspicion before a phone call was made, review of the words spoken during the callis unavoidable in order for the court to determine whether an accused was entrapped. Reviewing conversations between undercoverofficers and their targets in the dial-a-dope context is the inevitable consequence of accepting that the police must have reasonablesuspicion before offering an opportunity to commit an offence. Reasonable suspicion is not formed retroactively, but appliedprospectively.

Reasonable suspicion can justify an action only on the basis of information already known to police. A court mustexamine all of the circumstances, and not merely the language used during the call, in order to determine whether police had formedreasonable suspicion by the time the opportunity was provided. The determination of whether a police action constitutes an opportunity to commit an offence is informed both by thedefinition of the offence and the context in which the action occurred.

The definition of drug trafficking includes not only selling,transporting and administering illegal drugs, but also making an offer to do so. In the dial-a-dope context, in which the initial interactionbetween the police and target occurs entirely over the phone, the exercise centres on determining whether words spoken by the policeofficer constitute an opportunity to commit drug trafficking. The inquiry is properly directed to how close the police conduct is to thecommission of the offence.

To allow the police sufficient flexibility to investigate crime, an officer’s action — to constitute an offer of anopportunity to commit a crime — must be sufficiently proximate to conduct that would satisfy the elements of the offence. In theparticular context of drug trafficking, an opportunity to commit an offence is offered when the officer says something to which theaccused can commit an offence by simply answering “yes”. The facts of each of the two appeals lead to different conclusions.

In A’s case, the police had a reasonable suspicion of drugtrafficking before providing the opportunity to commit an offence and therefore A was not entrapped. The officer had asked A if he wentby the name provided in the tip, which he did not deny. When the officer asked A, “You can help me out?”, A responded positively tothis use of language particular to the drug subculture, asking the officer, “what do you need?” Having connected the tip to the person onthe phone, the aspect of the tip that asserted illegality was corroborated by A’s understanding of drug-trafficking slang and willingness toengage in it.

In this context, these markers of reliability together sufficiently corroborated the initial tip to give rise to an objectivepossibility that A was involved in drug trafficking. Unlike in A’s case, there was nothing in W’s responses to suggest that the phonenumber was being used to sell drugs before the officer provided the opportunity to traffic. Therefore, W was entrapped. The policeofficer did not wait to see how W would respond to an investigative question that could have corroborated that W was engaged incriminal activity prior to providing the opportunity to commit the crime.

Although W confirmed that he went by the name provided inthe tip, he did not respond positively to slang particular to the drug subculture until after the opportunity had been provided. Thecorroboration of the name did not strengthen the reliability of the tip in its assertion of illegality. The police had no more than a bare tipthat someone using a particular phone number was selling drugs and this did not ground reasonable suspicion. Per Wagner C.J. and Moldaver, Côté and Rowe JJ. (dissenting in part): Both appeals should be dismissed. Attempting toapply the doctrine of entrapment as formulated in R. v.

Mack, (SCC), [1988] 2 S.C.R. 903, and R. v. Barnes, (SCC), [1991] 1 S.C.R. 449, to present-day dial-a-dope operations has revealed both doctrinal and policy concerns with howthe first branch of the doctrine is currently formulated. Both the individualized suspicion and the bona fide inquiry prongs of this branchhave failed to remain faithful to the balance struck in Mack and Barnes between protecting an individual’s legitimate interest in being leftalone by the state and effective law enforcement.

The bona fide inquiry prong must be revised to preserve this fundamental balance, torectify doctrinal issues within the prong itself, and to address policy concerns that have arisen with respect to the prong’s application.The revised framework will ensure that only the clearest of cases of intolerable state conduct are captured by the doctrine of entrapmentby refocusing the doctrine on its principled origin: abuse of process. Applying the revised framework, the police were engaged in a bonafide inquiry when they offered each A and W an opportunity to commit the offence of drug trafficking.

The individualized suspicion prong of the doctrine of entrapment has come under fire for leading to anomalous results,particularly in dial-a-dope cases where police call alleged drug dealers based on minimal information. This prong permits the police toprovide an individual with an opportunity to commit an offence if they reasonably suspect that the targeted individual is already engagedin criminal activity of the same type.

The concern expressed is that even though the investigating officer may not possess individualizedreasonable suspicion at the time they offer an opportunity, the police conduct in a typical dial-a-dope case cannot be said to rise to thelevel of an abuse of process warranting a stay of proceedings.

In an attempt to both adhere to the formal requirement of reasonablesuspicion and preserve the substantive abuse of process character of entrapment in dial-a-dope cases, some courts have drawn adistinction between taking an investigative step (which does not require reasonable suspicion) and presenting an opportunity to commitan offence (which does). The problem with the fine line distinction this approach draws is that it requires courts to closely parseundercover calls to determine whether an accused was entrapped.

This approach creates artificial distinctions based on the specific wordsused by the undercover officer rather than focusing on whether society would view the officer’s conduct, considered in context, assimply intolerable. These distinctions are often difficult to draw, and promote an approach that is akin to dancing on the head of a pin. The manner in which the majority proposes to dispose of the appeals provides a clear example of the dubious distinctionsthat flow from an application of the parsing approach.

In both cases, an undercover officer made a call based on information from ananonymous or a confidential source. Each call was answered by a then-unknown man.

Seemingly without surprise, each man confirmedor did not deny that he went by a name that, based on the officer’s information, belonged to a drug dealer operating out of the phone line.The only distinction between the cases is that the undercover officer in W’s case used a drop name before asking for a specific quantityof cocaine, whereas the undercover officer in A’s case used a drop name and waited for A to say “what do you need?” before asking fora specific quantity of cocaine.

The conduct of either undercover officer in these cases cannot be described as intolerable — the officerswere doing precisely what society would expect them to do upon receiving information about an alleged dial-a-dope operation. Areasonably informed observer in our society would be utterly bewildered by the majority’s conclusion that the conduct of the undercoverofficer in W’s case rises to the level of an abuse of process while the conduct of the undercover officer in A’s case is acceptable.

The problem in applying the bona fide prong as defined in Mack and Barnes to present-day dial-a-dope investigations is thatthe reasonable suspicion standard has evolved since those cases were decided. The bona fide inquiry prong permits the police torandomly approach citizens and offer them opportunities to commit offences, so long as the area within which they are operating isdefined with sufficient precision and they reasonably suspect that that type of crime is occurring in the area.

The incorporation of thistype of generalized location-based reasonable suspicion into the bona fide inquiry prong reflects the view that requiring the police tomeet a more stringent standard, such as individualized reasonable suspicion, would unduly hinder law enforcement efforts and thereby

fail to strike an appropriate balance between individual liberties and legitimate law enforcement. However, in R. v. Chehil, 2013 SCC 49,[2013] 3 S.C.R. 220, the notice that reasonable suspicion includes generalized suspicion that attaches to a particular activity or locationrather than to a specific person was rejected. Put differently, since Mack and Barnes were decided, individualization has come to definethe reasonable suspicion standard.

In this way, the more restrictive meaning ascribed to reasonable suspicion in Chehil has rendered itincompatible with the balance between individual liberties and legitimate law enforcement struck by the bona fide inquiry prong inBarnes. The solution to the doctrinal incoherence and policy concerns revealed by the dial-a-dope entrapment jurisprudence is torevise the bona fide inquiry prong. The revised framework will refocus the bona fide inquiry prong on its principled origin: abuse ofprocess.

Under the revised framework, the police should be found to be acting pursuant to a bona fide inquiry where they meet threerequirements. First, their investigation must have been motivated by genuine law enforcement purposes. Second, they must have had afactually-grounded basis for their investigation. They need to be able to point to a specific reason for their investigation beyond a merehunch. Third, their investigation must have been directed at investigating a specific type of crime within a tightly circumscribed location(whether physical or virtual).

Whether the precision of the location meets this threshold should be determined by reference to theoverarching question entrapment poses, that is, whether, in all the circumstances, society would view the inquiry as abusive. Inevitably,whether a particular type of location is sufficiently circumscribed for the purposes of a particular type of investigation will need to beconsidered on a location-by-location basis, until a jurisprudence develops.

Some considerations may include: the nature and seriousnessof the type of crime under investigation; the number of citizens that may be impacted by the investigation technique used by the police;the nature of the location under investigation; and the intrusiveness of the technique. The revised framework offers significant improvements to the bona fide inquiry prong by bringing it in line with recentdoctrinal developments, and by placing limitations on the scope of the location under investigation.

These limitations mitigate the riskthat police may be able to indiscriminately offer opportunities within an expansive area (i.e., to conduct large-scale random virtuetesting) and effectively address the risk of police targeting the vulnerable and marginalized and engaging in racial profiling. If the policedeliberately target the marginalized and vulnerable, it will amount to impermissible bad faith conduct.

In addition, by considering thenature of the location under investigation and the number of citizens potentially impacted, together with other relevant factors, reviewingcourts will be able to discern whether the risk of ensnaring the marginalized and vulnerable was so high in a given case that societywould not tolerate that risk, notwithstanding the legitimate law enforcement interests at stake. Neither A nor W were entrapped.

The police in both cases were acting in the course of bona fide inquiries into the cell phonenumbers in issue at the time they extended the respective opportunities to traffic in narcotics. Applying the new framework, there is nosuggestion that the police were not motivated by genuine law enforcement purposes, nor is there any evidence of bad faith. Further, thepolice had a factually-grounded basis for their investigations, having received information containing the names and phone number ofalleged drug dealers. Finally, their inquiry was sufficiently tightly circumscribed.

Drug trafficking is a serious crime and the number ofindividuals potentially impacted by the police conduct here is extremely low. The locations under investigation were phone numbersand, as a result, any concerns that racial profiling or other unconscious biases may have played a role in the investigations are highlyattenuated. Notably, the investigatory technique did not involve accessing any of the information on either A’s or W’s cell phone.

On thispoint, there is disagreement with the majority that a call to a potential dial-a-dope line engages the informational privacy interestprotected by s. 8 of Canadian Charter of Rights and Freedoms and accordingly does demand the imposition of a standard as robust as theindividualized reasonable suspicion standard developed in s. 8 jurisprudence. Dial-a-dope investigations do not involve search or seizureof the person’s phone, or any of the information it contains. All that dial-a-dope investigations involve is a conversation between anundercover officer and the person on the other end of the line.

The majority’s acceptance that the police may phone an individual andengage them in potentially extensive conversation without first holding reasonable suspicion belies its contention that a typicaldial-a-dope investigation engages the privacy interest that s. 8 of the Charter protects. The nature of the individual privacy interests atplay here are limited to individuals’ interest in being left alone by the state. It is difficult to imagine a less intrusive technique than thoseused in typical dial-a-dope cases like these ones.

In sum, the police conduct here cannot be said to be conduct that society would findintolerable. Cases Cited By Karakatsanis, Brown and Martin JJ. Applied: R. v. Mack, (SCC), [1988] 2 S.C.R. 903; R. v. Barnes, (SCC), [1991] 1 S.C.R.449; referred to: R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128; Amato v. The Queen, (SCC), [1982] 2S.C.R. 418; R. v. Campbell, (SCC), [1999] 1 S.C.R. 565; R. v. Nuttall, 2018 BCCA 479, 368 C.C.C. (3d) 1; R. v. Bayat,2011 ONCA 778, 280 C.C.C. (3d) 36; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R.250; R. v.

Simpson (1993), (ON CA), 79 C.C.C. (3d) 482; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v.Faqi, 2010 ABPC 157, 491 A.R. 194; R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897; Beck v. State of Ohio, 85 S.Ct. 223(1964); R. v. Swan, 2009 BCCA 142, 244 C.C.C. (3d) 108; R. v. McMahon, 2018 SKCA 26, 361 C.C.C. (3d) 429; R. v. Jir, 2010 BCCA497, 264 C.C.C. (3d) 64; R. v. Whyte, 2011 ONCA 24, 266 C.C.C. (3d) 5, aff’d 2011 SCC 49, [2011] 3 S.C.R. 364; R. v. Marakah, 2017SCC 59, [2017] 2 S.C.R. 608; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Wong, (SCC), [1990]3 S.C.R. 36; R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Mills,2019 SCC 22, [2019] 2 S.C.R. 320; R. v. Wilson, (SCC), [1990] 1 S.C.R. 1291; R. v. Jacques, (SCC),[1996] 3 S.C.R. 312; United States v. Gooding, 695 F.2d 78 (1982); Florida v. J. L., 529 U.S. 266 (2000); R. v. Olazo, 2012 BCCA 59,287 C.C.C. (3d) 379; R. v. Lal (1998), (BC CA), 130 C.C.C. (3d) 413; R. v. Townsend, [1997] O.J. No. 6516 (QL); R.v. Williams, 2010 ONSC 1698; R. v. Sawh, 2016 ONSC 2776; R. v. Pucci, 2018 ABCA 149, 359 C.C.C. (3d) 343; R. v. Clarke, 2018ONCJ 263; R. v.

Li, 2019 BCCA 344, 381 C.C.C. (3d) 363; R. v. Arriagada, [2008] O.J. No. 5791 (QL); R. v. Debot, (SCC), [1989] 2 S.C.R. 1140; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v.MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Vezina, 2014 CMAC 3, 461 N.R. 286; R. v. Murdock (2003), (ONCA), 176 C.C.C. (3d) 232; R. v. Ralph, 2014 ONCA 3, 313 O.A.C. 384; R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, aff’d 2010SCC 50, [2010] 3 S.C.R. 62; R. v. Gould, 2016 ONSC 4069; R. v. Marino-Montero, [2012] O.J. No. 1287 (QL); R. v. Izzard, [2012] O.J.No. 2516 (QL); R. v.

Gladue, 2012 ABCA 143, 285 C.C.C. (3d) 154; R. v. Stubbs, 2012 ONSC 1882; R. v. Gladue, 2011 ABQB 194, 54Alta. L.R. (5th) 84; R. v. Coutre, 2013 ABQB 258, 557 A.R. 144.

By Moldaver J. (dissenting in part) R. v. Mack, (SCC), [1988] 2 S.C.R. 903; R. v. Barnes, (SCC), [1991] 1 S.C.R. 449; R. v.Campbell, (SCC), [1999] 1 S.C.R. 565; R. v. Ahluwalia (2000), (ON CA), 149 C.C.C. (3d) 193; R.v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Le, 2016 BCCA 155, 28 C.R. (7th) 187; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R.220; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Henneh, 2017 ONSC 4835, [2017] O.J. No. 7173 (QL); R. v.MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Looseley, [2001] UKHL 53, [2001]4 All E.R. 897; R. v.

Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546; Peart v. Peel Regional Police Services Board (2006), (ON CA), 43 C.R. (6th) 175; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621;R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Plant, (SCC), [1993] 3 S.C.R. 281. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, s. 8. Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 2(1) “traffic”, 5(1). Authors Cited Ashworth, Andrew. “What is Wrong with Entrapment?”, [1999] Sing. J.L.S. 293. Bronitt, Simon. “Sang is Dead, Loosely Speaking”, [2002] Sing.

J.L.S. 374. Bronitt, Simon. “The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canadaand Europe” (2004), 33 Comm. L. World Rev. 35. De Sa, Chris. “Entrapment: Clearly Misunderstood in the Dial-a-Dope Context” (2015), 62 Crim. L.Q. 200. MacFarlane, Bruce A., Robert J. Frater and Croft Michaelson. Drug Offences in Canada, 4th ed. Toronto: Thomson Reuters, 2019(loose-leaf updated December 2019, release 6). McLachlin, Beverley. “Courts, Transparency and Public Confidence — To the Better Administration of Justice” (2003), 8 Deakin L.Rev. 1.

Murphy, Brendon, and John Anderson. “After the Serpent Beguiled Me: Entrapment and Sentencing in Australia and Canada” (2014),39 Queen’s L.J. 621. Murphy, Brendon, and John Anderson. “‘Mates, Mr Big and the Unwary’: Ongoing Supply and its Relationship to Entrapment” (2007),19 C.I.C.J. 5. Ormerod, David, and Andrew Roberts. “The trouble with Teixeira: Developing a principled approach to entrapment” (2002), 6 Int’l J.Evidence & Proof 38. Penney, Steven. “Entrapment Minimalism: Shedding the ‘No Reasonable Suspicion or Bona Fide Inquiry’ Test” (2019), 44 Queen’s L.J.356.

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APPEAL by Javid Ahmad from a judgment of the Ontario Court of Appeal (Hourigan and Brown JJ.A. and Himel J. (adhoc)), 2018 ONCA 534, 141 O.R. (3d) 241, 362 C.C.C. (3d) 36, [2018] O.J. No. 3091 (QL), 2018 CarswellOnt 9268 (WL Can.),affirming the conviction entered by Allen J., 2014 ONSC 3818, [2014] O.J. No. 3152 (QL), 2014 CarswellOnt 9012 (WL Can.), and thedismissal of the application for a stay of proceedings, 2015 ONSC 652, [2015] O.J. No. 1519 (QL), 2015 CarswellOnt 4286 (WL Can.).Appeal dismissed.

APPEAL by Landon Williams from a judgment of the Ontario Court of Appeal (Hourigan and Brown JJ.A. and Himel J. (adhoc)), 2018 ONCA 534, 141 O.R. (3d) 241, 362 C.C.C. (3d) 36, [2018] O.J. No. 3091 (QL), 2018 CarswellOnt 9268 (WL Can.), settingaside the stay of proceedings entered by Trotter J., 2014 ONSC 2370, 11 C.R. (7th) 110, [2014] O.J. No. 1840 (QL), 2014 CarswellOnt5005 (WL Can.). Appeal allowed, Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting. Michael W. Lacy and Bryan Badali, for the appellant Javid Ahmad. Owen Goddard and Janani Shanmuganathan, for the appellant Landon Williams.

Chris Greenwood and David Quayat, for the respondent.

Marilyn E. Sandford, Q.C., Michael Sobkin and Kate Oja, for the intervener the British Columbia Civil LibertiesAssociation. Ingrid Grant and Daniel Goldbloom, for the intervener the Criminal Lawyers’ Association of Ontario. Martine Sallaberry and Norm Lipinski, for the intervener the Canadian Association of Chiefs of Police. Alison M. Latimer, for the intervener the Independent Criminal Defence Advocacy Society. The judgment of Abella, Karakatsanis, Brown, Martin and Kasirer JJ. was delivered by Karakatsanis, Brown and Martin JJ. — I.

Introduction [1] As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public theyserve and protect. At the same time, police require various investigative techniques to enforce the criminal law. While giving widelatitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods. [2] For that reason, this Court in R. v. Mack, (SCC), [1988] 2 S.C.R. 903, sanctioned, but narrowlyconfined, the power of police to step beyond their normal investigative role and tempt people into committing criminal offences.

Wherethey do so without reasonable suspicion, or where they go further and induce the commission of a criminal offence, they commitentrapment. Without a requirement of reasonable suspicion, the police could target individuals at random, thereby invading people’sprivacy, exposing them to temptation and generating crimes that would not otherwise have occurred.

Such conduct threatens the rule oflaw, 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. [3] These appeals concern the application of this settled doctrine to investigations of suspected dial-a-dope operations,in which drug traffickers use cell phones to connect with their customers and sell them illicit drugs.

Specifically, we are asked todetermine when and how reasonable suspicion is established when an officer receives a tip or information that a phone number may beused for drug dealing. [4] We say our jurisprudence affirms that police cannot offer a person who answers a cell phone the opportunity tocommit an offence without having formed reasonable suspicion that the person using that phone, or that phone number, is engaged incriminal activity.

Whether the police are targeting a person, place or phone number, the legal standard for entrapment is a uniform one,requiring reasonable suspicion in all cases where police provide an opportunity to commit a criminal offence. Reasonable suspicion is afamiliar legal standard that provides courts with the necessary objective basis on which to determine whether the police have justifiedtheir actions.

A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonablesuspicion. [5] In each of these two appeals, the police received an unsubstantiated tip that a phone number was associated withdrug dealing. An officer called the number and, after a brief conversation, requested drugs. In Javid Ahmad’s case, the trial judge,Allen J., concluded that Ahmad was not entrapped because the police did not offer him an opportunity to traffic drugs until they hadsufficiently corroborated the tip in the course of the conversation (2015 ONSC 652).

In Landon Williams’ case, Trotter J. found thatWilliams was entrapped because the police provided him an opportunity to sell cocaine before forming a reasonable suspicion that hewas engaged in drug trafficking (2014 ONSC 2370, 11 C.R. (7th) 110). The Court of Appeal dismissed Ahmad’s appeal and allowed theCrown appeal in Williams’ case (2018 ONCA 534, 141 O.R. (3d) 241). [6] Applying Mack, we agree with both trial judges. Ahmad was not entrapped, but Williams was. We would thereforedismiss Ahmad’s appeal but allow Williams’ appeal. II. Background A.

Ahmad [7] Detective Constable Michael Limsiaco received information from another officer that a person named “Romeo” wasselling drugs using a specified phone number. D.C. Limsiaco called the number without investigating the reliability of the information orhow the other officer had procured it. D.C. Limsiaco’s understanding was that the other officer had received the tip from a confidentialsource. [8] After a brief conversation, the officer asked for “2 soft”, meaning two grams of powder cocaine. The man on theline subsequently agreed to meet to effect the sale.

The officer went to the meeting place, called the number again, met the man whoanswered the phone, and exchanged $140 for two small plastic bags of cocaine. Police arrested and searched the man, later revealed to beAhmad. On his person, police found an envelope with the handwritten word “Romeo” on it containing cash, the $140, the cell phone thathad been used to set up the transaction, and two small bags of powder cocaine. In Ahmad’s backpack, the police found a large quantity ofcocaine and three envelopes containing cash. [9] Allen J. concluded that Ahmad was not entrapped.

Ahmad was convicted of one count of possession of cocaine forthe purpose of trafficking, and two counts of possession of the proceeds of crime. B. Williams [10] Detective Constable Brooke Hewson, a member of the drug squad, received an information package from anotherofficer about “Jay”, who was alleged to be selling cocaine in a certain area in Toronto. The package identified “Jay” as Landon Williams

and included a collection of information about him, including that, according to a tip, he was a “cocaine dealer” who worked in a certainarea. The record discloses that the tip was from a confidential source of unknown reliability but not what the tip actually said, howWilliams was connected to the name “Jay”, or the currency of the information. [11] D.C. Hewson did not ask about the reliability of the source or the currency of the information. She had been involvedin Williams’ arrest 20 months earlier for trafficking cocaine, although Williams ultimately pleaded guilty to simple possession.

She hadnot known him to use the name “Jay”. [12] Detective Constable Tony Canepa was given some of this information and called the number. The man who answeredthe phone confirmed his name was “Jay”. The officer said that he needed “80 . . . [h]ard”, meaning $80 worth of crack cocaine, and theman replied that they should meet at a particular intersection. The officer met the man, later revealed to be Williams, and exchanged $80for the crack cocaine. Eleven days later, he arranged a second transaction and made the same purchase.

The next month, police arrestedWilliams. [13] At the end of the Crown’s case, Williams acknowledged that the evidence established his guilt on two counts oftrafficking cocaine and two counts of possession of the proceeds of crime. Trotter J. found there was no reasonable suspicion before theofficer provided the opportunity to commit a crime and entered a stay. C. Court of Appeal Decision [14] The Crown appeal from the stay in Williams’ case and the defence appeal from the conviction in Ahmad’s case wereheard together.

Hourigan J.A., writing for himself and Brown J.A., held that entrapment was not made out for either Ahmad or Williams.He concluded that where reasonable suspicion relates to the phone number itself, the police can provide opportunities to commit offencesto a person associated with that phone number, even if they do not also have a reasonable suspicion about the person who answers thephone. Himel J. (ad hoc) concurred in the result, but disagreed with the majority’s differentiation between reasonable suspicion over aphone number and reasonable suspicion over the individual who answers that phone. III.

The Entrapment Doctrine A. The Principles of the Entrapment Doctrine in Mack and Barnes [15] Over 30 years ago, this Court’s decision in Mack settled the law of entrapment in Canada. It set out two alternativebranches, either of which is sufficient to ground an accused’s claim of entrapment and justify a stay of proceedings: There is, therefore, entrapment when: (

a) the authorities provide an opportunity to persons to commit an offence without reasonablesuspicion or acting mala fides . . . or, (

b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyondproviding an opportunity and induce the commission of an offence. [p. 959] [16] At the most general level, the doctrine exists because “[i]t is a deeply ingrained value in our democratic system thatthe ends do not justify the means” (Mack, at p. 938). Some of those means are unacceptable in a free society with strong notions offairness, decency, and privacy.

Although police must be afforded latitude, entrapment is a species of abuse of process because policeinvolvement in the commission of a crime can bring the administration of justice into disrepute. [17] Mack determined that the purpose and rationale of the entrapment doctrine lies in a court’s inherent jurisdiction toprevent an abuse of its own processes. Entrapment is not a substantive defence leading to an acquittal, because in most cases the essentialelements of the offence will be satisfied, even where entrapment occurred.

Rather, the appropriate remedy is a stay of proceedingsbecause “while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction”and a conviction would therefore bring the administration of justice into disrepute (Mack, at p. 944 (emphasis deleted), citing R. v.Jewitt, (SCC), [1985] 2 S.C.R. 128, at p. 148).

Such a remedy also affirms the primacy of personal freedom: the statesimply has no business unjustifiably intruding into individuals’ private lives, randomly testing their virtue, and manufacturing crime(Mack, at p. 941). [18] Some crimes, however, are particularly difficult to investigate because they are “consensual” (such as drugtrafficking), victimize those who are reluctant or unable to report them (such as child luring), or lead to such great harm that they must beactively prevented (such as terrorism) (Mack, at p. 916; Amato v. The Queen, (SCC), [1982] 2 S.C.R. 418, at p. 457, perEstey J., dissenting; A.

Ashworth, “What is Wrong with Entrapment?”, [1999] Sing. J.L.S. 293, at pp. 293-94). It is therefore in thepublic interest to allow police the flexibility to develop effective, proactive law-enforcement measures to suppress crime. [19] To reconcile these competing imperatives, the Court imposed a safeguard against opportunity-based entrapment.

Onthe first branch in Mack, at issue in these appeals, police may present an opportunity to commit a crime only upon forming reasonablesuspicion that either: (1) a specific person is engaged in criminal activity; or (2) people are carrying out criminal activity at a specificlocation, sometimes referred to as a bona fide inquiry (Mack, at pp. 956 and 959; confirmed in R. v. Barnes, (SCC),[1991] 1 S.C.R. 449, at p. 463). [20] The reasons in Mack make clear that a bona fide inquiry into a location is premised upon and tethered to reasonablesuspicion.

An investigation is “bona fide” where the police have a reasonable suspicion over a location or area, as well as a genuinepurpose of investigating and repressing crime. A bona fide investigation is not a separate and freestanding way for police to entrap anindividual, but a means of expressing the threshold of reasonable suspicion in a location. The offer of an opportunity to commit a crimemust always be based upon a reasonable suspicion of particular criminal activity, whether by a person, in a place defined with sufficientprecision, or a combination of both. [21] The Court affirmed these principles in Barnes.

There, the Court found the police had engaged in a bona fide inquiryby providing people within an area of the Granville Mall in Vancouver the opportunity to sell drugs. Their reasonable suspicion, theCourt held, was grounded on objective extrinsic evidence that showed significant drug dealing activity in the area (Barnes, at pp. 460-

62). This provided an explanation, which a court could meaningfully review, for why people were being targeted in that area. [22] This framework balances and reconciles important public interests. The rule of law, and the need to protect privacyinterests and personal freedom from state overreach are balanced against the state’s legitimate interest in investigating and prosecutingcrime by permitting but also constraining entrapment techniques (Mack, at pp. 941-42). [23] We see no reason to alter this carefully calibrated balance struck in Mack and affirmed in Barnes.

The entrapmentframework has proved workable for decades in a variety of contexts, including drug trafficking (R. v. Campbell, (SCC),[1999] 1 S.C.R. 565, at para. 21), terrorism (R. v. Nuttall, 2018 BCCA 479, 368 C.C.C. (3d) 1, at paras. 417-43), and child luring (R. v.Bayat, 2011 ONCA 778, 280 C.C.C. (3d) 36, at paras. 15-23). It has stood the test of time, furnishing a principled, stable and generallyapplicable doctrine that is fully capable of adapting to a variety of circumstances and responding to the evolution of crime and policetactics. No principled reason supports departing from it. B.

Objective Reasonable Suspicion Ensures Judicial Oversight Over Police Conduct [24] In every context, the reasonable suspicion standard ensures courts can conduct meaningful judicial review of what thepolice knew at the time the opportunity was provided (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 26 and 58; R. v.MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 41).

This standard requires the police to disclose the basis for their belief and toshow that they had legitimate reasons related to criminality for targeting an individual or the people associated with a location (K.Roach, “Entrapment and Equality in Terrorism Prosecutions: A Comparative Examination of North American and EuropeanApproaches” (2011), 80 Miss. L.J. 1455, at pp. 1472-73; Ashworth, at pp. 304-5).

An objective standard like reasonable suspicion allowsfor exacting curial scrutiny of police conduct for conformance to the Canadian Charter of Rights and Freedoms and society’s sense ofdecency, justice, and fair play because it requires objectively discernible facts. As is the case with warrantless searches, “the trial judge[must be] . . . in a position to ascertain [these objective facts], and not bound by the personal conclusions of the officer who conductedthe [investigation]” (P. Sankoff and S.

Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123,at p. 126 (emphasis added)). This is essential to upholding the rule of law and preventing the state from arbitrarily infringing individuals’privacy interests and personal freedoms (Chehil, at para. 45). [25] Doherty J.A., in R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont.

C.A.), at pp. 502-3,makes the point compellingly: a reasonable suspicion standard is necessary where there is the fundamental need to balance society’sinterest in the detection and punishment of crime with its interest in maintaining individual freedoms. A careful balancing of interests isas relevant in entrapment as it is in warrantless searches and detention. In each case, the reasonable suspicion standard is uniquely“designed to avoid indiscriminate and discriminatory” police conduct (Chehil, at para. 30; see also paras. 3, 26 and 47; R. v.

Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 75-77 and 165; Simpson, at p. 502). This is particularly critical in cases ofentrapment, since entrapment is a “breeding ground for racial profiling” (D. M. Tanovich, “Rethinking the Bona Fides of Entrapment”(2011), 43 U.B.C.L. Rev. 417, at p. 432), and has “a disproportionate impact on poor and racialized communities” (pp. 417-18).

Courtsmust be able to assess the extent to which the police, in seeking to form reasonable suspicion over a person or a place, rely upon overtlydiscriminatory or stereotypical thinking, or upon “intuition” or “hunches” that easily disguise unconscious racism and stereotyping (T.Quigley, Annotation to R. v. Sterling (2004), (ON SC), 23 C.R. (6th) 54, at p. 55; R. v.

Faqi, 2010 ABPC 157, 491A.R. 194, at para. 14; Tanovich, at pp. 437-38; MacKenzie, at paras. 64-65). [26] Requiring reasonable suspicion before tempting individuals into committing crimes also reflects Canadian law’scautious approach to the expansion of police powers. As a significant instance of that approach, our law does not consider whether thetargeted accused was predisposed to commit the crime (Mack, at pp. 924 and 951-56).

Allowing objectively improper police conduct tobe justified by reference to the predisposition of the accused would “permit unequal treatment” (Mack, at p. 955), and risks imprisoningpeople even when their fundamental rights and procedural guarantees have been disregarded. There is a “fundamental inequality inherentin an approach that measures the permissibility of entrapment by reference to the predisposition of the accused” (Mack, at p. 955). [27] People are not protected against random virtue testing if we assume that entrapment occurs only when virtuous peoplewould be tempted to commit crimes.

The opportunity-based branch of the Mack test therefore establishes that police cannot subjectanyone to random virtue testing — virtuous or non-virtuous, predisposed or non-predisposed — without reasonable suspicion. Manycommentators support the test established in Mack for this very reason — that is, because its objective threshold protects everyone fromrandom testing (Ashworth, at p. 305; D. Ormerod and A. Roberts, “The trouble with Teixeira: Developing a principled approach toentrapment” (2002), 6 Int’l J. of Evidence & Proof 38, at pp. 46-48; S.

Bronitt, “The Law in Undercover Policing: A Comparative Studyof Entrapment and Covert Interviewing in Australia, Canada and Europe” (2004), 33 Comm. L. World Rev. 35, at p. 78; Roach, atp. 1462; D. Stuart, Canadian Criminal Law: A Treatise (7th ed. 2014), at p. 653). [28] Providing individuals the opportunity to commit offences without the foundation of a reasonable suspicion alsounacceptably increases the likelihood that people will commit crimes when they otherwise would not have. The risk is at its highestwhen the person given the opportunity is comparatively vulnerable or otherwise marginalized.

Random virtue testing therefore violatesthe principle that it is wrong for the police to manufacture crime because it “prey[s] on the weakness of human nature” to enticeindividuals into offending (R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897, at para. 58, per Lord Hoffmann). Marginalizedpeople, with the limited resources they possess, will rarely, if ever, be able to meet the high burden of proving bad faith. There will rarelybe evidence of intentional racial profiling or targeting of the vulnerable.

Conversely, the test in Mack — grounded in reasonablesuspicion — is attainable for everyone, designed as it is to accommodate the “qualities of humanness which all of us share” (Mack, atp. 940). It seeks to protect the justice system and preserve the rule of law by ensuring that all individuals, predisposed or not, areprotected from improper police conduct (Mack, at p. 961). [29] A standard of “bad faith” police conduct in this branch of the entrapment doctrine is no substitute for the objectivestandard of reasonable suspicion, which is reviewable by an independent assessor.

A test of “bad faith” cedes primacy to the police’s ownassertions. Reasonable suspicion insists on an objective assessment of the information the police actually had. Reasonable suspicion thusshifts the protection of the public against unreasonable intrusions from the shadows of police discretion to the light of curial scrutiny. Asdescribed in the context of warrantless arrests by the Supreme Court of the United States in Beck v. State of Ohio, 85 S.Ct. 223 (1964), at

p. 229: We may assume that the officers acted in good faith in arresting the petitioner. But “good faith on the part of the arresting officers is not enough”. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police. [Citation omitted.] [ 30 ] Further, and unlike reasonable suspicion, a standard of bad faith fails to give meaningful guidance to police officers called upon to determine whether they can offer an opportunity to commit a crime.

Reasonable suspicion is an ex ante standard that has stood the test of time, is “readily applicable in practice”, and is familiar and “meaningful to the police and trial judges” ( Kang-Brown , at para. 164 , per Deschamps J., dissenting but not on this point). It fosters in police officers a sense of the importance of obtaining objective evidence of criminal activity before offering an opportunity to commit a crime, and of being alive to indicators that suggest that their intuitions or hunches may be wrong ( Chehil , at paras. 33-34 ).

And it compels police to disclose objective evidence that is amenable to exacting review, precluding them from relying on peremptory assertions of suspicion. [ 31 ] Any lower bar — and certainly any bar that would allow the police to respond to bare tips by immediately offering an opportunity to commit a crime — would effectively be no bar at all. [ 32 ] That this is so is made plain by asking the following question: if a name and number were sufficient to allow police to intrude on protected interests, what less could possibly be required? The police need at least a number to make the phone call.

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 reasonably informed observer would be dismayed to learn that police are permitted to act on this information in this way simply by virtue of having received it. Just as the hunch or “mere suspicion” of one police officer cannot become something more simply because it was shared with other officers ( R. v.

Swan , 2009 BCCA 142 , 244 C.C.C. (3d) 108, at para. 23 ), a source’s hunch does not transform into something more once placed into the hands of the police ( R. v. McMahon , 2018 SKCA 26 , 361 C.C.C. (3d) 429, at paras. 60 and 62 ; R. v. Jir , 2010 BCCA 497 , 264 C.C.C. (3d) 64, at para. 46 , per Groberman J.A., concurring; R. v. Whyte , 2011 ONCA 24 , 266 C.C.C. (3d) 5, at para. 17 , aff’d 2011 SCC 49 , [2011] 3 S.C.R. 364).

We see no basis — in this Court’s jurisprudence or elsewhere — for abandoning the reasonable suspicion standard and granting police unrestricted licence to offer people the opportunity to commit crimes, free from independent and meaningful judicial oversight. IV. Issues [ 33 ] Several issues arise when entrapment is examined in the dial-a-dope context: A. Can a phone number — a virtual place — qualify as a location for the purposes of entrapment? B. What circumstances can give rise to reasonable suspicion in the dial-a-dope context? C.

How should courts review the conversation between police and the accused in deciding whether reasonable suspicion has been established and when the opportunity to offend was offered? D. What constitutes provision of an opportunity to traffic in drugs during a phone call? The answers to these questions must be determined in light of the purposes of the doctrine of entrapment. V. Analysis A.

Can a Phone Number Qualify as a “Place” Over Which Police May Form Reasonable Suspicion? [ 34 ] These appeals require us to consider how the reasonable suspicion standard applies when police are investigating a phone number, or another virtual means of communication between people, like a message board on a website. The parties agree that a phone number can qualify as a “place” for the purposes of the entrapment doctrine. The intervener the Independent Criminal Defence Advocacy Society disagrees, submitting that there is an enhanced privacy interest in virtual places as compared to physical places.

Alternatively, it says a multi-factored analysis should inform the consideration of whether a place has been adequately defined. The British Columbia Civil Liberties Association adds that it is concerned that places, both physical and virtual, may be defined too broadly to allow the entrapment doctrine to be sufficiently protective. [ 35 ] The difficulty, of course, is that technology aids in the commission of crime. And in order to investigate and detect those crimes, police must also make use of technology.

Further, while some virtual spaces may be too broad to support a sufficiently particularized reasonable suspicion, that concern does not arise where the space is a single phone number. As we will explain, reasonable suspicion can attach to a phone number, because it is precisely and narrowly defined. [ 36 ] Of course, a phone number is not the same thing as a public physical location.

A phone is a means of private communication between persons, and calling a number, or exchanging text messages, is an inherently private activity (unlike conversing on a busy downtown Vancouver street, as in Barnes , where we might expect chance encounters with the state). A phone number provides access to an intensely private virtual space. We cultivate personal, work and family relationships through our phones; they are a portal of immediate access reserved for the select few closest to us. We carefully guard access to that space by choosing to whom we disclose our phone number and with whom we converse.

Similarly, this Court has held that a person reasonably expects privacy in most digital communications, precisely because conversations over text message, social media messaging, or email, are not analogous to a “public post” ( R. v. Marakah , 2017 SCC 59 , [2017] 2 S.C.R. 608, at paras. 28 and 34-36 , per McLachlin C.J., and at paras. 106 and 116, per Moldaver J., dissenting).

Virtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives, because of the breadth of some virtual places (for example, social media websites), the ease of remote access to a potentially large number of targets that technology provides law enforcement, and the increasing prominence of technology as a means by which individuals conduct their personal lives.

[37] It follows that state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over apublic space. Technology and remote communication significantly increase the number of people to whom police investigators canprovide opportunities, thereby heightening the risk that innocent people will be targeted. Online anonymity allows police to increasinglyfabricate identities and “pose” as others to a degree that would not be possible in a public space like the Granville Mall.

And they can doso anytime and anywhere, since cell phones are a 24/7 gateway into a person’s private life. Individuals must be able to enjoy that privacyfree from state intrusion, subject only to the police meeting an objective and reviewable standard allowing them to intrude (see Barnes, atp. 481, per McLachlin J., dissenting but not on this point). [38]

Section 8 jurisprudence recognizes that at the “heart of liberty in a modern state” is the need to “set a premium” onthe ability of its citizens to carve out spaces in their lives, sanctuaries where they may interact freely, unhindered by the possibility ofencounters with the state (R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, at para. 67; R. v. Wong, (SCC),[1990] 3 S.C.R. 36, at p. 53; see also R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at pp. 427-28; R. v. Fearon, 2014 SCC77, [2014] 3 S.C.R. 621, at para. 114, per Karakatsanis J., dissenting).

In the words of McLachlin C.J. (writing extra-judicially), “Theright ‘to be let alone’ and to define a protected sphere of individual autonomy within which neither one’s neighbours nor the state canintrude without permission, is an important aspect of fundamental human dignity” (Hon. B. McLachlin, “Courts, Transparency andPublic Confidence — To the Better Administration of Justice” (2003), 8 Deakin L. Rev. 1, at p. 3, citing S. D. Warren and L. D.Brandeis, “The Right to Privacy” (1890), 4 Harv. L. Rev. 193, at p. 195).

The human condition flourishes as the fear of state intrusionfades. [39] Relatedly, the entrapment doctrine ensures Canadians can “go about their daily lives without courting the risk thatthey will be subjected to the clandestine investigatory techniques of agents of the state” (Barnes, at p. 480, per McLachlin J., dissenting).It is therefore important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity tocommit a crime.

As Lamer C.J. noted in Barnes, at pp. 462-63, a reasonable suspicion can attach to a place only if it is defined withsufficient precision and “in many cases, the size of the area itself may indicate that the investigation is not bona fide.” Given that such aninquiry hinges on the presence of reasonable suspicion, the location must be “sufficiently particularized” (Chehil, at para. 30; see alsoS. Penney, “Standards of Suspicion” (2018), 65 Crim.

L.Q. 23, at pp. 24 and 26). [40] The Crown stresses that we now find ourselves in a virtual age; while drugs used to be bought and sold in specificlocations, they are now delivered into the hands of the buyer in a transaction that involves modern technology. We accept thatcommunicating in a virtual space adds “a layer of unpredictability” (R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 23, perBrown J.). But it is this very unpredictability that necessitates applying the doctrine of entrapment in a way that ensures the freedomsprotected in a physical space are also protected in our virtual communications.

Drug dealing over the phone may well be difficult todetect, but individuals also have considerable privacy interests in their phones that must be protected from arbitrary state intrusion. Therisks posed to individual interests, although different, are not ameliorated where police investigate virtual communications as opposed toa physical space.

We say, to properly protect these interests, police must have reasonable suspicion over an individual or a well-definedvirtual space, like a phone number, before providing an opportunity to commit a crime. [41] We emphasize that the virtual space in question must be defined with sufficient precision in order to groundreasonable suspicion. Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed theirscope so that the purview of their inquiry is no broader than the evidence allows.

To ensure that random virtue testing is avoided, factorssuch as (but not limited to) the following may be helpful: the seriousness of the crime in question; the time of day and the number ofactivities and persons who might be affected; whether racial profiling, stereotyping or reliance on vulnerabilities played a

part in theselection of the location; the level of privacy expected in the area or space; the importance of the virtual space to freedom of expression;and the availability of other, less intrusive investigative techniques. [42] As previously explained, an individual phone number is sufficiently precise and narrow to qualify as a place for thepurposes of the first branch of the entrapment doctrine.

We agree with Himel J.: “. . . phones are increasingly personal” and, in mostcases, there will be “little real difference between information that the police obtain about the phone line and information that theyobtain about the person who answers it” (C.A. reasons, at para. 109). Typically, and as Himel J. noted, it will be a distinction without adifference, since reasonable suspicion over one grounds reasonable suspicion over the other.

We therefore ought not to force categoricaldistinctions based upon the form such information takes — that is, information about people and information about their location (orphone numbers). Ultimately, it is a person before the court as an accused. And the question will always be the same: are there objectivefactors supporting a reasonable suspicion of drug trafficking by the individual answering the cell phone when police provide theopportunity to commit such a crime?

Those factors may relate in part to reasonable suspicion of the individual, or of the phone numberitself, or to both. [43] Finally, we note that lower courts have already found that police can conduct bona fide inquiries into virtual spacesother than phone numbers. We repeat, however, that the serious risk of random virtue testing in such inquiries requires that the virtualspace be defined narrowly and with precision (Barnes, at p. 463). In our view, entire websites or social media platforms will rarely, ifever, be sufficiently particularized to support reasonable suspicion.

To permit police to target wide virtual spaces is inconsistent withMack and its threshold of reasonable suspicion, and disregards that legitimate communities exist as much online as they do in thephysical world. B. How Does Reasonable Suspicion Apply to Dial-a-Dope Investigations? [44] As we have explained, reasonable suspicion plays a central role in the first branch of the entrapment doctrine. Policemay provide an opportunity to commit a crime only upon forming reasonable suspicion. But what does reasonable suspicion mean?

Theappellants say it is an objective and rigorous standard that cannot be grounded in a bald tip. The Crown, however, describes a lowerstandard, capable of being satisfied by a single tip about a responsive target who appears to understand slang particular to the drugsubculture. [45] Reasonable suspicion is, by definition, an objective standard that protects individuals’ interests and preserves the ruleof law by ensuring courts can meaningfully review police conduct. For this reason, it is fundamental to restraining the power of police to

provide opportunities to commit crimes. That said, reasonable suspicion is not “unduly onerous” (Mack, at p. 958). As a lower standardthan reasonable grounds, it allows police additional flexibility in enforcing the law and preventing crime.

In the entrapment doctrine,reasonable suspicion emerges from the first branch’s concern with police behaviour that falls short of actually inducing an offence, yetnonetheless constitutes police involvement in the commission of a crime. [46] While the reasonable suspicion standard requires only the possibility, rather than probability, of criminal activity(Chehil, at para. 27), it must also be remembered that it provides police officers with justification to engage in otherwise impermissible,intrusive conduct such as searches and detentions.

It is therefore subject to “rigorous”, “independent” and “exacting” judicial scrutiny(Chehil, at paras. 3 and 26). The suspicion must be focused, precise, reasonable, and based in “objective facts that stand up toindependent scrutiny” (MacKenzie, at para. 74). In Simpson, at pp. 500-503, the Court of Appeal for Ontario, drawing from U.S.jurisprudence, this Court’s application of reasonable suspicion in Mack, and the articulable cause doctrine in R. v.

Wilson, (SCC), [1990] 1 S.C.R. 1291, summarized reasonable suspicion as requiring a “constellation of objectively discernible facts” givingthe officer “reasonable cause to suspect” that a certain kind of crime was being committed by a particular person or in a particular place.This definition continues to be applied by this Court (see, e.g., R. v. Jacques, (SCC), [1996] 3 S.C.R. 312, atparas. 24-25; Kang-Brown, at para. 76; Chehil, at para. 3).

Ultimately, the evidence said to satisfy reasonable suspicion must be carefullyexamined. [47] Although innocent explanations and exculpatory information remain relevant to an assessment of reasonablesuspicion, the police are not required to undertake further investigation to rule out those explanations (Chehil, at paras. 33-34).Nevertheless, the facts must indicate the possibility of criminal behaviour: characteristics that apply broadly to innocent people are notmarkers of criminal activity (Chehil, at para. 35). Mere hunches and intuition will not suffice (Barnes, at p. 460).

However, an officer’straining or experience can make otherwise equivocal information probative of the presence of criminal activity (Chehil, at para. 47). [48] Reasonable suspicion is also individualized, in the sense that it picks an individual target — whether a person, anintersection or a phone number — out of a group of persons or places. As noted above, the criminal law’s objections to “generalizedsuspicion” hinge on its embrace of “such a number of presumably innocent persons as to approach a subjectively administered, randombasis” (Chehil, at para. 30, quoting United States v.

Gooding, 695 F.2d 78 (1982), at p. 83). When an objectively grounded suspicioninstead attaches to a “sufficiently particularized constellation of factors” (Chehil, at para. 30), like those relating to an individual phonenumber, the objection falls away. In other words, the ill sought to be remedied by individualization is police intruding on the protectedinterests of all persons in broadly or poorly defined locations, especially on the basis of generalized evidence (Kang-Brown, at para. 73,per Binnie J.).

This is a complete answer to our colleague’s concern about dissonance between the entrapment framework set out inMack and Barnes and the reasonable suspicion standard required by Chehil. [49] The target to which reasonable suspicion must attach varies with the context. It must be borne in mind that in casessuch as Chehil and Kang-Brown, this Court was concerned with ensuring that reasonable suspicion for a sniffer-dog search of anindividual is sufficiently targeted.

In that particular context — the physical search of a person by a police dog — reasonable suspicioncannot attach to a location, but only to a specific person or, at most, to a number of closely linked people (Kang-Brown, at para. 73).Indeed, the reasonable suspicion standard was selected in Mack because, as later emphasized in Chehil, while it is a uniform “commonstandard that arises in a number of contexts”, it can be adapted to suit a variety of circumstances (Chehil, at para. 21). [50] Each of these appeals originated with a single tip of unknown reliability.

Although a sole tip devoid of predictiveinformation cannot meet the reasonable suspicion standard, such a tip can be sufficiently corroborated such that the standard is met (seeFlorida v. J. L., 529 U.S. 266 (2000), at pp. 270-71).

Such corroboration must suggest that the “tip [is] reliable in its assertion ofillegality, [and] not just in its tendency to identify a determinate person” (p. 272). [51] Police practice itself shows that, whether the police are investigating an individual or a phone number, various stepscan be taken upon receiving a tip associating a phone number with dial-a-dope activity before acting on it by calling the number. Policemay wait to see if more tips are received about the same person or phone number.

Police may cross-reference the person’s name orphone number to find other connections between it and criminal activity. Police may also consider any details contained in the tip or, ifknown, the reliability of the informant. For example, does the source have a criminal record? How long have the police used the source?Has the source provided credible tips in the past? Is there a possible motivation for giving a false tip (as in R. v. Olazo, 2012 BCCA 59,287 C.C.C. (3d) 379, at para. 7, where the informant gave the tip to avoid a traffic ticket)? Is the source’s information first-hand? (See R.v.

Lal (1998), (BC CA), 130 C.C.C. (3d) 413 (B.C.C.A.), at paras. 11 and 27; R. v. Townsend, [1997] O.J. No. 6516(QL) (C.J. (Gen. Div.)), at para. 5; R. v. Williams, 2010 ONSC 1698 (Williams (2010)), at para. 12 ; R. v. Sawh, 2016 ONSC2776, at para. 8 ). As in Mack, whether a tip can generate reasonable suspicion will also be connected to the currency of theinformation (p. 958). [52] In short, there are various ways in which the police may seek to establish reasonable suspicion before the call ismade (see, e.g., R. v. Pucci, 2018 ABCA 149, 359 C.C.C. (3d) 343, at para. 11; R. v.

Clarke, 2018 ONCJ 263, at paras. 40 and 56-57). In British Columbia, police officers are required to record on a “Swan sheet” the steps they took to establish reasonablesuspicion before making the call — which belies any suggestion that Mack is impractical to apply in a digital age, or that reasonablesuspicion in the virtual world should represent a lower threshold than in the physical world (R. v. Li, 2019 BCCA 344, 381 C.C.C. (3d)363, at paras. 3-4; B. A. MacFarlane, R. J. Frater and C. Michaelson, Drug Offences in Canada (4th ed. (loose-leaf)), vol. 2, at pp. 26-4to 26-7).

This practice was adopted after the Court of Appeal for British Columbia criticized the police for making hundreds of randomphone calls on the basis of bare, uncorroborated tips in Swan, at para. 43. [53] Of course, it is for the police to determine how to proceed with their investigations. But to be clear, reasonablesuspicion cannot be grounded on a bald tip alone (Simpson, at p. 504; J. L., at pp. 270-71; see also R. v. Arriagada, [2008] O.J. No. 5791(QL) (S.C.J.), at para. 25; Clarke, at para. 44). As this Court held in R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140, when the police use a tip from a confidential or anonymous source to justify an intrusion on someone’s liberty, courts must scrutinize the tip.[1] Itshould be examined to see whether its detail is compelling, the informant is credible, and its information is corroborated in any way(Debot, at p. 1168).

[ 54 ] Although it would be prudent for police officers to investigate the reliability of the tip before placing the call where they are able to do so, it is also possible for the police to form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime (see, e.g., Townsend , at para. 50).

While this is a necessary part of the “leeway” Mack requires (at p. 978), police must be aware that in placing the call without reasonable suspicion, they are walking on thin ice, having already intruded upon the private life of their interlocutor. [ 55 ] That said, the target’s responsiveness to details in the tip, along with other factors, may tend to confirm the tip’s reliability. For example, the target’s use of or response to language particular to the drug subculture properly forms part of the constellation of factors supporting reasonable suspicion (see Olazo , at para. 26 ).

Even so, the understanding of “coded” drug language by a target is not, on its own, necessarily a reliable ground for reasonable suspicion. Some phrases admit of innocent

interpretation. And some people — especially vulnerable people — are simply familiar with the coded language of drug trafficking, a point made convincingly by Pringle J., writing in Clarke : Respectfully, I think it dangerous to place too much emphasis on whether the target’s mind is innocent and his history blameless. For example, in Mack , the appellant was a reformed drug dealer. While I appreciate that he was induced, the fact remained that because of his prior life experience, he understood drug trafficking transactions and retained drug contacts that could secure him $27 000 worth of cocaine.

A reformed drug dealer could get a call from police asking for drugs, based entirely on a stale tip, and fall off the rehabilitative wagon because he struggles to pay rent that month. The little brother of a drug dealer could pick up his phone, understand the street language , and decide that what he hears is an easy way to make $100. This kid can intend to sell the caller baking soda, even, but once he says “yes” on the phone, he has committed a criminal offence. . . .

The emphasis, in my opinion, is not on what the “innocent” person would do, but what information police relied upon when they provided someone with the opportunity to commit a crime. . . . [W]hen police do this without a proper basis, meaning without reasonable suspicion, this will always carry the risk of ensnaring the innocent. [Underlining added; paras. 20-21 and 23.] [ 56 ] Whether or not responding to such terminology is neutral or adds to the weight of other factors will depend on the circumstances. There is no requirement that the police rule out innocent explanations for these responses.

But by the same token, the more general the language used, the more the need for specific evidence regarding police experience and training ( Chehil , at para. 47 ). In particular, where a police officer testifies that a generic or everyday phrase is indicative of involvement in the drug trade, a trial judge must carefully consider whether this is a reasonable connection to make, based on rigorous scrutiny of all the evidence, including any other factors said to establish reasonable suspicion.

Moreover, if the target seems confused by the officer’s use of such language, such exculpatory information must be taken into account as part of the “entirety of the circumstances” ( Chehil , at para. 6 ). Courts must keep in mind that relevant factors are not to be parsed separately and assessed individually to determine whether they support reasonable suspicion.

Rather, they are assessed together and in light of each other. [ 57 ] To conclude, an objective assessment rigorously safeguards several rights that are engaged in the entrapment context: to liberty, to privacy, to be left alone, and to equality ( Mack , at pp. 941 and 955; Barnes , at pp. 479-83, per McLachlin J., dissenting). Reasonable suspicion is the minimum objective standard the Court has chosen to protect these essential rights. At the same time, it also allows police the flexibility necessary to enforce the criminal law against crimes that are difficult to investigate ( Mack , at pp. 916 and 958). C.

How Should Courts Review the Words Spoken During a Police Call to the Target? [ 58 ] In both of these appeals, the police engaged in transcribed phone conversations with the appellants as part of their investigations. Both trial judges reviewed those conversations to determine whether the appellants were entrapped. The Crown says they were wrong to do so.

Instead, the Crown argues that the “totality of the exchange” between undercover operators and their targets should be examined in determining whether entrapment has been made out, including looking at the circumstances that follow the request to purchase the drugs. [ 59 ] We disagree. Unless the police had formed reasonable suspicion before a phone call was made, reviewing the words spoken during the call is unavoidable.

Reviewing conversations between undercover officers and their targets in the dial-a-dope context is the inevitable consequence of accepting that the police must have reasonable suspicion before offering an opportunity to commit an offence. While we agree that the conversation must be considered contextually, that is in order to determine whether the undercover officer made a specific request to purchase drugs, and whether reasonable suspicion existed before the opportunity to commit a crime was offered. [ 60 ] Our point about timing is fundamental. Reasonable suspicion is not formed retroactively.

Rather, it is applied prospectively. From its inception, the entrapment doctrine has required that police officers have reasonable suspicion of criminal activity before providing an opportunity to commit an offence. Reasonable suspicion — like any level of investigative justification — can justify an action only on the basis of information already known to police (see, e.g., Swan , at para. 27 ; R. v. Saeed , 2016 SCC 24 , [2016] 1 S.C.R. 518, at para. 64 ; Ormerod and Roberts, at p. 46, fn. 31).

It follows that the decision to intrude into an individual’s private life and offer them the opportunity to commit a crime is justified only if the grounds predate the measure. This is no different than the rule that applies to every context in which this standard (or indeed any standard) is used to justify state actions that interfere with individuals’ protected interests. Police may not detain an individual for investigative purposes unless they already have reasonable suspicion the individual is connected to a particular crime ( R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59, at para. 34 ).

Nor may police undertake a safety search unless they already have reasonable grounds to believe that their safety or the safety of others is at risk ( R. v. MacDonald , 2014 SCC 3 , [2014] 1 S.C.R. 37, at para. 41 ). This Court has also been clear that reasonable suspicion must be assessed at the time of a sniff search and not after ( Chehil , at para. 68 ). [ 61 ] We acknowledge that there has been criticism of an approach sometimes described as narrowly “parsing”

conversations between police officers and the individuals they are investigating. The term “parsing” however, captures neither thepu

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