Calling a phone number to make a drug deal on nothing more than a mere suspicion amounts to entrapment, British Columbia’s highest court has held.
In R. v. Swan, 2009 BCCA 142, the accused was arrested following an undercover dial-a-dope operation. A police officer compiled a list of phone numbers suspected of being associated to persons involved in dial-a-dope transactions. He e-mailed the entire department, asking them to get names or phone numbers or the best tip they could on a dial-a-doper and received 150-250 telephone numbers (tips) which came in various ways; e-mail, matchbooks, napkins, teared off pieces of paper, Crimestoppers tips or just a phone number on a slip of paper.
The numbers were given to other officers working on the project, who would try and make a drug deal by calling the telephone number and speaking with whomever answered the call. Telephone calls based on these tips were 95 per cent cold calls – made to an unknown person, unknown name, everything unknown from start to finish.
The methodology followed is that the undercover officers call the numbers until they reach someone who agrees to sell them drugs.
They then arrange for a meet, exchange cash for drugs and arrest the seller. There was no set script for the initiating call. Swan answered one of the calls, said he was working and the officer said he needed “40 up” – slang for $40 worth of cocaine. Swan agreed to meet and provided the officer with powdered cocaine in exchange for $40. He was arrested and charged.
At trial in BC Provincial Court Swan plead guilty to trafficking in cocaine and possessing cocaine for the purpose of trafficking. However, he sought a judicial stay of proceedings on the basis that he was entrapped. The judge heard expert evidence that the dial-a-dope trade in illicit drugs is more anonymous, mobile and difficult to investigate than “buy and bust” street level trafficking, which lends itself more readily to alternative police investigative techniques, including surveillance.
The judge found the police conduct was reasonable and lawful and that they were involved in a bona fide investigation. It did not amount to random virtue testing and therefore wasn’t entrapment.
Swan appealed to the BC Court of Appeal, arguing police entrapped him and that a judicial stay of proceedings should have been entered. In his view, police did not have a reasonable suspicion that he was engaged in drug trafficking when they offered him an opportunity to commit the offences and, instead, were engaged in random virtue testing.
Police were making cold-calls on nothing more than mere suspicion, he submitted, did not attempt to verify their sources before making them, even where it was possible to do so, and regarded verification of tips as virtually irrelevant in such an investigation. Because they did not limit the scope or target area of the investigation to something narrower than everywhere within the cell phone’s reach or every number which happened to appear on the unsubstantiated police list of phone numbers, they were not engaged in a bona fide investigation.
The Crown, on the other hand, contended that the police conduct did not amount to random virtue testing and that the investigation was bona fide.
Justice Prowse, writing the opinion of the court, first reviewed the law of entrapment.
The defence “is based on the notion that limits should be imposed on the ability of the police to participate in the commission of an offence... (a)s a general rule, it is expected in our society that the police will direct their attention towards uncovering criminal activity that occurs without their involvement.”
The defence of entrapment is available in two ways:
(1) The authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry. A reasonable suspicion is something more than a mere suspicion but something less than a belief based upon reasonable grounds. The “reasonable suspicion’ must exist either with respect to the person being targeted, or with respect to the area being targeted.”
A bona fide inquiry involves police presenting the opportunity to commit a particular crime to persons who are associated with a location where it is reasonably suspected that criminal activity is taking place. In these cases, they may not know the identity of specific individuals, but they may know a particular location or area where it is reasonably suspected that certain criminal activity is occurring. That makes it permissible to provide opportunities to people associated with the location under suspicion, even if they are not themselves under suspicion. This type of randomness is permissible within the scope of a bona fide inquiry. The defence bears the onus of establishing entrapment by proving, on a balance of probabilities, that there was no reasonable suspicion nor a bona fide inquiry.
(2) Although having such a reasonable suspicion or acting in the course of a bona fide inquiry, police go beyond providing an opportunity and induce the commission of the offence. Random virtue-testing, on the other hand, arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that: • The person is already engaged in the particular criminal activity, or • The physical location with which the person is associated is a place where the particular criminal activity is likely occurring.
Here, just because the investigating officer received a telephone number from the list did not give rise to a reasonable suspicion that the person who answered was engaged in drug-related activity. Rather, this piece of information, at best, amounted to “mere suspicion.” It was only after Swan’s response to the officer’s request for “40 up” – a solicitation for cocaine – that police were acting on something more than a mere suspicion – but reasonable suspicion must be present before, not after, an officer offers the accused the opportunity to commit the offence. Nor were police acting on a bona fide investigation:
It is not for the judiciary to direct the police how to conduct their operations. The judiciary is required, however, to determine whether the police conduct in a given case has overstepped the balance... between the state’s right to investigate and enforce the law and the public’s right to be left alone.
In considering that balance, what degree of comfort should the public take from the fact that the calls made are only to those numbers which make their way on to a police list? It is tempting to think that the numbers would not be on the list unless there was a reasonable suspicion that the numbers could be matched with an individual linked to the drug trade, but we know that is not so.
The best that can be said is that the numbers are linked to individuals about whom there may be only a mere suspicion that they may be involved in the drug trade. As far as the undercover operator making the call is concerned, that suspicion arises solely from the fact that the telephone number is on the list. Thus, a form of circular reasoning, or bootstrapping, governs the investigation whereby the results obtained are taken as justification for the means employed (references omitted, paras. 38-39).
I accept that dial-a-dope investigations present different problems in terms of detection and enforcement than the buy and bust investigations...
I also agree with the trial judge that the police in this investigation were operating bona fides to the extent they were conducting their operations with the genuine goal of pursuing serious crime, namely the trafficking in hard drugs, without ulterior motives.
I conclude, however, that in pursuing their goal, they overstepped the bounds of a bona fide police investigation... by proceeding armed only with mere suspicion and the hope that their unknown targets will provide the “something more” which was a necessary precursor to the invitation to traffic in drugs.
They pursued their investigative goals in circumstances where more information was, or could have been, available to them, but which they chose to disregard for reasons of expediency (references omitted, para. 43).
Since police did not have a reasonable suspicion Swan was engaged in trafficking drugs and were not acting pursuant to a bona fide inquiry, he was entrapped and was entitled to a stay of proceedings. Swan’s appeal was allowed, the convictions set aside and a judicial stay of proceedings was entered.