BC’s highest court has narrowed the interpretation of what constitutes an opportunity to commit a crime, differentiating it from legitimate investigation.
In R. v. Olazo & Storteboom, 2012 BCCA 59, a police officer stopped a motorist for a traffic infraction but agreed not to issue a ticket in exchange for information about a local dial-a-dope business. The motorist gave a phone number, saying it was an active area drug line which operated 24/7, and the names “Dave” and “Chris,” who he said worked the line on different shifts. One was either Chinese or Hispanic and they used a Chevy Cavalier and a gold Ford Explorer, he said.
The following day the officer asked a female colleague to call the number and see if she could arrange a drug purchase. She called at about 2 am and agreed to meet both the accused at a Home Depot to buy two rocks of crack cocaine for $70. Police went to the meeting place but no one appeared.
The officer again called the number and the male explained that he saw police cars in the area and would not stop. They then agreed to meet in a different place but no one showed up there either. Later, another officer made several calls to the number, arranged a meeting in a parking lot and an undercover officer bought cocaine.
At trial in British Columbia Provincial Court both suspects pled guilty to trafficking cocaine, possessing cocaine for the purpose of trafficking and possessing heroin for the purpose of trafficking but raised the defence of entrapment.
The judge found the officer didn’t know the motorist so his reliability as an informant was uncertain.
He didn’t ask how the motorist knew the information he provided so its reliability was also uncertain. The driver was obviously motivated by a personal benefit to provide it and none of the details were ever confirmed, corroborated or investigated to check out their reliability prior to the drug solicitation.
By making direct telephone contact without first verifying any of the information police operated on mere suspicion rather than the reasonable suspicion standard required to justify providing an opportunity to commit an offence, the judge found. The entrapment defence succeeded and stays of conviction were entered.
The Crown appealed, arguing the trial judge failed to appreciate the nature and effect of the first telephone call. Rather than an opportunity to commit an offence, the Crown argued the call was a step in the investigation, leading to reasonable suspicion.
There are two ways in which the defence of entrapment becomes available:
• Authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that they’re already engaged in criminal activity or pursuant to a bona fide inquiry; or
• Although having a reasonable suspicion or course of bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
The key issue was whether police had a reasonable suspicion before providing the accused with an opportunity to commit an offence.
Justice Donald wrote the opinion of the appeal court. Reasonable suspicion has been defined by what it is not – something more than mere suspicion and less than reasonable and probable grounds – and it has been likened to “articulable cause”... From what I have gleaned from the cases, a tip from an informant of unknown reliability will create a reasonable suspicion when some “objective” or “extrinsic” piece of information in the tip is confirmed. Confirmation of the tip must precede the offer. Were it otherwise, determining reasonable suspicion would be a bootstrapping exercise and ex post facto reasoning would allow the opportunity made on mere suspicion, if taken up, to raise the level to the requisite standard.
Entrapment law distinguishes investigation from opportunity. Steps taken to investigate the reliability of a tip, falling short of providing an opportunity to commit an offence, will not give rise to the defence (references omitted, paras. 16-19).
In determining whether police activity was merely investigation or the presentation of an opportunity to commit a crime (which requires a reasonable suspicion), a narrower interpretation of opportunity than just making a phone call and pretending to be a buyer was endorsed. “Police can achieve a level of reasonable suspicion by engaging in the preliminaries of a drug transaction without risking entrapment,” Donald noted.
In this case, the officer’s initial questions designed to set up a deal, if the recipient of the call were willing, could be seen as investigative steps rather than opportunity.
The two of them fairly quickly came to terms and arranged a meeting, but by that time, the tip had been confirmed in two important ways: someone answered at 2 am (a 24-hour line) and the male responded positively to the opening query expressed in terms familiar to drug traffickers and otherwise obscure to ordinary persons (it was a dial-a-dope line).
At this stage, the officer acquired a reasonable suspicion that she was speaking to a person engaged in trafficking and could go on to provide the opportunity for a transaction. The court rejected the defendants’ accusation that police set out to make a drug deal and their motive in making the call wasn’t to investigate the reliability of the tip but to conclude a transaction. The police motive in placing the call was irrelevant, Donald found.
“The authorities make it clear that reasonable suspicion is an objective standard,” he said. “For the purposes of entrapment, the pertinent question is whether, objectively speaking, the police had a reasonable suspicion that the suspect was engaged in the drug trade when they presented an opportunity to traffic.”
Although the tip itself may not have been enough to “arouse reasonable suspicion, the tip was sufficiently detailed and specific to justify placing a call as the next step in the investigation.” Police were not conducting a random investigation by making cold calls to phone numbers with virtually nothing to go on. The trial judge erred in excluding the first call police placed in deciding whether an opportunity based on reasonable suspicion was provided. The call confirmed the tip and police then acted on reasonable suspicion. There was no entrapment. The Crown’s appeal was allowed, the entrapment ruling set aside and both convictions restored.