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Reasonable suspicion must precede crime opportunity

Police must have a reasonable suspicion a person is involved in crime before presenting them with an opportunity to commit an offence.

In R. v. Gladue, 2012 ABCA 143 a first time informant with a criminal record told police a phone number was being used to sell crack cocaine in a dial-a-dope scheme. Without taking steps to verify the tip, an officer called the number to buy cocaine, asking an unidentified male who answered if he was “working” or “rolling.”

The man responded positively and asked “Who are you?” “Johnny,” the officer answered and the man asked what he wanted. The officer asked if he could get “four for a hundred” (meaning four half-gram pieces of crack cocaine for $100). The man said it would cost $110, agreed to meet at a specified location and sold the officer about two grams of cocaine.

Gladue pled guilty to trafficking cocaine in the Alberta Court of Queen’s Bench but the judge stayed proceedings on the basis of entrapment. He found police did not have a reasonable suspicion that Gladue was already engaged in criminal activity before they called. They did not know him personally, nor was there evidence they were aware of his name. Moreover, even during the call, they did not develop a reasonable suspicion before providing him with an opportunity to commit a crime.

The words “rolling” or “working” were capable of an interpretation that did not necessarily suggest a drug interaction and there was no expert evidence on drug trafficking terminology. In the judge’s view, the knowledge gained during the phone call was “too imprecise and too vague to bolster the already insufficient suspicion of the police prior to the call.” Gladue was acquitted.

In the Alberta Court of Appeal the Crown argued that the trial judge misinterpreted the test for entrapment, applying too high a standard for reasonable suspicion and failing to find police were engaged in a bona fide investigation. The court disagreed, first describing the test for entrapment:

Entrapment may be found when “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.” The bona fide inquiry exception permits the police to present an opportunity to commit a crime to a person associated with a location where it is reasonably suspected that criminal activity is taking place. Although a reasonable suspicion that a person is engaged in criminal activity can be developed during the course of an investigation of a tip, it must exist before the opportunity to commit an offence is provided (references omitted, para. 9).

In addition, the court noted that it wasn’t necessary that the identity of the person be pre-established. Police can acquire a reasonable suspicion of a person without knowing who they are.

The officer provided Gladue with a chance to commit a crime during the initial phone call when he asked if he could get “four for a hundred.” It was at this point – before the opportunity was provided – that a reasonable suspicion the accused was engaged in criminal activity had to exist. The “unverified tip, received from a first time informant with a criminal record, wasn’t enough to raise a reasonable suspicion,” said Justice Costigan, on behalf of the court. Nor was the conversation, with the use of the words “rolling” or “working,” enough to elevate the circumstances beyond mere suspicion.

The court also rejected the Crown’s submission that police were engaged in a bona fide investigation of a unique digital location, similar in concept to a geographic location, in calling the dial-a-doper number.

“Assuming, without deciding, that a phone can be equated to a specific physical location, the requirement for a reasonable suspicion must still be met,” said Costigan. Since it wasn’t, the Crown’s appeal was dismissed.

The Crown sought leave to appeal before the Supreme Court of Canada but its application was dismissed by a three judge panel (R. v. Gladue, (2012) S.C.C.A. No. 305).