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SCC Addresses Entrapment in Virtual Spaces

Updated: Aug 4, 2020

The Supreme Court of Canada has rendered judgment in R. v. Ahmad.

The issues in the appeal were important matters of public law that concern the doctrine of entrapment and whether common law protections sufficiently protect the individual’s right to be left alone in a digital or virtual location, against the need for the investigation of crime.

Alison acted along with Greg DelBigio, Q.C.,  for the Independent Criminal Defence Advocacy Society (CDAS) at the Supreme Court of Canada. CDAS' submissions focused on how the reasonable suspicion standard applies when police investigate a phone number, or another virtual means of communication between people, like a message board on a website. CDAS argued that virtual spaces are not analogous to physical places for the purposes of the entrapment doctrine.

CDAS argued that exceptions to the common law protections should not be expanded to include digital and/or virtual locations. In the alternative, that if those exceptions should be so expanded, a more robust set of considerations should inform the court’s analysis of whether the individual’s interest in being left alone should yield to society’s interest in protection from crime. 

The majority of the Court held that virtual spaces qualify as a "place" for the purposes of the entrapment doctrine. However, it accepted the submission of CDAS that there may be an enhanced privacy interest in some virtual spaces as compared to public physical places (para 36-37), that state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space (paras 37-38), and that it is important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime (paras 39-41).

The majority articulated a number of additional factors aimed at ensuring random virtue testing is avoided that resonate with submissions made by CDAS including: the seriousness of the crime in question; the time of day and the number of activities and persons who might be affected; whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection 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.

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