Racial Profiling and Entrapment: Evidentiary Considerations before Proceeding with an Investigation

Summary of: R. v. Nairn, 2021 ONSC 4582

On March 22, 2018, two police officers stationed themselves to conduct surveillance in a plaza parking lot known for frequent drug activity. Mr. Guerra, a white male, and Mr. Grant, a black male, were observed walking out of a restaurant approaching a silver sedan that was parked in the lot. Mr. Grant moved towards and briefly interacted with an unknown male at a different parked vehicle while Mr. Guerra stayed by the sedan. The officers did not see anything pass between them but concluded that they were taking part in a hand-to-hand drug transaction.

After the interaction, the accused, a black male, exited the same restaurant carrying a backpack and got into the sedan before the three of them drove off. The officers followed them in their unmarked police car to a housing complex.

The officers observed the three individuals smoking marijuana and determined that, combined with their previous conduct, there were reasonable grounds to believe that an investigative detention was warranted.

After requesting backup, the officers approached the three individuals, who started walking away. As one of the officers followed, the accused began to run. The accused threw something over a fence as the foot pursuit was underway and the officer stopped and discovered that it was a loaded handgun.

The accused was arrested two months later, on May 15, 2018, and charged with possession of a loaded prohibited firearm and four counts of possession of a firearm contrary to a prohibition order.

The accused brought applications under sections 7 and 9 of the Charter asserting that the police violated his rights and obtained evidence by racially profiling him during their investigation of drug trafficking.

In respect of racial profiling in the context of the police authority to detain, the Court emphasized how detention must be based on a “constellation of objectively discernable facts” and that the presence of an individual in a high crime area is only relevant as it relates to an accused’s proximity to a particular crime.

In particular, the Court stated how a “hunch” based on intuition gained by experience is not a reasonable ground to suspect criminality and detain, no matter how accurate that “hunch” turns out to be. Such a hunch can mask an officer’s discriminatory conduct based on irrelevant factors such as the detainee’s sex, colour, age, ethic origin or sexual orientation.

The Court reiterated the Supreme Court’s decision in R. v. Le, 2019 SCC 34 that a detention based on racial profiling is arbitrary as it is not based on reasonable suspicion, and that racial profiling is also relevant when assessing whether police conduct was so serious and lacking in good faith such that evidence can be excluded pursuant to s. 24 of the Charter.

Racial profiling claims are also usually proven by inference drawn from circumstantial evidence, as direct evidence would involve an admission by an officer that they were influenced by racial stereotypes in the exercise of their discretion. Failing to abide by the prohibition against consciously or unconsciously employing discriminatory hunches and biased inferences may result in the evidence seized being excluded.

The accused argued that the officers were motivated by racial profiling because there was no justifiable reason to believe that he and his associates were involved in criminal activity, as neither the context of the plaza with its history of drug trafficking, nor the interactions the officers observed are sufficient to infer criminality.

Ultimately, the Court declined both the applications under sections 7 and 9, as the connection between the alleged incident of racial profiling and the accused’s arrest on firearm charges two months later was too remote to prove that a right was infringed. Furthermore, the Court did not decide on whether the police engaged in discriminatory profiling. The Court found that the firearm was discovered in an entirely different context with only a remote nexus to the alleged drug transaction, and that a racial profiling claim cannot be raised as an at-large or stand-alone claim that is unconnected to the violation of a right. In the trial result, the accused was found not guilty on all charges due to the lack of reliable identification evidence.

v. Henry-Osbourne, 2021 ONCA 561

In 2015, an undercover officer negotiated with the accused in a “dial-a-dope investigation” to buy heroin on three separate occasions. The accused was arrested shortly after the third transaction and charged with trafficking heroin and possession of the proceeds of crime from trafficking.

At trial, the accused brought an application to stay his convictions on the ground that he was entrapped into criminal conduct. In dismissing the application, the trial judge found that it was a bona fide investigation, there was no evidence of the undercover officer offering an inducement and the conduct of the investigation did not constitute random virtue testing because it was “focused on one individual possessing several articulated physical characteristics and three specific patterns of conduct: the use of the style ‘Prince’, the use of a specific telephone number, and dealing in heroin”.

The trial judge applied the test for entrapment from R. v. Mack, [1988] 2 S.C.R. 903 , that there is entrapment when:

(a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides … or,

(b) having a reasonable suspicion or acting during a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

On appeal, the Court found that the trial judge correctly decided that there was no entrapment. The accused’s principal argument was that the trial judge erred by applying the bona fide investigation test from Mack rather than the reasonable suspicion test under the Supreme Court’s most recent articulation of the test for entrapment in R. v. Ahmad, 2020 SCC 11.

The Court of Appeal stated that Ahmad did not fundamentally change the law as it stood but provided important clarifications on how to apply the law of entrapment, particularly with respect to assessing reasonable suspicion. Notably, the entrapment analysis focuses on whether the police had formed a reasonable suspicion when they created an opportunity to commit a crime.

In “dial-a-dope” investigations, an investigation is bona fide where the call has a genuine investigative purpose and the police have reached a threshold of reasonable suspicion before providing an opportunity to commit crime. Reasonable suspicion can be formed before placing a call or in the course of a conversation with the target.

Ahmad also clarified that an opportunity to commit a crime is provided only when a specific type of drug is requested such that the target can commit an offence by simply agreeing to provide what the officer has requested.

Although the trial judge did not make a specific finding as to whether police had formed a reasonable suspicion at the moment the offer to buy drugs was made, the Court of Appeal concluded that following the Ahmad framework would not have led to a different result. Specifically, the Court of Appeal was satisfied that the undercover officer formed a reasonable suspicion during the initial phone call and follow-up exchanges, prior to offering the accused the opportunity to traffic heroin. Ultimately, the accused’s appeal was dismissed.


The courts’ conclusions in the cases above highlight the importance of having a set of objectively discernable facts in the preliminary stages of an investigation that provide the officer a reasonable basis to proceed. Officers must be aware and careful of their unconscious biases when exercising their discretion to proceed with an investigation, either with a detention or a phone call, or risk exclusion of evidence.

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