Entrapment

From Criminal Law Notebook

General Principles

See also: Abuse of Process

Entrapment refers to the legal defence that can be claimed by an accused in response to evidence of the commission of a crime. A proven claim of entrapment will result in the staying of the proceedings.

The defence of entrapment is not a traditional justification or excuse. It is a form of an abuse of process application resulting in a stay of proceedings.[1] The application is separate from the issue of guilt or innocence and is dealt with separate from a trial on the merits.[2]

Entrapment is not a formal defence in law, but rather it is a procedural disentitlement to convict on the basis of abuse of process and fairness.[3]

The doctrine relies in part on the notion that certain police tactics "leave no room for the formation of independent criminal intent by the accused" and so they should not be held liable.[4]

The doctrine is not the same as the doctrine of "innocence at stake", which relates to the standard to setting aside privilege. Privilege can only be set aside in the most "egregious and shocking" cases.[5]

Purpose

The purpose of the entrapment doctrine "reflects judicial disapproval of unacceptable police or prosecutorial conduct in investigating crimes."[6] It balances the interests of police flexibility in "the techniques they use to investigate criminal activity"--especially in "consensual crimes" which are difficult to detect by conventional crime--against the use of "techniques would offend our notions of decency and fair play."[7] It permits courts to weed out "law enforcement techniques that involve conduct that the citizenry cannot tolerate”.[8] The doctrine exists as the values of "our democratic system" include the idea that the ends do not justify the means."[9]

Availability

A defence is available when:[10]

  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 ;
  2. the authorities provide a person with an opportunity to commit an offence without acting pursuant to bona fide inquiries; or
  3. although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

It should only be granted in the "clearest of cases."[11] Such as where the "administration of justice has been brought into disrepute."[12]

Burden of Proof

Before an application for a stay can be made, the trier-of-fact must be satisfied that the Crown has proven the elements of the offence beyond a reasonable doubt.[13]

Once the Crown has discharged its burden, the accused bears the burden of proof to "demonstrate by a preponderance of evidence that the prosecution is an abuse of process."[14] The standard of proof required by the accused is on the balance of probabilities.[15]

The burden should be high as "[t]he state must be given substantial room to develop techniques which assist it in its fight against crime in society."[16]

With respect to the entrapment test requiing reasonable suspicion, the burden is upon the defence to establish on balance of probabilities that "neither of those criteria is satsified]."[17]

The burden being on the accused does not have connection to the presumption of innocence.[18]

The existence of entrapment is a question that can only be answered by the judge and not the jury.[19]

Appellate Review

The issue of entrapment is a question of law or mixed fact and law.[20]

  1. ↑ R v Sargent, 2010 ABPC 285 (CanLII), 500 AR 25, per Holmes J, at para 20
    R v Pearson, 1998 CanLII 776 (SCC), [1998] 3 SCR 620, per Lamer CJ and Major J
    R v Shirose, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per per Binnie J
  2. ↑ Sargent, supra, at para 19
    Pearson, supra
  3. ↑ R v Mack, 1988 CanLII 24 (SCC), 44 CCC (3d) 513, per Lamer CJ
    R v Amato, 1982 CanLII 31 (SCC), [1982] 2 SCR 418, per Dickson J (5:4)
  4. ↑ Amato, supra, per Ritchie J (concurring), at p. 473 ("In my view it is only where police tactics are such as to leave no room for the formation of independent criminal intent by the accused that the question of entrapment can enter into the determination of his guilt or innocence.")
  5. ↑ R v Schacher, 2003 ABCA 313 (CanLII), 179 CCC (3d) 561, per Ritter JA, at para 28
    See also Solicitor-Client Privilege
  6. ↑ R v Imoro, 2010 ONCA 122 (CanLII), 251 CCC (3d) 131, per Laskin JA, at para 8
  7. ↑ Imoro, ibid., at para 9
  8. ↑ Mack, supra
  9. ↑ R v Ahmad, 2020 SCC 11 (CanLII), at para 16
  10. ↑ Mack, supra, at p. 559 (at para 126)
    Imoro, supra, at para 10 ("first, when state authorities, acting without reasonable suspicion or for an improper purpose, provide a person with an opportunity to commit an offence; and second, even having reasonable suspicion or acting in the course of a good faith inquiry, the police go beyond providing an opportunity to commit a crime and actually induce the commission of an offence.")
  11. ↑ Mack, supra, at para 154
  12. ↑ Mack, supra, at paras 152 to 153
  13. ↑ Mack, supra, at para 146
  14. ↑ Mack, supra, at p. 568 ("The interests of the court, as guardian of the administration of justice, and the interests of society in the prevention and detection of crime can be best balanced if the accused is required to demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment")
    Pearson, supra, at para 12
  15. ↑ Mack, supra
  16. ↑ Mack, supra
  17. ↑ R v Swan, 2009 BCCA 142 (CanLII), 244 CCC (3d) 108, per Prowse JA
  18. ↑ Pearson, supra
  19. ↑ Mack, supra, at para 146
  20. ↑ Mack, supra

Reasonable Suspicion

See also: Reasonable Suspicion

The requirement of "reasonable suspicion" before providing an opportunity to commit an offence exists between "suspicion" and "reasonable grounds."[1]

What constitutes "reasonable suspicion" will vary on the circumstances. It depends on the information and its reliability but will be necessarily be "low."[2]

Random Virtue Testing

Police are not permitted to engage in random "Random virtue testing" (RVT).[3]

RVT exists where the officer has no suspicion that:[4]

  1. the person is already engaged in the particular criminal activity, or
  2. the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.

Certain provinces have found that RVT by police, such as randomly calling phone numbers found on a suspect's cell phone in hope of catching a drug trafficker, oversteps their bounds of bona fides police investigations.[5]

Conducting a a DNA canvass of suspects has been upheld as a valid investigation technique.[6]

Already Engaged in Criminal Activity

An invitation to treat (as opposed to an offer) is presumptively sufficient to establish that the suspect "is already engaged in the proposed criminal enterprise". [7]

  1. ↑ R v Cahill, 1992 CanLII 2129 (BC CA), 13 CR (4th) 327, per Wood JA
  2. ↑ Cahill, ibid.("What will give rise to a reasonable suspicion, in the context under discussion, will necessarily depend on all of the circumstances facing the investigating authorities and thus will vary from case to case. ...[suspicion will be] based on information provided to the authorities, the reliability of the informant...the threshold established by such consideration will necessarily be low.")
  3. ↑ Mack, supra, at p. 560
  4. ↑ R v Barnes, 1991 CanLII 84 (SCC), [1991] 1 SCR 449, per Lamer CJ (7:2), at pp. 10-11
    R v Hunt, 1996 CanLII 1207 (BC SC), per McKinnon J, at para 7
  5. ↑ R v Swan, 2009 BCCA 142 (CanLII), 244 CCC (3d) 108, per Prowse JA, at para 43
    R v Clothier, 2011 ONCA 27 (CanLII), 266 CCC (3d) 19, per Laskin JA, at para 14 ("The police should not be allowed to randomly test the virtue of citizens by offering them an opportunity to commit a crime without reasonable suspicion that they are already engaged in criminal activity; or worse, to go further and use tactics designed to induce citizens to commit a criminal offence.")
  6. ↑ R v Osmond, 2012 BCCA 382 (CanLII), per Hall JA
  7. ↑ R v Gingras, 2013 BCCA 293 (CanLII), 340 BCAC 74, per Donald JA

Bona Fides Inquiry

An "exception to [the rule establishing entrapment] arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry."[1]

  1. ↑ R v Barnes, 1991 CanLII 84 (SCC), 63 CCC (3d) 1, per Lamer CJ (7:2), at pp. 10-11

Opportunity to Commit an Offence

There is nothing wrong with police "opening up a dialogue" or initiating "exploratory conversation" that is short of offering an opportunity to incriminate himself.[1]

Police may "present an opportunity to commit a particular crime to a person who arouses a [reasonable] suspicion that he or she is already engaged in the particular activity."[2]

Opportunity to Commit vs Exploratory Inquiry

There is a distinction between making an opportunity to commit an offence and simply investigating a tip through exploratory inquiry.[3]

In drug trafficking context, statements such as “can you meet me?” and “where are you?” were held to fall short of an opportunity to commit.[4]

Inducements

An inducement occurs where "the police have gone beyond merely providing the opportunity for the commission of a crime and have entered into the realm of the manufacturer of criminal conduct."[5]

The character of the inducement does not necessarily have to be "deceit, fraud, trickery or reward", but can include "calculated inveigling and persistent importuning."[6]

One approach would be "to consider whether the average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime."[7]

Factors to be considered whether the police went beyond "providing an opportunity to commit an offence" include but are not limited to:[8]

  • the type of crime being investigated and the availability of other techniques for the police detection of its commission;
  • whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
  • the persistence and number of attempts made by the police before the accused agreed to committing the offence;
  • the type of inducement used by the police including: deceit, fraud, trickery or reward;
  • the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
  • whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
  • whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
  • the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
  • the existence of any threats, implied or express, made to the accused by the police or their agents;
  • whether the police conduct is directed at undermining other constitutional values.
  1. ↑ R v Hersi, 2014 ONSC 4143 (CanLII), per Baltman J, at para 19
  2. ↑ R v Bayat, 2011 ONCA 778 (CanLII), 280 CCC (3d) 36, per Rosenberg JA, at para 14
  3. ↑ R v Williams, 2014 ONSC 2370 (CanLII), 11 CR (7th) 110, per Trotter J, at paras 20 and 27 - finds entrapment
  4. ↑ R v Olazo, 2012 BCCA 59 (CanLII), 287 CCC (3d) 379, per Donald JA
  5. ↑ R v Mack, 1988 CanLII 24 (SCC), [1988] 2 SCR 903, per Lamer J, at para 120
  6. ↑ Mack, supra, at para 121
  7. ↑ R v Argent, 2014 ONSC 4270 (CanLII), OJ No 3041, per Parayeski J, at para 19
  8. ↑ Mack, supra, at p. 560

Application to Specific Offences

Drug Trafficking

An undercover officer who attempts to buy drugs from someone suspected of selling drugs does not constitute entrapment.[1]

Police however cannot offer a person who answer the phone an opportunity to commit an offence without first a reasonable suspicion that that person or that number is engaging in criminal activity.[2]

Police appeared to be permitted to "achieve a level of reasonable suspicion by engaging in the preliminaries of a drug transaction" such as by asking for a drug "hook up."[3]

  1. ↑ R v Barnes, 1991 CanLII 84 (SCC), 63 CCC (3d) 1, per Lamer CJ (7:2)
  2. ↑ R v Ahmad, 2020 SCC 11 (CanLII), [2020] 1 SCR 577, per Karakatsanis, Brown and Martin JJ
  3. ↑ R v Olazo, 2012 BCCA 59 (CanLII), 287 CCC (3d) 379, per Donald JA, at para 25

Virtual Spaces

Virtual spaces are unique from real world places as it provides unrestricted ability to randomly virtue test anyone on the internet through fictitious personas.[1]

Police can only present opportunities to commit offences where either:

  1. there is a reasonable suspicion that the target is already engaging in criminal activity; or,
  2. there is a reasonable suspicion that criminal activity is occurring in a "specific" and "precise" online "space".

The investigation must be properly tailored having consideration for the following factors:[2]

  1. the seriousness of the crime in question;
  2. the time of day and the number of activities and persons who might be affected;
  3. whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location;
  4. the level of privacy expected in the area or space;
  5. the importance of the virtual space to freedom of expression; and
  6. the availability of other, less intrusive investigative techniques.

Police are permitted to engage people on the internet in regions on the internet such as Craigslist in the same manner that police enter into bad neighbourhoods for engaging people for known known drug dealing activity.[3]

Merely making contact with someone online does not amount to creating an opportunity to offend.[4]

Where the suspect takes the lead in directing the conversation then the officer is not "offering an opportunity to commit to commit an offence."[5]

Ensnaring accused through the posting of false online ads advertising underage prostitutes is not generally entrapment.[6]

An officer should not engage in communication "of a sexual provocation nature" until the reasonable suspicion has been formed.[7]

  1. ↑ R v Ramelson, 2022 SCC 44 (CanLII), per Karakatsanis J
  2. ↑ Ramelson, supra at para 57
  3. ↑ R v Argent, 2014 ONSC 4270 (CanLII), OJ No 3041, per Parayeski J, at para 18
  4. ↑ R v Chiang, 2012 BCCA 85 (CanLII), 286 CCC (3d) 564, per Hall JA
  5. ↑ R v Bayat, 2011 ONCA 778 (CanLII), 280 CCC (3d) 36, per Rosenberg JA
  6. ↑ Chiang, supra
  7. ↑ Bayat, supra

Non-Criminal Offences

The defence of entrapment is not permitted in regulatory offences such as the sale of tobacco to minors. Random virtue testing is available.[1]

  1. ↑ R v Clothier, 2011 ONCA 27 (CanLII), 266 CCC (3d) 19, per Laskin JA

Procedure

A defence of entrapment cannot be advanced until after the crown has proven all of the elements of the offence and there is a finding of guilt. A "two-stage trial" must be undertaken. First, the question of guilt is determined. If found guilty, the judge determines whether there was entrapment.[1]

The decision of whether entrapment exists is in the authority of the trial judge and not the jury.[2]

Entrapment on Guilty Plea

The entrapment defence may be raised after a plea of guilty.[3]

Disclosing Evidence of Entrapment

Evidence of entrapment, irrespective of its value towards guilt, must be disclosed at the earliest opportunity.[4]

  1. ↑ R v Mack, 1988 CanLII 24 (SCC), [1988] 2 SCR 903, per Lamer J
    R v Imoro, 2010 ONCA 122 (CanLII), 251 CCC (3d) 131, per Laskin JA
    R v Maxwell, 1990 CanLII 6693 (ON CA), 61 CCC (3d) 289, per Brooke JA
    considered in R v Bérubé, 2012 BCCA 345 (CanLII), 326 BCAC 241, per Groberman JA
  2. ↑ Mack, supra
  3. ↑ Maxwell, supra
  4. ↑ R v Pearson, 1994 CanLII 5433 (QC CA), 89 CCC (3d) 535, 60 Q.A.C. 103, per Fish JA upheld at 130 CCC (3d) 293
    see also Disclosure

Remedy

The usual remedy for entrapment is a stay of proceedings under section 24 (one) and not merely an exclusion of evidence under section 24 (2).[1] It is generally said that the alternative remedy of exclusion of evidence is not appropriate given that the unfairness relates to the proceedings having ever begun.[2]

  1. ↑ R v Imoro, 2010 ONCA 122 (CanLII), 251 CCC (3d) 131, per Laskin JA R v Mack, 1988 CanLII 24 (SCC), [1988] 2 SCR 903, per Lamer J
    R v Meuckon, 1990 CanLII 10991 (BC CA), 57 CCC (3d) 193, per Lamert JA
    R v Kenyon, 1990 CanLII 1263 (BC CA), 61 CCC (3d) 538, per curiam
  2. ↑ Imoro, supra

Reasonable Suspicion

See Also

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