Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code

Chapter Eighteen: Entrapment

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  Even though the AR and MR of an offence may be made out, and the actions of an accused may be neither justified nor excused, conviction of the accused might bring the administration of justice into disrepute, or be an abuse of process.
  
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    Double Jeopardy: The accused may have already been convicted for the same or substantially same actions.
    
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    Entrapment: The executive may have been over zealous in pursuing the accused.
    
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    The 11b Defense: The judicial system may have taken too long in bringing the accused to trial.
    
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  Depends on the conduct of the state – not the accused.
  
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  Without complainants, prosecutions are difficult. Therefore, standard policing techniques frequently require supplementation by informers (CI’s or confidential informants). Someone on the inside has to be “turned.”
  
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  The difficulties with police involvement with and infiltration of criminal organizations are that the police may manufacture crime. The police or CI’s may force persons to commit crimes who would not otherwise have committed the crimes.
  
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  The entrapment rules developed at common law as a means of controlling invasive or infiltrative police investigations.
  
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  There are two types of entrapment:
  
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    Type 1: “Random Virtue Tests:” Without acting on reasonable suspicion that a person is already engaged in criminal activity or pursuant to a bona fide inquiry, the authorities provide a person with an opportunity to commit an offence; OR
    
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      Virtue tests are ok if the police have a reasonable suspicion based on the accused’s past criminal conduct or other links to crime; must be same level / similar crime, a temporal connection, and doesn’t require actual past conviction.
      
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    Type 2 “Inducing an Offence:” although acting on such a reasonable suspicion or acting pursuant to a bona fide inquiry, the authorities goes beyond providing an opportunity and induce the commission of an offence.
    
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      A is not disqualified from the offence because of past criminal conduct.
      
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      An objective test is used.
      
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  Essentially, the authorities must be found to have “caused” the offence.
  
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  The issue of whether the authorities have gone beyond the provision of an opportunity is determined objectively, by the standard of what the average non-predisposed person would have done, if subjected to the same police tactics. The predisposition of the accused for criminality is not to be taken into account on this issue.
  
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  Some factors to consider: the type of crime, the stage of the crime when the police became involved, police persistence, the manner of involvement, proportionality, and the target of the investigation.
  
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  The issue of entrapment is an issue of law or an issue of mixed law and fact to be decided by the trier of law.
  
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  If entrapment is made out, the court may grant a stay of proceedings based on their jurisdiction to prevent abuse of processes.
  
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  The burden of proving entrapment rests on the accused and must be proven on a balance of probabilities.
  
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  Jurisdiction NOT from CC 8.3.
  
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  R v Mack: The appellant was charged with the unlawful possession of a narcotic for the purposes of trafficking. The accused was involved in drug dealings in earlier years (over a decade earlier). A met Momotiuk in Montreal for a real estate deal. M became a CI to catch A. M told A that he was a dealer and wanted drugs. A told M he had no interest. M again tried to get A involved in drug deal – A refused. M mad at least 7 phone calls to A to get involved with drugs. A refused. In Feb 1980 M made a person visit to A. In March they took a walk in the woods. M said “a person could get lost” in the woods. A thought it was a threat but still said no. He had no knowledge of drug sources. Later in March he was told by a third party to meet M and some friends in a hotel. A was terrified. He attended. At the hotel, M told A to get his act together. A finally agrees and purchases cocaine and tries to deliver to M but is arrested. The application for entrapment was refused at trial and a conviction was entered. The appeal was dismissed. Leave to appeal was granted to the SCC.
  
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    Should a stay be granted on the basis of entrapment?
    
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    The test is an objective one. Would a reasonable person in the situation of the accused commit the crime if subjected to the same police tactics?
    
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    Yes, the average person in the position of A would have committed the offence. Police conduct was unacceptable.
    
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  25.1(2) Criminal Code: It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.
  

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  (8) A public officer is justified in committing an act or omission — or in directing the commission of an act or omission under subsection (10) — that would otherwise constitute an offence if the public officer
  
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     (a) is engaged in the investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity;
     
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     (b) is designated under subsection (3) or (6); and
     
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     (c) believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.
     
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     (9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property, or in directing the commission of an act or omission under subsection (10), unless, in addition to meeting the conditions set out in paragraphs (8)(a) to (c), he or she
     
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     (a) is personally authorized in writing to commit the act or omission — or direct its commission — by a senior official who believes on reasonable grounds that committing the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties; or
     
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     (b) believes on reasonable grounds that the grounds for obtaining an authorization under paragraph
     
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        (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to
        
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        (i) preserve the life or safety of any person,
        
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        (ii) prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or
        

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  (11) Nothing in this section justifies
  

(b) the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or

(c) conduct that would violate the sexual integrity of an individuals.