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November 1st, 1998.-
The Police:
"Entrapment."The rules governing the police on this question of entrapment have been set out by the Supreme Court of Canada in a number of cases.1 The basic rule was stated by Chief Justice Lamer in 1991 :2
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- "The basic rule articulated ... is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule 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 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.
- Random virtue testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:
- (a) The person is already engaged in the particular criminal activity, or
- (b) The physical location with which the person is associated is a place where the particular criminal activity is likely occurring."
- "The basic rule articulated ... is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule 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 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.
A local judge3, in a helpful way, set out the following:
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- "[16] It is clear from the relevant case law that the onus is on the defence, once the Crown has established each of the essential ingredients of the offence beyond a reasonable doubt, to prove on a balance of probabilities that entrapment occurred. The Supreme Court of Canada in the case of R. v. Mack, supra, made it clear that the defence of entrapment is recognized in only the clearest of cases. The following factors, although not exhaustive, may be of some assistance in considering whether the defence of entrapment has been made out:
- 1. The type of crime and the availability of detection techniques;
- 2. The reaction of an average person in the position of the accused;
- 3. The persistence by the police;
- 4. The type of inducement, if any, used;
- 5. The timing of police conduct;
- 6. The exploitation of human emotions
- 7. The particular vulnerability of the person exploited by the police;
- 8. The proportionality of the police involvement;
- 9. The existence of any threats;
- 1O. The undermining of other constitutional values.
- 2. The reaction of an average person in the position of the accused;
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- For more, see the following commentaries:
- The Police and A Citizen's Rights - October 4th, 1998
- The Police and The Search Warrant - October 11th, 1998
- The Police and Wire Taps - October 18th, 1998
- The Police and Police Checks - October 25th, 1998
- The Police and Entrapment - November 1st, 1998
- The Police and A Citizen's Rights - October 4th, 1998
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NOTES:1 R. v. Mack, [1988] 2 S.C.R. 903 and R. v. Barnes, [1991] 1 S.C.R. 449.
2 The Barnes cases.
3 Gibson, P.C.J., in R. v. Marriott (1996), 146 N.S.R.(2d) 311.
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