Supreme Court of Canada
Appellant testified at his trial for drug trafficking and, at the close of his defence, brought an application for a stay of proceedings on the basis of entrapment. His testimony indicated that he had persistently refused the approaches of a police informer over the course of six months, and that he was only persuaded to sell him drugs because of the informer’s persistence, his use of threats, and the inducement of a large amount of money. Appellant testified that he had had a drug habit but that he had given up his use of narcotics. The application for a stay was refused and appellant was convicted of drug trafficking. The Court of Appeal dismissed an appeal from that conviction. The central issue here concerns the conceptual basis of the doctrine of entrapment and the manner in which an entrapment claim should be dealt with by the courts.
Held: The appeal should be allowed.
Entrapment occurs when (a) 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 or pursuant to a bona fide inquiry, and, (b) 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 is essential that the factors relied on by a court relate to the underlying reasons for the recognition of the doctrine in the first place.
The doctrine of entrapment is not dependant upon culpability and the focus, therefore, should not be on the effect of the police conduct on the accused’s state of mind. As far as possible, an objective assessment of the conduct of the police and their agents is required. The predisposition, or the past, present or suspected criminal activity of the accused, is relevant only as a part of the determination of whether the provision of an opportunity by the authorities to the accused to commit the offence was justifiable. Further, there must be sufficient connection between the accused’s past conduct and the provision of an opportunity, since otherwise the police suspicion will not be reasonable. While the accused’s predisposition is of some relevance, albeit not conclusive, in assessing initial approach by the police of a person with the offer of an opportunity to commit an offence, it is never relevant as regards whether they went beyond an offer, since that is to be assessed with regard to what the average non-predisposed person would have done.
The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the conduct of the police because of the risk that the police will attract people otherwise without involvement in a crime and because it is not a proper use of the police power to randomly test the virtue of people. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will, however, never justify entrapment techniques: the police may not go beyond providing an opportunity regardless of their perception of the accused’s character and regardless of the existence of an honest inquiry.
The following factors may be considered in determining if the police have gone further than providing an opportunity: (1) the type of crime being investigated and the availability of other techniques for the police detection of its commission; (2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime; (3) the persistence and number of attempts made by the police before the accused agreed to committing the offence; (4) the type of inducement used by the police including: deceit, fraud, trickery or reward; (5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; (6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; (7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; (8) 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; (9) the existence of any threats, implied or express, made to the accused by the police or their agents; (10) whether the police conduct is directed at undermining other constitutional values. This list is not exhaustive.
Entrapment is not a substantive or culpability-based defence and the adoption of rules which historically, and by virtue of the Charter, conform to most substantive defences is neither necessary nor correct.
Objective entrapment involving police misconduct, and not the accused’s state of mind, is a question to be decided by the trial judge, and the proper remedy is a stay of proceedings.
The issue of entrapment should be decided by the trial judge, as opposed to jury, for policy reasons. A judge should consider the question from the perspective of a reasonable person, dispassionate and fully apprised of all the circumstances, and the reasonable person is usually the average person in the community but only when that community’s current mood is reasonable. The issue is maintaining respect for the values which, over the long term, hold the community together. One of those very fundamental values is the preservation of the purity of the administration of justice. A judge is particularly well suited to make this determination. Then, too, the determination of whether the admission of evidence obtained in violation of a Charter right would bring the administration of justice into disrepute is one which should be made by a trial judge. If one of the advantages of allowing claims of entrapment is the development of standards of conduct on the part of the state, it is essential that decisions on entrapment, and those allowing the claim especially, be carefully explained so as to provide future guidance; this is not something the jury process lends itself to.
Before a judge considers whether a stay of proceedings lies because of entrapment, it must be absolutely clear that the Crown has discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence. If this is not clear and there is a jury, the guilt or innocence of the accused must be determined apart from evidence which is relevant only to the issue of entrapment. This protects the right of an accused to an acquittal where the circumstances so warrant. If the jury decides the accused has committed all of the elements of the crime, it is then open to the judge to stay the proceedings because of entrapment by refusing to register a conviction. Because the guilt or innocence of the accused is not in issue at the time an entrapment claim is to be decided, the right of an accused to the benefit of a jury trial in s. 11(f) of the Charter is in no way infringed.
Dickson CJ and Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L’Heureux-Dube JJ
1988 CanLII 24 (SCC),  2 SCR 903
Document,  1 WWR 577
Cited – Regina v Looseley (orse Loosely); Attorney General’s Reference No 3 of 2000 HL 25-Oct-2001
Police Entrapment is no defence to Criminal Act
The defendant complained of his conviction for supplying controlled drugs, saying that the undercover police officer had requested him to make the supply.
Held: It was an abuse of process for the police to go so far as to incite a crime.
Updated: 25 February 2021; Ref: scu.658853
Supreme Court of Canada