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Undercover police work and sting operations are legal in Canada. Entrapment happens when police cross one of two lines: they offer someone the chance to commit a crime without a reasonable suspicion, or they go further than offering a chance and induce the crime. It is not a defence that leads to an acquittal. If the accused proves it, the judge stays the charge as an abuse of process.
The police will often act covertly in an undercover capacity in order to investigate criminal activity. Rarely, the police will go too far in their undercover investigations and actually induce an otherwise law-abiding person into committing a crime such as trafficking drugs or obtaining sexual services (what used to be called soliciting a prostitute). The criminal justice system protects against situations like this by staying cases where such behaviour has occurred, on the basis that such police conduct constitutes an abuse of the court’s process. Entrapment arguments arise most frequently in drug cases, where undercover officers offer suspects an opportunity to buy or sell controlled substances.
The following article attempts to explain the legal defence of entrapment in the Canadian criminal justice system.
- What it is
- Abuse of processA limit on police conduct, not an excuse for the crime
- Who proves it
- The accusedOn a balance of probabilities
- When it is argued
- After a finding of guiltDecided by the judge, not a jury
- The remedy
- Stay of proceedingsThe prosecution ends
What is entrapment, and what must be proven?
Four questions a judge works through, in order.
Entrapment occurs when someone is induced to commit a criminal offence as a result of unfair law enforcement practices such as trickery, persuasion or fraud. In law the idea is a little wider than that. The Supreme Court of Canada set out the test in R v Mack, [1988] 2 SCR 903, and it has two separate branches. Either one is enough.
In raising the defence of entrapment, an accused must establish on a balance of probabilities that either:
(1) the police, without reasonable suspicion that the target was already engaged in related criminal activity, provided the target with an opportunity to commit a crime (and were not acting in a bona fide inquiry into a place where that crime was reasonably suspected); or
(2) the police, having the reasonable suspicion noted in (1) above, went beyond providing the target with an opportunity to commit the alleged offence and actually induced the commission of that offence.
The first branch exists because, as the Court put it in Mack, it is not a proper use of police power “to randomly test the virtue of people”. The second applies even where the police had good grounds: a reasonable suspicion, or a genuine inquiry, never justifies going beyond an opportunity.
Who has to prove entrapment, and what counts as reasonable suspicion?
Three rules decide most entrapment applications before anyone gets to the police tactics.
Who must prove it
The burden
The onus of establishing an entrapment defence falls on the accused to prove on a balance of probabilities that entrapment has occurred. The Supreme Court explains why in R v Pearson, [1998] 3 SCR 620: entrapment is about the state’s conduct, not guilt or innocence, so the presumption of innocence is not engaged.
When suspicion must exist
The timing
The relevant time when determining whether the police had a reasonable suspicion that the target was engaged in criminal activity is when the opportunity to commit a related offence was given to the accused by the police. Reasonable suspicion “is not formed retroactively” from what the person said afterwards (R v Ahmad, 2020 SCC 11).
What counts as reasonable suspicion
The standard
A reasonable suspicion is more than a mere suspicion and less than reasonable and probable grounds. It is dependent on both the content of the information provided to the police and its degree of reliability. A bare, unverified tip is not enough (Ahmad).
Do the entrapment rules change in high crime areas?
It is permissible for the police to offer to a person, about whom they have no reasonable suspicion that he or she is engaged in criminal activity, an opportunity to commit an offence if that person is located in an area in which the police reasonably suspect such criminal activity is occurring.
Therefore, being present in an area known for drug trafficking may permit a police officer to engage strangers in drug related conversations with a view to arresting them without knowing anything about them. In R v Barnes, [1991] 1 SCR 449, the Supreme Court held that being “associated” with the area requires no more than being there, but the area must be defined with sufficient precision and the police must have a genuine purpose of investigating crime. An officer’s hunch based on how someone dressed was not reasonable suspicion.
| Who or where police targeted | What police needed first | Leading case |
|---|---|---|
| A particular person | Reasonable suspicion that this person is already involved in that kind of crime | R v Mack, [1988] 2 SCR 903 |
| A place, such as a street or mall | A bona fide inquiry into an area defined with sufficient precision, where the crime is reasonably suspected | R v Barnes, [1991] 1 SCR 449 |
| A phone number from a tip | Reasonable suspicion about that number before the officer makes the offer; a bare tip is not enough | R v Ahmad, 2020 SCC 11 |
| An online space | A precisely defined space, and the offences offered must be rationally connected and proportionate to the crime suspected there | R v Ramelson, 2022 SCC 44 |
The same rules now apply to phones and the internet. In R v Ahmad, 2020 SCC 11, the Court accepted that a phone number can be a “place”, but held that police who receive a tip about a “dial-a-dope” number must have reasonable suspicion before they offer to buy. They can form it during the call, for example from how the person responds to drug slang, but not after the offer is made. One of the two accused in Ahmad was entrapped on that basis and his stay was reinstated.
In R v Ramelson, 2022 SCC 44, the Court applied the test to York Regional Police’s “Project Raphael”, in which officers posted escort ads and, once a buyer agreed to a price, revealed that the “escort” was under 18. It held that this was a bona fide inquiry into a precise online space. The companion appeals, R v Jaffer, 2022 SCC 45, R v Haniffa, 2022 SCC 46 and R v Dare, 2022 SCC 47, were dismissed for the same reasons. And where the accused starts the conversation and steers it toward the offence, police have not offered the opportunity at all (R v Ghotra, 2020 ONCA 373, affirmed 2021 SCC 12).
Where do entrapment arguments come up?
Almost always in offences with no complaining victim, where police have to create the opportunity to detect the crime.
Drug trafficking stings
Street buys and dial-a-dope
Undercover buys and calls to numbers from tips. An offer to sell is itself trafficking, so the question is usually whether police had reasonable suspicion before asking. See drug trafficking.
Sex-work stings
Police posing as a sex worker
Charges under s. 286.1 usually begin with an ad placed by police and a recorded conversation. See obtaining sexual services.
Online child-luring stings
An officer posing as a youth
Luring charges under s. 172.1 often arise from the same operations. See sexual exploitation for how luring is charged alongside it.
What are some factors the court will consider in determining whether or not someone was entrapped to commit a crime?
On the second branch, the question is whether police went further than providing an opportunity. The Supreme Court listed these factors in Mack, and said the list is not exhaustive:
- 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; and
- Whether the police conduct is directed at undermining other constitutional values.
The test is objective. It looks at what the police did and how an average person in the accused’s position would respond, not at the accused’s own state of mind. In Mack itself, police had reasonable suspicion but went too far: an informer pressed a former drug user for six months, threatened him and finally showed him a large sum of money. In R v Jaffer, 2022 SCC 45, the Court left open whether the test should take more account of an accused’s personal circumstances that police could not have known about.
What are the limitations to the defence of entrapment?
Even a clearly improper sting does not help in three situations.
1) The offence must be induced by the state
State agents only
Entrapment must involve the state or state agents. One cannot argue that he was entrapped into committing an offence by a private individual. An informer acting for the police counts as a state agent, as the informer did in Mack.
2) Excluded offences
Crimes of violence
There may be offences to which the defence cannot apply. Previous court decisions have indicated the defence of entrapment is not available where actual killing, bodily harm or other acts of violence are involved. That view comes from Justice Estey in Amato v The Queen, [1982] 2 SCR 418, writing in dissent; the Supreme Court has never had to decide it.
3) Not available at extradition proceedings
Extradition
Entrapment cannot be used as an argument against extradition to a foreign country. The extradition judge only decides whether the evidence justifies committal (United States of America v Dynar, [1997] 2 SCR 462), and can stay proceedings only for misconduct bearing directly on that hearing (United States of America v Cobb, 2001 SCC 19).
At what point in the trial should the defence of entrapment be raised?
The Crown must prove that the criminal activity which gave rise to the entrapment allegation occurred before an entrapment defence can be raised. Therefore, entrapment arguments are almost always raised after the judge or jury has found the accused guilty but before the accused is sentenced. That keeps the right to an acquittal intact: the Court in Mack said it must be “absolutely clear” that the Crown has proved every element beyond a reasonable doubt first. The entrapment application is then decided by the judge, even in a jury trial. It can follow a guilty plea too, as it did in R v Li, 2020 SCC 12.
What is the appropriate remedy when entrapment is established?
A stay of proceedings is the proper remedy for entrapment. The Supreme Court describes entrapment as “a form of abuse of process whose only remedy is a stay of proceedings” (R v Ramelson, 2022 SCC 44). Excluding evidence is not a remedy for entrapment itself; evidence can be excluded under s. 24(2) of the Charter only for a separate Charter breach.
Establishing a person was entrapped by police is extremely rare. The Court reserves a stay for the “clearest of cases”. If you have further questions about the law of entrapment, Daniel Brown Law is available for consultation at (416) 297-7200.
Why Choose Daniel Brown Law?
Daniel Brown Law is a leading Canadian criminal defence firm. When a charge comes from an undercover operation, how police set it up is one of the first things our lawyers examine.
A nationally recognized defence firm
Ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed for criminal defence by The Globe and Mail and Best Law Firms, and voted Best Law Firm and Best Legal Services by Toronto Star readers.
Undercover and sting cases
Our lawyers test what police knew before they made the offer, how the operation was defined, and whether the officers went beyond an opportunity, then bring the entrapment and Charter applications the evidence supports.
From the first call to appeal
Our team advises after arrest, runs bail hearings, defends the case at trial and argues appeals at the Court of Appeal for Ontario and the Supreme Court of Canada.
Recognized by the profession and the public
Daniel Brown Law is ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.
Best Law Firms: Criminal Law
The Globe and Mail, 2026
Top Criminal Law Boutique
Canadian Lawyer, 2026–27
Criminal Defence, Tier 1
Best Law Firms Canada, 2026
Best Lawyers in Canada
Criminal Defence, 2027
Toronto Star Readers’ Choice
Best Law Firm and Best Legal Services, repeat winner
Crime, Nationwide
Chambers Canada, 2027
The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:
- Canada’s Best Law Firms 2026 — The Globe and Mail (Report on Business)
- Canada’s Top Criminal Law Boutiques 2026–27 — Canadian Lawyer Magazine
- Best Law Firms 2026 — Criminal Defence and Appellate Practice (Best Lawyers / Best Law Firms)
- Best Lawyers in Canada — Criminal Defence — Daniel Brown, Hilary Dudding, Mark Halfyard, Lindsay Board and Colleen McKeown
- Toronto Star Readers’ Choice Awards — Best Law Firm and Best Legal Services, repeat winner
- Chambers Canada 2027 — ranked for Crime, nationwide, by Chambers and Partners
- Certified Specialists in Criminal Law — Law Society of Ontario (Daniel Brown and Mark Halfyard — fewer than 2% of Ontario criminal lawyers hold this designation)
Frequently Asked Questions About Entrapment
Short answers to the questions people ask about police stings and entrapment.
The basics
Is entrapment illegal in Canada?
Undercover work and stings are lawful. What the law forbids is offering someone the chance to commit a crime without reasonable suspicion, or inducing the crime. If an accused proves that, the court stays the charge as an abuse of process (R v Mack, [1988] 2 SCR 903).
What is entrapment?
Entrapment occurs when someone is induced to commit a criminal offence as a result of unfair law enforcement practices such as trickery, persuasion or fraud. It also covers police offering an opportunity to commit a crime to someone they had no reasonable suspicion about, outside a genuine inquiry into a defined place.
What must be proven to establish the defence of entrapment?
The accused must establish on a balance of probabilities either that police provided an opportunity to commit a crime without reasonable suspicion (and outside a bona fide inquiry), or that, even with reasonable suspicion, they went beyond providing an opportunity and induced the offence (Mack).
Does the accused bear the burden of establishing entrapment occurred?
Yes. The onus falls on the accused to prove on a balance of probabilities that entrapment has occurred (Mack; R v Pearson, [1998] 3 SCR 620).
Can a private person entrap you?
No. Entrapment must involve the state or its agents, such as police or an informer working for them. Being talked into a crime by a private individual is not entrapment.
Reasonable suspicion
Do the entrapment rules change in high crime areas?
Police may offer an opportunity to someone they know nothing about if that person is in a precisely defined area where police reasonably suspect the crime is occurring, and the inquiry is genuine (R v Barnes, [1991] 1 SCR 449).
At what point in time must the police have reasonable suspicion the target was engaged in criminal activity?
When the opportunity to commit the offence was given. Reasonable suspicion cannot be built afterwards from the person’s answers (R v Ahmad, 2020 SCC 11).
What constitutes a reasonable suspicion for the purpose of assessing an entrapment defence?
More than a mere suspicion and less than reasonable and probable grounds. It depends on both the content of the information police had and its reliability; a bare, unverified tip is not enough.
Can police call a number from a tip and offer to buy drugs?
Only once they have reasonable suspicion about that number. They may ask investigative questions first, but if the offer comes before anything confirms the tip, it is entrapment (R v Ahmad, 2020 SCC 11).
Are online sting operations entrapment?
Not if police target a precisely defined online space where they reasonably suspect the crime, and offer offences rationally connected and proportionate to it. The Supreme Court upheld York Regional Police’s Project Raphael on that basis (R v Ramelson, 2022 SCC 44).
Limits, timing and remedy
What are the limitations to the defence of entrapment?
It applies only to conduct by the state or its agents; it may not apply to crimes of violence, a point raised in Amato v The Queen but never decided; and it cannot be used to resist extradition to a foreign country.
What are some factors the court will consider in determining whether or not someone was entrapped to commit a crime?
Among others: the type of crime and other ways to detect it, whether an average person would have been induced, police persistence, the type of inducement, whether police started the crime, exploitation of friendship or a vulnerability, proportionality, threats, and whether other constitutional values were undermined (Mack).
At what point in the trial should the defence of entrapment be raised?
After the judge or jury has found the accused guilty but before sentence. The Crown must first prove the offence beyond a reasonable doubt, and the judge then decides the entrapment application.
What is the appropriate remedy when entrapment is established?
A stay of proceedings. Entrapment is a form of abuse of process whose only remedy is a stay (R v Ramelson, 2022 SCC 44). Establishing a person was entrapped by police is extremely rare.
Charges we defend
Learn more about some of the charges we defend. We defend more than what we have written blog articles about.
- Assault
- Bail hearings
- Bail pending appeal
- Coercive control
- Criminal appeals
- Criminal harassment
- Dangerous driving
- Distributing an intimate image
- Domestic assault
- Drug possession
- Drug trafficking
- Extradition
- Fail to appear at court
- Fail to comply with bail
- Failing to remain at the scene
- Firearm and weapon possession
- Forcible confinement
- Fraud
- Impaired driving
- Importing drugs
- Mischief
- Murder and manslaughter
- Obstruct police
- Peace bonds
- Public mischief
- Refusing a breath sample
- Robbery
- Sexual assault
- Sexual exploitation
- Theft and shoplifting
- Uttering threats
- Voyeurism
- Young offenders
Charged after an undercover operation? Talk to Daniel Brown Law
If you or someone close to you was charged after a police sting, speak to a lawyer before speaking to police. To arrange a consultation with Daniel Brown Law, contact our team or call our office at (416) 297-7200.
Phone: (416) 297-7200
Office: Daniel Brown Law, 400–103 Church St., Toronto, ON M5C 2G3