under arrest

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 soliciting a prostitute. The criminal justice system protects against situations like this by dismissing cases where such behaviour has occurred on the basis that such police conduct constitutes an abuse of the court’s process.

The following article attempts to explain the legal defence of entrapment in the Canadian criminal justice system.

Frequently Asked Questions About Entrapment

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.

What must be proven to establish the defence of entrapment?

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; 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.

Does the accused bear the burden of establishing entrapment occurred?

The onus of establishing an entrapment defence falls on the accused to prove on a balance of probabilities that entrapment has occurred.

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, residing 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.

At what point in time must the police have reasonable suspicion the target was engaged in criminal activity?

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.

What constitutes a reasonable suspicion for the purpose of assessing an entrapment defence?

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.

What are there limitations to the defence of entrapment?

1) The offence must be induced by the state

Entrapment must involve the state or state agents. One cannot argue that he was entrapped into committing an offence by a private individual.

2) Excluded offences

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.

3) Not available at extradition proceedings

Entrapment cannot be used as an argument against 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?

  • 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.

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.

What is the appropriate remedy when entrapment is established?

A stay of proceedings is typically the proper remedy for entrapment; however, a judge may also grant the remedy of excluding evidence where appropriate.

Establishing a person was entrapped by police is extremely rare. If you have further questions about the law of entrapment, Daniel Brown is available for consultation at (416) 297-7200.