What is entrapment?
Entrapment is a procedural safeguard to criminal charges when it is established that the police or their agent originated the idea of the crime and induced the accused to engage in it. The Supreme Court of Canada established that entrapment occurs when:
- The police provide an opportunity to someone to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry; and
- Although having such a reasonable suspicion or acting in the course of a bona fide inquiry, the police go beyond providing an opportunity and induce the commission of an offence.
Essentially, the underlying defence to entrapment is to prevent police from engaging in reprehensible conduct by inducing people to commit criminal offences without a reasonable suspicion that they would have engaged in the activity without the opportunity provided by police. Most often, entrapment occurs in drug offences and prostitution.
Entrapment is not a defence in the sense that an accused denies committing the offence at trial or attempts to raise a reasonable doubt about the underlying criminal offence. The defence of entrapment occurs after a finding of guilt with the remedy being a stay of proceedings or an exclusion of evidence. This means that before entrapment is raised by defence counsel, the Crown Prosecutor must prove the accused is guilty of the criminal offence beyond a reasonable doubt.
Once there has been a finding of guilt, the onus of which rests with the Crown Prosecutor, the onus of establishing entrapment shifts to the accused to prove on a balance of probabilities that entrapment has occurred.
An example of entrapment comes from an Alberta Court of Queen’s Bench decision in R v. Saggu. Police received a Crime Stoppers tip that “Chris” was a drug dealer and provided his number. The police officer who received the tip passed the information to a second officer to arrange a drug deal. The second officer sent a text to the number asking for a “ball ASAP.” Several text messages and calls followed with the police officer not receiving an affirmative response to the request to buy drugs. After more calls and texts, the police officer finally arranged a deal with Saggu in which drugs were exchanged for money in an undercover operation.
In finding there was entrapment and ordering a stay of proceedings, Justice Wilson concluded, at pp. 7-8:
“I find that when Constable Swanson made the first text…he only did so at the direction of Constable Coffyne. Neither Constable Swanson or Constable Coffyne had, at that time, a reasonable suspicion that “Chris” was engaged in dealing drugs. While Constable Coffyne…had attempted to investigate the tip, the end result remained the same. He gained nothing from his efforts. The same result had he done nothing…I find that all that can be made out of Chris’responses is some additional suspicion. It must be borne in mind that Constable Swanson did not commence his texting with a view to determining the type of business or employment held by that subscriber or user. It was, as the officer candidly admitted, to arrange a meet to purchase drugs. His suspicions only bore fruit on the fourth attempt…[A] reasonable suspicion that the accused was engaged in criminal activity had to exist before that opportunity was provided. Such, I find, did not exist here.”