Own your ow legal marijuana business | Your guide to making money in the multi-billion dollar marijuana industry |
Major Studies of Drugs and Drug Policy | ||||
Canadian Senate Special Committee on Illegal Drugs | ||||
Volume 2 - Policies and Practices In Canada |
|
Chapter 14 - Police PracticesEntrapment
and illegal activity
Entrapment and illegal police
activity are both based on the doctrine of abuse of process. Entrapment
In some cases, police forces use
informers (including paid informers) or undercover police agents to obtain
information about criminal offences. With consensual offences such as those
related to drugs, infiltrating a group and acting as a consensual participant
is often the only way for the police to obtain evidence of an offence. They are
generally there to observe the suspect and, in some instances, may afford the
suspect an opportunity to commit an offence
The police must ensure that the actions of the informer or the
undercover agent do not go too far. When police actions are excessive, the
accused may attempt to rely on the doctrine of entrapment. Although police
tactics intended to provide a person with the opportunity to commit an offence
and illegal police activities are not limited to drug offences, it is fair to
state that these tactics are probably much more prevalent in investigations of
these types of offences. The leading case in Canada on
entrapment is the Supreme Court of Canada’s decision in R. v. Mack.[1][54]
Lamer J., as he then was, delivered the unanimous judgement of the
Supreme Court of Canada. He explained that entrapment is not a substantive
defence (such as necessity or duress) and indicated that the rationale for this
defence is not a lack of culpability in the accused (because the essential
elements of the offence will generally be present). Rather, the rationale is
based on the need for the Court “to preserve the purity of the administration
of justice” and to prevent an abuse of the judicial process. Thus, entrapment
is based on the common law doctrine of abuse of process. According to Lamer J.,
entrapment occurs when the conduct of the police exceeds acceptable limits.
This is the case in the following circumstances: v 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; or v Having 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. To establish entrapment, the accused
is required to demonstrate only that one of the two branches of the test has
been met. If successful, the remedy is a stay of proceedings. According to the guidelines set out
by the Supreme Court of Canada, the police are required to have a reasonable
suspicion that the accused is already engaged in criminal activity, or must be
acting pursuant to a bona fide
inquiry. The rationale for requiring reasonable suspicion is “because of the risk that the police will
attract people who would not otherwise have any involvement in a crime and
because it is not a proper use of the
police power to simply go out and test the virtue of people on a random basis.”[2][55] In determining whether police
conduct goes further than providing an opportunity, a court will assess the
following non-exhaustive list of factors: v The type of crime being investigated and the
availability of other techniques for the police detection of its commission; v Whether an average person, with both strengths
and weaknesses, in the position of the accused would be induced into the
commission of a crime; v The persistence and number of attempts made by
the police before the accused agreed to commit the offence; v The type of inducement used by the police,
including deceit, fraud, trickery or reward; v The timing of the police conduct, in particular
whether the police instigated the offence or become involved in ongoing
criminal activity; v Whether the police conduct involves an
exploitation of human characteristics such as the emotions of compassion,
sympathy and friendship; v Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; v The proportionality between the police
involvement, as compared to that of 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; v The existence of any threats, implied or
express, made to the accused by the police or their agents; and v Whether the police conduct is directed at
undermining other constitutional values.[3][56] The Supreme Court of Canada stated
that the claim of entrapment is a very serious allegation against the state,
and that the state must be given substantial room to develop techniques which
assist in its fight against crime in society. It is only when the police and their
agents engage in conduct which offends basic values of the community that the
doctrine of entrapment should apply. The Court indicated that a stay should be
entered only in the “clearest of cases.”[4][57] In Mack, the Supreme Court of Canada stated that with respect to the
crime of drug trafficking, the state must be given substantial leeway. This
offence “is not one which lends itself to
the traditional devices of police investigation.” The Court added that it
is a “crime of enormous social
consequence which causes a great deal of harm in society generally.” The
Court concluded “this factor alone is
very critical.”[5][58] Although the Supreme Court of Canada
stated in Mack that random
virtue-testing will not be permitted because there is a risk of attracting
innocent individuals into the commission of an offence, it does make an
exception to the requirement to have reasonable suspicion with respect to the
individual in the case of a bona fide
investigation related to an area where it is reasonably suspected that criminal
activity is taking place. It is clear that such an exception
can apply to known locations of drug trafficking. An example of this can be
seen in R. v. Barnes.[6][59]
The accused was charged with a number of offences, including trafficking
in cannabis. An undercover police officer had approached the accused and his
friend because they generally fitted the description of persons who may possess
and sell drugs. After a short conversation, the accused agreed to sell hashish
to the undercover agent. The place where the arrest took place (a six‑block
pedestrian mall) was a well-known area where trafficking occurred, and the
police were conducting what are known as “buy-and-bust” transactions. The
accused relied on the defence of entrapment. The Supreme Court of Canada
reiterated the circumstances when entrapment occurs. Because in this case the
police did not have reasonable suspicion of the accused’s involvement in
unlawful drug-related activity, its conduct would amount to entrapment unless
it was part of a bona fide inquiry.
Thus, although the basic rule is that the police may only present the
opportunity to commit an offence to a person for whom they have a reasonable
suspicion that they are already engaged in criminal activity, there is an
exception where the police conduct is part of a bona fide investigation directed in an area where it is reasonably
suspected that criminal activity is occurring. If the location is defined with “sufficient precision,” the police may
present any person associated with the area with the opportunity to commit the
particular offence. In these circumstances, the police conduct would not be
considered to be random virtue-testing. In summary, the key issue with
respect to entrapment is whether the police had reasonable grounds or
suspicions to target an individual or were acting pursuant to a bona fide inquiry. In addition, even if
the first branch of the test is satisfied, one must consider whether the police
conduct went beyond providing an opportunity by determining whether the tactics
used by the police were designed to induce an average person into the
commission of an offence. It is important to note, however, that with respect
to entrapment the “fact situations can
vary enormously, which is why, although the general principles are beginning to
emerge, their application is not always easy and can lead to disagreement.”[7][60] The courts have indicated that each case
must be determined on its own facts, making it difficult to provide more
precise rules regarding police conduct. Illegal activities
As has been discussed, as criminal
offenders become more sophisticated, the police have adopted new investigative
tools in an attempt to keep pace (including cases where police officers have
breached the law while in the performance of their duties). This occurs in drug
investigations, for example, when police conduct buy-and-bust operations and
reverse sting operations. The use of illegal police activity to combat crime
raises the issue of whether such conduct leads to an abuse of process such that
a stay of proceedings will be granted. The Supreme Court of Canada has stated
that illegal police activity does not automatically amount to an abuse of
process. The legality of police actions is but a factor to be considered,
“albeit an important one.” Although the issue of illegal police activity is
important, it has less of an impact on the enforcement of drug legislation. The
reason is that the drug legislation provides police immunity for activities
such as buy-and-bust operations and reverse sting operations.[8][61] The leading case with respect to
illegal police activities is R. v. Campbell.[9][62] The police in this case had conducted a
reverse sting operation in which undercover officers portrayed themselves as
large-scale hashish vendors. The accused argued that the police conduct was
illegal because they had committed the offence of trafficking themselves (the
CDSA and the exemption it provides for such police conduct having not yet been
passed). They added that this amounted to an abuse of process. According to the Supreme Court of
Canada, the police are not immune from criminal liability for acts committed in
the course of an investigation, unless this is authorized by legislation. The
Court added that the issue should be left to Parliament: “If some form of public interest immunity is to be extended to the
police to assist in the ‘war on drugs,’ it should be left to Parliament to
delineate the nature and scope of the immunity and the circumstances in which
it is available…”[10][63] Where alleged illegal police activity is
authorized within the legislative scheme, there is no abuse of process issue.
The Supreme Court of Canada added, however, that illegal police activity does
not automatically amount to an abuse of process. The legality of police actions
is but a factor to be considered, “albeit an important one.” Although this decision may have had
a significant impact on general law enforcement in Canada, the impact was less
severe in the case of drug enforcement. This is because drug legislation was
amended to allow police officers to conduct the type of activities that were at
issue in Campbell. The CDSA proscribes various
activities such as possession, trafficking and manufacturing of drugs, while
allowing various regulatory exceptions, for example the importation by licensed
dealers and the sale by pharmacists. The Act also allows for the making of
regulations dealing with enforcement matters such as exempting police officers
from application of the Act on such terms and conditions as specified in the
regulations. In addition, the Act allows for the making of regulations “that pertain to investigations and other
law enforcement activities conducted under this Act by a member of a police
force and other persons acting under the direction and control of a member.”
Thus, the regulations provide a legal framework for specialized enforcement
techniques (including buy-and-bust, and sting operations) and set out the
parameters for such activities. The police rely on these regulations for
protection against prosecution. Section 3 of the Narcotic Control Regulations authorizes
members of police forces to possess narcotics where such “possession is for the purposes of and in connection with such
employment.” In addition, the CDSA (Police
Enforcement) Regulations exempt police officers from the offences of
trafficking, importation or exportation and production. The regulations set out
the eligibility requirements for the exemption. Different rules apply depending
on the source of the drugs. At all times, the individual must be an active
member of a police force and must be acting in the course of his or her
responsibilities for the purposes of the particular investigation. Thus, special immunity for police
officers is set out in the CDSA. Canadian criminal legislation has recently
been amended to provide a general exemption from criminal liability for police
officers. The legislation provides police with protection from criminal
liability for certain otherwise illegal acts committed during the course of a bona fide investigation or other law
enforcement duties, as long as certain conditions are met.[11][64] [1][54] (1988) 44 C.C.C. (3d) 513 (S.C.C.). [2][55] Ibid., at page 560. [3][56] Ibid., at page 560. [4][57] Ibid., at page 567. [5][58] Ibid., at page 69. [6][59] (1991) 66 C.C.C. (3d) 1 (S.C.C.). [7][60] Mewett, A.W. and S. Nakatsuru,
(2000) An Introduction to the Criminal
Process in Canada, Fourth Edition, Carswell, page 180. [8][61] Illegal activities by a police
officer also raise the issue of whether the police officer may be liable to
prosecution. The issue is beyond the scope of this paper. [9][62] (1999) 133 C.C.C. (3d) 257 (S.C.C.). [10][63] Ibid., at page 282. [11][64] SC 2001, Chapter 32. |