Chapter 14 - Police Practices

Entrapment 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]