R. v. Mack

R. v. Mack
Collection
Supreme Court Judgments
Date
1988-12-15
Report
[1988] 2 SCR 903
Case number
19747
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 19747
Decision Content
r. v. mack, [1988] 2 S.C.R. 903
Norman Lee Mack Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. mack
File No.: 19747.
1987: December 10; 1988: December 15.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Defences ‑‑ Entrapment‑‑Trafficking conviction ‑‑ Accused once an addict but had given up narcotics ‑‑ Police informer persistently requesting accused to sell drugs over lengthy period of time ‑‑ Informer threatening accused and offering large monetary inducement ‑‑ Whether or not stay of proceedings should issue on basis of entrapment ‑‑ Manner in which entrapment claim should be dealt with by the Courts.
Appellant testified at his trial for drug trafficking and, at the close of his defence, brought an application for a stay of proceedings on the basis of entrapment. His testimony indicated that he had persistently refused the approaches of a police informer over the course of six months, and that he was only persuaded to sell him drugs because of the informer's persistence, his use of threats, and the inducement of a large amount of money. Appellant testified that he had had a drug habit but that he had given up his use of narcotics. The application for a stay was refused and appellant was convicted of drug trafficking. The Court of Appeal dismissed an appeal from that conviction. The central issue here concerns the conceptual basis of the doctrine of entrapment and the manner in which an entrapment claim should be dealt with by the courts.
Held: The appeal should be allowed.
Entrapment occurs when (a) 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, and, (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. It is essential that the factors relied on by a court relate to the underlying reasons for the recognition of the doctrine in the first place.
The doctrine of entrapment is not dependant upon culpability and the focus, therefore, should not be on the effect of the police conduct on the accused's state of mind. As far as possible, an objective assessment of the conduct of the police and their agents is required. The predisposition, or the past, present or suspected criminal activity of the accused, is relevant only as a part of the determination of whether the provision of an opportunity by the authorities to the accused to commit the offence was justifiable. Further, there must be sufficient connection between the accused's past conduct and the provision of an opportunity, since otherwise the police suspicion will not be reasonable. While the accused's predisposition is of some relevance, albeit not conclusive, in assessing initial approach by the police of a person with the offer of an opportunity to commit an offence, it is never relevant as regards whether they went beyond an offer, since that is to be assessed with regard to what the average non‑predisposed person would have done.
The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the conduct of the police because of the risk that the police will attract people otherwise without involvement in a crime and because it is not a proper use of the police power to randomly test the virtue of people. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will, however, never justify entrapment techniques: the police may not go beyond providing an opportunity regardless of their perception of the accused's character and regardless of the existence of an honest inquiry.
The following factors may be considered in determining if the police have gone further than providing an opportunity: (1) the type of crime being investigated and the availability of other techniques for the police detection of its commission; (2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime; (3) the persistence and number of attempts made by the police before the accused agreed to committing the offence; (4) the type of inducement used by the police including: deceit, fraud, trickery or reward; (5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; (6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; (7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; (8) 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; (9) the existence of any threats, implied or express, made to the accused by the police or their agents; (10) whether the police conduct is directed at undermining other constitutional values. This list is not exhaustive.
Entrapment is not a substantive or culpability‑based defence and the adoption of rules which historically, and by virtue of the Charter, conform to most substantive defences is neither necessary nor correct.
Objective entrapment involving police misconduct, and not the accused's state of mind, is a question to be decided by the trial judge, and the proper remedy is a stay of proceedings.
The issue of entrapment should be decided by the trial judge, as opposed to jury, for policy reasons. A judge should consider the question from the perspective of a reasonable person, dispassionate and fully apprised of all the circumstances, and the reasonable person is usually the average person in the community but only when that community's current mood is reasonable. The issue is maintaining respect for the values which, over the long term, hold the community together. One of those very fundamental values is the preservation of the purity of the administration of justice. A judge is particularly well suited to make this determination. Then, too, the determination of whether the admission of evidence obtained in violation of a Charter right would bring the administration of justice into disrepute is one which should be made by a trial judge. If one of the advantages of allowing claims of entrapment is the development of standards of conduct on the part of the state, it is essential that decisions on entrapment, and those allowing the claim especially, be carefully explained so as to provide future guidance; this is not something the jury process lends itself to.
Before a judge considers whether a stay of proceedings lies because of entrapment, it must be absolutely clear that the Crown has discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence. If this is not clear and there is a jury, the guilt or innocence of the accused must be determined apart from evidence which is relevant only to the issue of entrapment. This protects the right of an accused to an acquittal where the circumstances so warrant. If the jury decides the accused has committed all of the elements of the crime, it is then open to the judge to stay the proceedings because of entrapment by refusing to register a conviction. Because the guilt or innocence of the accused is not in issue at the time an entrapment claim is to be decided, the right of an accused to the benefit of a jury trial in s. 11(f) of the Charter is in no way infringed.
The requirement that the accused prove entrapment on a balance of probabilities is not inconsistent with the requirement that the Crown prove the guilt of the accused beyond a reasonable doubt. The guilt or innocence of the accused is not in issue. The accused has done nothing to warrant an acquittal; the Crown, however, has engaged in conduct, however, that disentitles it to a conviction. Requiring an accused to raise only a reasonable doubt is entirely inconsistent with a rule which permits a stay in only the "clearest of cases". More fundamentally, the claim of entrapment is a very serious allegation against the state. To place a lighter onus on the accused would unnecessarily hamper state action against crime. The interests of the court, as guardian of the administration of justice, and the interests of society in the prevention and detection of crime can be best balanced if the accused is required to demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment. This is consistent with the rules governing s. 24(2) applications where the general issue is similar to that raised in entrapment cases: would the administration of justice be brought into disrepute?
The defence of entrapment is to be recognized in only the "clearest of cases": this description is preferable to the term "shocking and outrageous". Once the accused has demonstrated that the strategy used by the police goes beyond acceptable limits, a judicial condonation of the prosecution would by definition offend the community. It is not necessary to go further and ask whether the demonstrated entrapment would "shock" the community, since the accused has already shown that the administration of justice has been brought into disrepute.
The state must be given substantial leeway with drug trafficking because the traditional devices of police investigation are not effective. The police or their agents must get involved and gain the trust and confidence of the people trafficking or supplying the drugs. The social consequences of this crime are enormous and harmful.
The police here were not interrupting an ongoing criminal enterprise; the offence was clearly brought about by their conduct and would not have occurred without their involvement. Nor were they exploiting appellant's narcotics addiction. The persistence of the police requests and the equally persistent refusals, and the length of time needed to secure appellant's participation in the offence, indicate that the police had tried to make appellant take up his former life style and had gone further than merely providing him with the opportunity. The most important and determinative factor, however, was that appellant had been threatened and had been told to get his act together when he did not provide the requested drugs. This conduct was unacceptable and went beyond providing the appellant with an opportunity. The fact that the appellant eventually committed the offence when shown the money was not significant because he knew of the profit factor much earlier and still refused. The average person in appellant's position might also have committed the offence, if only to finally satisfy this threatening informer and end all further contact.
The police had reasonable suspicion that the appellant was involved in criminal conduct but they went too far in their efforts to attract him into the commission of the offence. The doctrine of entrapment was applicable to preclude appellant's prosecution and appellant met the burden of proof. The trial judge should have entered a stay of proceedings for abuse of process.
Cases Cited
Applied: Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. Jewitt (1983), 34 C.R. (3d) 193 (rev'd on other grounds, [1985] 2 S.C.R. 128); considered: Kirzner v. The Queen, [1978] 2 S.C.R. 487; Sorrells v. United States, 287 U.S. 435 (1932); Sherman v. United States, 356 U.S. 369 (1958); United States v. Russell, 411 U.S. 423 (1973), reversing 459 F.2d 671 (9th Cir. 1972); Hampton v. United States, 425 U.S. 484 (1976); United States v. Bueno, 447 F.2d 903 (5th Cir. 1971); Greene v. United States, 454 F.2d 783 (9th Cir. 1971); Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Baxter (1983), 9 C.C.C. (3d) 555, [1983] C.A. 412; R. v. Gingras (1987), 61 C.R. (3d) 361; R. v. Dionne (1987), 79 N.B.R. (2d) 297; referred to: Mathews v. United States, 108 S.Ct. 883 (1988); Connelly v. Director of Public Prosecutions, [1964] 2 All E.R. 401; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Collins, [1987] 1 S.C.R. 265; Lemieux v. The Queen, [1967] S.C.R. 492; Bergstrom v. The Queen, [1981] 1 S.C.R. 539; R. v. Sharp, [1987] 3 All E.R. 103; R. v. Howe, [1987] 1 All E.R. 771; R. v. Fitzpatrick, [1977] N.I. 20; R. v. Mistra (1986), 32 C.C.C. (3d) 97; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Ashoona, N.W.T.C.A., January 19, 1988, unreported, reversing (1987), 38 C.C.C. (3d) 163; R. v. Biddulph (1987), 34 C.C.C. (3d) 544; R. v. Keyowski, [1988] 1 S.C.R. 657.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 11 (f), 24(2) .
Criminal Code, ss. 7(3) , 17 , 605(1) (a).
Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 137(2).
Authors Cited
American Law Institute. Model Penal Code and Commentaries. As adopted at the 1962 annual meeting of the American Law Institute at Washington, D.C., May 24, 1962. Philadelphia: American Law Institute, 1980.
Colvin, Eric. Principles of Criminal Law. Toronto: Carswells, 1986.
Donnelly, Richard C. "Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs" (1951), 60 Yale L.J. 1091.
Fletcher, George P. Rethinking Criminal Law. Boston: Little, Brown, 1978.
France, Simon. "Problems in the Defence of Entrapment" (1988), 22 U.B.C. Law Rev. 1.
Park, Roger. "The Entrapment Controversy" (1976), 60 Minn. L.R. 163.
Rossum, Ralph A. "The Entrapment Defense and The Teaching of Political Responsibility: The Supreme Court as Republican Schoolmaster" (1978), 6 Amer. J. Crim. Law 287.
United States. U.S. National Commission on Reform of Federal Laws. A Proposed New Federal Criminal Code. (Brown Commission Final Report.)
APPEAL from a judgment of the British Columbia Court of Appeal (1985), 49 C.R. (3d) 169, dismissing an appeal from a judgment of Wetmore Co. Ct. J. (1983), 34 C.R. (3d) 228. Appeal allowed.
Sidney B. Simons and J. Douglas Jevning, for the appellant.
S. David Frankel and Patricia A. Babcock, for the respondent.
The judgment of the Court was delivered by
Lamer J.‑‑
Introduction
The central issue in this appeal concerns the doctrine of entrapment. The parties, in essence, ask this Court to outline its position on the conceptual basis for the application of the doctrine and the manner in which an entrapment claim should be dealt with by the courts. Given the length of these reasons due to the complexity of the subject, I have summarized my findings on pages 964 to 966 of these reasons.
The Facts
The appellant was charged with unlawful possession of a narcotic for the purpose of trafficking. He testified at trial and, at the close of the case for the defence, brought an application for a stay of proceedings on the basis of entrapment. The application was refused and a conviction entered by Wetmore Co. Ct. J., sitting without a jury, in written reasons reported in (1983), 34 C.R. (3d) 228. A notice of appeal from that decision was filed with the British Columbia Court of Appeal but the appeal books were not filed within the time prescribed. Counsel for the appellant sought and obtained, with the consent of Crown Counsel, an order dispensing with the requirement that transcripts of evidence be filed and permitting counsel to base their arguments solely on the reasons for judgment of Wetmore Co. Ct. J. The Chief Justice of British Columbia directed that a panel of five judges hear the appeal. For the reasons given by Craig J.A., on behalf of the Court, the appeal was dismissed. This decision is now reported at (1985), 49 C.R. (3d) 169. Leave to appeal was granted by this Court.
It is necessary to describe in some detail the relevant facts. In view of the particular procedural history of this appeal, I think it is appropriate to reproduce in its entirety the summary of the evidence provided for in the reasons for judgment of Wetmore Co. Ct. J. (at pp. 234‑37):
Through information obtained from an officer of the Ontario Provincial Police, one Momotiuk was brought to British Columbia. This man had apparently been dealing in narcotics in Kenora, Ontario. He was placed under police "handlers" in Vancouver, he visited the accused on a number of occasions, and eventually a transaction was set up whereby the accused would deliver cocaine to Momotiuk.
The accused testified. He first met Momotiuk in 1979 in Montreal where the accused was visiting one Franks. The accused understood Franks and Momotiuk to be associated in some clothing franchise.
The accused at this time was attempting to develop some property for sale near De Roche, British Columbia, and told Franks and Momotiuk of this and both expressed some interest in buying. Both arrived in British Columbia in October 1979. In the course of this visit the accused says that Momotiuk told him he was a drug trafficker in Kenora and wanted some "Thai pot". The accused says he had no interest.
Momotiuk, according to the accused, called later still wanting to make drug deals, and the accused told him he was interested only in real estate deals.
The accused again went to a yoga retreat near Montreal in December 1979. Franks and Momotiuk visited him there. Momotiuk produced some cocaine, which he and Franks used, and again asked the accused to become a supplier. A few days later they met again. At this time conversation was directed to show Momotiuk as an importer of drugs on a large scale, and again the accused was invited to join in and refused.
In January and February there were approximately seven telephone calls from Momotiuk to the accused soliciting his involvement. The accused says he refused.
In mid‑February 1980 Momotiuk visited the accused again, asking him to supply drugs. The accused says he told Momotiuk he was not interested and asked to be left alone. Momotiuk continued to visit two or three times and also telephoned.
In March the accused says Momotiuk arrived again. They went for a walk in the woods. Momotiuk produced a pistol and was going to show the accused his marksmanship. He was dissuaded because of the probability of startling the horses nearby. The accused says that at this remote area Momotiuk said, "A person could get lost." This the accused says was a threat. He says the matter of drugs was again raised and the accused says he was adamant that he had no knowledge of drugs sources.
The accused was asked to phone him twice and did not. One Matheson attended at the accused's residence on 13th March with a message that Momotiuk was very excited and wanted to see him at the Biltmore Hotel. The accused says he wanted nothing to do with Momo­tiuk but was terrified of him and agreed to go into town to the Biltmore. He also says that Matheson told him Momotiuk had some friends with him. This the accused took to be other members of this illegal syndicate.
While en route to the city he twice noted a car which seemed to be following him. This was probably so, because undercover police officers were doing a surveillance at the time.
On arrival at the hotel he met Momotiuk. Again he was informed of the syndicate. He was asked then if he wished to see the buying power. The accused agreed. He was directed to a car outside the hotel. In this car was an open briefcase with $50,000 exposed. The custodian, unknown to the accused, was an undercover policeman.
The accused returned to the hotel, Momotiuk asked him to get a sample and gave him $50 for this purpose.
The accused left and went to a supplier he had known of from years back. This supplier, one Goldsmith, now dead, heard the accused's story and agreed to supply "in order to get Doug (Momotiuk) off me". He obtained the sample and delivered it to Momotiuk, who tested it and said to get as much as he could. He returned to the supplier and offered $35,000 to $40,000 for a pound.
At the meeting the following day the accused had still not acquired the drugs and he says that at this point he was told to get his act together, in a threatening way.
I need not detail the accused's evidence of the following two days. He obtained 12 ounces of cocaine, and was to pay $27,000 for it. This credit, he says, was extended to him by Goldsmith on the basis of payment when delivered to Momotiuk. It was in the course of this delivery that he was arrested.
It is on the basis of this testimony that the accused says he was entrapped. Momotiuk, Matheson and Franks did not testify. Neither did "Bonnie", the accused's former wife, who was apparently present at one of the Montreal meetings, where cocaine was produced and some discussion took place.
The accused has drug convictions in 1972 and 1976, two in 1978 and one in 1979. Those in 1976, one in 1978 and one in 1979 involved cocaine. He says his former use of drugs arose to relieve back pain, but in 1978 he discovered relief from yoga and gave up the use of narcotics. The offence in 1979 was a fall from grace when he met up with old friends.
Decisions of the Courts Below
Wetmore Co. Ct. J. held that the judgment of Estey J. in Amato v. The Queen, [1982] 2 S.C.R. 418, and of the British Columbia Court of Appeal in R. v. Jewitt (1983), 34 C.R. (3d) 193 (rev'd on other grounds, [1985] 2 S.C.R. 128), established that entrapment is recognized as part of the abuse of process doctrine and a stay of proceedings arising from a finding of entrapment is not a "defence" in the traditional sense of that word. This distinction between a "stay" and a "defence" was important in terms of the burden and standard of proof. Wetmore Co. Ct. J. decided the evidential burden rested on the party seeking the stay to satisfy a court on a balance of probabilities that there had been entrapment which would constitute an abuse of the courts' processes. He stated at p. 232:
To ask the court to preclude either side‑‑the state, represented by the prosecution, or the defence‑‑from the adjudication of their differences must involve satisfying the court that its processes cannot result in the attainment of justice through the traditional avenue of a full and open trial. To make that finding, it seems fundamental to a system of justice in a free and democratic society that the court must be satisfied that its processes have been so abused that those very processes are precluded from attaining justice. Satisfaction in such a state of affairs existing must be more than a reasonable suspicion.
In Wetmore Co. Ct. J.'s view, the presumption of innocence until proven guilty beyond a reasonable doubt was not violated. He stated that this presumption applied at trial while a motion for a stay was to really determine whether the appellant would have a trial. It was not significant that in this case the motion came at the end of the proceeding: "What counsel is asking is that I stop the proceedings before a verdict. This amounts to aborting the trial" (p. 234). Wetmore Co. Ct. J.'s view of the nature of the entrapment claim may be discerned in the following passage, at p. 234:
This evidentiary burden is of great importance in the matter of entrapment because fundamental to any such finding is the conclusion that the accused had no disposition to commit the crime but succumbed to improper enticement by authorities of the state. As in all matters of the mental element in criminal matters, the state of mind usually comes from inferences from established facts. I must test those facts to say then which is more probable as to the accused's predisposition, not merely if something is rationally possible.
After reviewing the evidence, Wetmore Co. Ct. J. noted, at p. 237, that the appellant's evidence found support in the testimony of the police officers to some extent: "They agree that Momotiuk was difficult to `handle"' The stay was refused, however, because the appellant had not met the burden of proof. Wetmore Co. Ct. J. concluded, at p. 237:
In fairness to the accused, I should say that, if I were to decide this issue on the basis of the Crown having to negate entrapment beyond a reasonable doubt, I would have such a doubt.
I find, however, that it is far more probable that the accused became involved in this transaction for profit, rather than through persistent inducement and fear. Given his record and the alacrity with which he produced on seeing the $50,000 in March 1980, I find it much more probable that he then saw a situation of profit and acted upon it. There is no doubt in my mind that the opportunity was made available through the tactics of the police and their agent, but that falls short of entrapping a person into the commission of an act that he had no intention of doing.
The British Columbia Court of Appeal held that having regard to this Court's decision in Jewitt, supra, and the opinion of several of the Justices in Amato, supra, entrapment is available in response to a criminal charge as an aspect of abuse of process but not as a substantive defence. It was further held that the determination of the existence of entrapment is a question of law to be decided by the trial judge. The appellant bore the onus of proof on a balance of probabilities, since an accused claiming entrapment is seeking to have the case disposed of on the basis of police misconduct as opposed to the merits.
Having decided the applicable legal issues, the Court of Appeal referred to the trial judge's conclusion that the appellant acted out of a desire for profit. Craig J.A. then stated at p. 183: "I think that the judge was right in concluding that there was no entrapment in this case." The appeal was therefore dismissed.
Position of the Parties
This appeal was heard at the same time as the appeal in R. v. Showman, [1988] 2 S.C.R. 893. The decision in Showman is also being delivered today. In his written argument the appellant in the present case, in addition to his own submissions, adopted those put forward by the appellant in Showman. The position of the respondent in both cases is identical in all material respects.
Appellant
The appellant asserts that there are two types of entrapment. The first is objective and involves an evaluation of police conduct in order to determine whether prosecution of the accused would amount to an abuse of the courts' process. It is submitted that this analysis is a question of law to be addressed by the trial judge. If objective entrapment is found, the proper remedy is a stay of proceedings. This is purely a question of police misconduct and as such is determined wholly independently of the accused's state of mind.
The second type of entrapment is subjective and the focus is on the accused's state of mind. The test is whether the accused possesses the necessary predisposition to commit the crime; if he or she does not, then the element of mens rea is missing. This can exist, in the appellant's submission, even when the police are "blameless" in terms of the character of their conduct toward the accused.
The appellant draws an analogy to other excusing defences, such as necessity, which focus on the accused's response to a given set of facts. The appellant asserts that in subjective entrapment where the inquiry is on the accused's state of mind, like other mens rea issues, the question is one of fact to be decided by the jury. The onus would lie on the Crown to prove beyond a reasonable doubt that the accused was predisposed to commit the offence. In the result, the appellant submits his conviction should be quashed as the trial judge stated he had a reasonable doubt as to whether the appellant was entrapped.
Respondent
The respondent asserts that there is only one conception of entrapment and it is rooted in the doctrine of abuse of process. Entrapment is not a defence since the necessary mens rea will be present and the conduct of the accused will be neither excused nor justified. The respondent submits, however, that the test for determining whether or not there has been unlawful entrapment is an amalgam of subjective and objective tests: the defence is limited to situations where the conduct of the police has gone beyond permissible limits and the crime would not have been committed but for such activity. The police conduct must be, to use the respondent's phrase, the causa sine qua non of the offence.
With respect to procedural issues, the respondent asserts the question of entrapment is one of law to be decided by the trial judge. The onus would be on the accused to establish on a balance of probabilities that the proceedings amounted to an abuse of the court's processes.
Analysis
I. The Context
One need not be referred to evidence to acknowledge the ubiquitous nature of criminal activity in our society. If the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police; as crimes become more sophisticated so too must be the methods employed to detect their commission. In addition, some crimes are more difficult to detect. As Chief Justice Laskin in Kirzner v. The Queen, [1978] 2 S.C.R. 487, explained at pp. 492‑93:
Methods of detection of offences and of suspected offences and offenders necessarily differ according to the class of crime. Where, for example, violence or breaking, entering and theft are concerned, there will generally be external evidence of an offence upon which the police can act in tracking down the offenders; the victim or his family or the property owner, as the case may be, may be expected to call in the police and provide some clues for the police to pursue. When "consensual" crimes are committed, involving willing persons, as is the case in prostitution, illegal gambling and drug offences, ordinary methods of detection will not generally do. The participants, be they deemed victims or not, do not usually complain or seek police aid; that is what they wish to avoid. The police, if they are to respond to the public disapprobation of such offences as reflected in existing law, must take some initiatives.
The same point is made by Estey J. in Amato, supra, at p. 457. I would note that in addition to so‑called "victimless" or "consensual" crimes, active law enforcement techniques may be used to combat crimes where there are victims, but those victims are reluctant to go to the police because of intimidation or blackmail, as may be the case with the offence of extortion. Further, some criminal conduct may go unobserved for a long time if the victims are not immediately aware of the fact that they have been the subject of criminal activity, in the case, for example, of commercial fraud and also bribery of public officials. In general it may be said that many crimes are committed in secret and it is difficult to obtain evidence of their commission after the fact.
Obviously the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law. This has long been recognized by the common law (see R. Donnelly, "Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs" (1951), 60 Yale L.J. 1091, at pp. 1091‑92). Laskin C.J., in Kirzner, supra, noted at p. 493 that with respect to consensual crimes, the police employ a number of people and techniques:
They may, for example, use a spy, either a policeman or another person, to obtain information about a consensual offence by infiltration; they may make arrangements with informers who may be parties to offences on which they report to the police to enable the other parties to be apprehended; or the police may use decoys or themselves act under cover to provide others with the opportunity to commit a consensual offence or to encourage its commission. Going one step farther, the police may use members of their force or other persons to instigate the commission of an offence, planning and designing it ab initio to ensnare others.
There is a crucial distinction, one which is not easy to draw, however, between the police or their agents‑‑acting on reasonable suspicion or in the course of a bona fide inquiry‑‑providing an opportunity to a person to commit a crime, and the state actually creating a crime for the purpose of prosecution. The former is completely acceptable as is police conduct that is directed only at obtaining evidence of an offence when committed (see Amato, supra, per Estey J., at p. 446). The concern is rather with law enforcement techniques that involve conduct that the citizenry cannot tolerate. In many cases the particular facts may constitute a classic example of what may be referred to as "entrapment" which has been described by an American judge as "the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer" (Sorrells v. United States, 287 U.S. 435 (1932), at p. 454, per Roberts J., cited by Dickson C.J. in Jewitt, supra, at p. 145).
II. The Jurisprudence
A: Canadian Developments
The defence of entrapment was considered by the Court in Amato, supra. The accused was convicted of two counts of trafficking in cocaine. The British Columbia Court of Appeal affirmed the convictions and a further appeal was dismissed by this Court, Laskin C.J. and Estey, McIntyre and Lamer JJ. dissenting.
Writing on behalf of himself, Martland, Beetz and Chouinard JJ., Dickson J. (as he then was) was of the view that assuming the defence of entrapment to be available it did not arise on the facts of the case (p. 464). He referred to the conclusions of the trial judge and the judges of the British Columbia Court of Appeal and stated, at p. 466:
The four British Columbia judges before whom the matter has come have been unanimous in concluding that, on the facts, the defence of entrapment does not arise. It does not seem to me to fall to this Court to retry the case and arrive at different findings.
Ritchie J., writing for himself, was of the view that entrapment was available in defence to a charge in circumstances which he describes as follows, at p. 473:
In my view it is only where police tactics are such as to leave no room for the formation of independent criminal intent by the accused that the question of entrapment can enter into the determination of his guilt or innocence.
Although Ritchie J. was of the view that the record disclosed the police instigated the course of events and Amato was "simply an incidental factor necessarily employed by the police" to achieve the objective of locating drug sources (pp. 467‑68), he did not think the accused's evidence was sufficient to support the claim of entrapment (p. 472):
It was contended in the present case that Amato was subjected to a threat of violence against himself if he failed to cooperate with the police plan for procuring the drug. If this had in fact been the case I am satisfied that it might well have supported a defence of entrapment, but a careful study of the evidence fails to disclose to me that there was any such threat although the police officer who was allegedly seeking drugs for some "strong arm" operators from the United States did make mention of the fact that they carried firearms and this apparently made Amato nervous.
Whether the activities of the police can be said to have amounted to the "calculated inveigling or persistent importuning" by the police mentioned by Mr. Justice Laskin (as he then was) in R. v. Ormerod, [1969] 2 O.R. 230, at p. 238, must depend on the facts of each case and in the present case, although drug transactions were suggested to Amato by an agent provocateur, this is not of itself enough to invoke the defence of entrapment or to affect the fact that Amato must have known that what he was doing was wrong.
Estey J. writing for himself, Laskin C.J., McIntyre and Lamer JJ., also held that the defence of entrapment existed in Canadian law, not as a traditional substantive defence, but as an aspect of the abuse of process doctrine which enabled a court to enter a stay of proceedings in circumstances where allowing the accused to stand trial would offend the courts' sense of justice. On the facts, Estey J. concluded that the accused was entrapped and thus he would have allowed the appeal. Of importance for the purposes of the present appeal is the analytical approach set out by Estey J. which differs markedly from that found in the opinion of Ritchie J.
Estey J.'s opinion provides a summary of the doctrine of entrapment in the United States, Canada and the United Kingdom as it has emerged in the jurisprudence and as discussed in various proposals for law reform in these jurisdictions. I will refer to some of these developments later. The key parts of the judgment of Estey J. may be found at pp. 445‑47 where he outlines the rationale and criteria for the application of the defence.
At the outset, Estey J. explained that entrapment is not actually a "defence" in the traditional sense of the term. Earlier in his reasons, Estey J. had referred to s. 7(3) of the Criminal Code as a possible source for the recognition of the defence of entrapment in criminal law. Section 7(3) provides:
7. ...
(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of the Parliament of Canada, except in so far as they are altered by or are inconsistent with this Act or any other Act of the Parliament of Canada.
It appears, however, from the following passage that Estey J. did not think the true source for recognition of the entrapment claim lay in s. 7(3) of the Code; rather, it arose from the inherent jurisdiction of a court to protect itself from an abuse of its own processes. As such, entrapment cannot be said to be a substantive defence (p. 445):
While it is frequently referred to in legal writings and sometimes in the courts as the `defence of entrapment' it is not a defence in the traditional sense of that term. A successful defence leads to an acquittal on the charge, a determination that the offence has not been committed by the accused. Here, axiomatically, the crime from a physical point of view at least has been committed. Indeed it may be that the necessary intent and act have combined to form a complete crime. The successful application of the doctrine of entrapment, if it be a defence in the ordinary sense, would support an acquittal. The Criminal Code authorizes acquittals in somewhat similar circumstances as in the case of the defence of duress. However, as will be seen later, the successful application of the concept of entrapment leads to a stay of prosecution, the court withholding its processes from the prosecution on the basis that such would bring the administration of justice into disrepute. This is an exercise of the inherent powers of the courts. Entrapment is not in a traditional sense a defence. For convenience and ease of reference as well as to conform to the present vocabulary of the law, I sometimes refer to the doctrine as the `defence of entrapment' although in strict law it is not a defence. Therefore, for this technical reason, it may not be necessary to invoke s. 7(3) other than to illustrate by analogy the continuing flexibility of the criminal law within and without the Criminal