R. v. Barnes

R. v. Barnes
Collection
Supreme Court Judgments
Date
1991-02-28
Report
[1991] 1 SCR 449
Case number
21956
Judges
Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William
On appeal from
British Columbia
Subjects
Courts
Criminal law
Notes
SCC Case Information: 21956
Decision Content
R. v. Barnes, [1991] 1 S.C.R. 449
Philip Ben Barnes Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Barnes
File No.: 21956.
1990: October 31; 1991: February 28.
Present: Lamer C.J. and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Defences ‑‑ Entrapment ‑‑ Drug‑trafficking ‑‑ "Buy‑and‑bust" program in area of city with trafficking problem ‑‑ Accused in this area ‑‑ Undercover police officer approached accused on hunch that he would have drugs ‑‑ Whether entrapment through random virtue‑testing.
Courts ‑‑ Appeal ‑‑ Jurisdiction ‑‑ Crown appealing finding of entrapment which resulted in stay but not findings of guilt ‑‑ Appeal allowed by Court of Appeal and new trial ordered ‑‑ This Court finding conditions for entrapment not met ‑‑ Crown asking for convictions to be entered in place of order for new trial ‑‑ Whether this Court has jurisdiction to replace order for new trial with convictions ‑‑ Criminal Code, R.S.C., 1985, c. C-46, s. 686(4) (b)(ii), 695(1) .
The Vancouver Police were conducting a "buy‑and‑bust" operation in an area ‑‑ the Granville Mall ‑‑ considered to have a drug trafficking problem. In a "buy‑and‑bust" operation, undercover police officers attempt to buy illicit drugs from individuals who appear, in the officers' opinion, to be inclined to sell drugs. The appellant, who in the words of a police officer was "dressed scruffy", was in the Granville Mall area when approached on a "hunch" by an undercover police officer. The officer asked him if he had any "weed". Despite a negative answer, the officer asked the question again and persisted until the appellant agreed to sell a small amount of cannabis resin. Another officer arrested the appellant shortly afterwards.
The appellant was found guilty of trafficking in cannabis resin, of the included offence of possession of cannabis resin for the purpose of trafficking, and of possession of marijuana. The trial judge found, however, that the police officer had engaged in "random virtue testing" and granted a judicial stay for entrapment. The British Columbia Court of Appeal allowed the Crown's appeal of the finding of entrapment and ordered a new trial. The issues before this Court were: (1) whether appellant was subjected to random virtue‑testing; and, (2) whether this Court, absent a cross‑appeal by the Crown, has jurisdiction to modify the court of appeal's decision allowing the Crown's appeal from the judicial stay of proceedings and enter three convictions.
Held (L'Heureux‑Dubé J. dissenting in part, McLachlin J.dissenting): The appeal should be dismissed.
Per Lamer C.J. and Wilson, La Forest, Sopinka, Gonthier, Cory and Stevenson JJ.: The police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. The notion of being "associated" with a particular area for these purposes does not require more than being present in the area. Such randomness is permissible within the scope of a bona fide inquiry.
Random virtue‑testing only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that: (a) the person is already engaged in the particular criminal activity, or (b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.
The police officer here did not have a "reasonable suspicion" that the appellant was already engaged in unlawful drug‑related activity. The factors drawing her attention to the appellant ‑‑ his manner of dress, the length of his hair ‑‑ were not sufficient to give rise to a reasonable suspicion that criminal acts were being committed. The subjectiveness of her decision to approach the appellant, based on a "hunch" or "feeling" rather than extrinsic evidence, also indicated that the appellant did not arouse a reasonable suspicion as an individual. The appellant, however, was presented with the opportunity to sell drugs in the course of a bona fide inquiry. The officer's conduct was motivated by the genuine purpose of investigating and repressing criminal activity and the investigation was directed at a suitable area within Vancouver. Although the size of the area itself may indicate that the investigation is not bona fide, it was reasonable for the Vancouver Police Department to focus its investigation on the Granville Mall.
The appellant, when he was in the Granville Mall, was in a location where it was reasonably believed that drug‑related crimes were occurring. The officer's conduct was therefore justified.
Section 695(1) does not allow this Court to make, in all circumstances, a decision that in its opinion the Court of Appeal could have and should have made. This Court has jurisdiction under s. 695(1) to modify an order at the request of the Crown when there is an appeal by the Crown making such a request. When there is no appeal by the Crown, an appellant cannot leave this Court with less than what he gained from the Court of Appeal.
In the absence of an appeal by the Crown, this Court has no jurisdiction to allow the Crown's request that the order below be modified. To hold otherwise would allow the Crown to appeal to this Court where such an opportunity has not been provided by the Criminal Code or the Supreme Court Act . The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. As a result, there is no statutory provision which would allow the Crown to appeal from the Court of Appeal's judgment. Absent a statutory right of appeal, there is no right of appeal.
Per L'Heureux‑Dubé J. (dissenting in part): The appeal on the entrapment issue should be dismissed for the reasons given by Lamer C.J.
As a general rule, an appellate court cannot disturb a verdict of acquittal or modify an order directing a new trial, absent an appeal by the Crown asking it to do so. Appellate jurisdiction is conferred entirely by statute. The rationales underlying the general rule, however, become inoperative in certain situations. One such situation deals with circumstances where the Kienapple principle is triggered.
Due to the operation of the rule against multiple convictions, an exception to the general rule regarding Crown appeals and appellate jurisdiction has been formulated. The general rule has little meaning in a situation where the Kienapple principle applies. The continued effect of the "acquittal" is lifted and the conviction is reinstated should the Crown's appeal of the stay, by appealing the application of the rule itself, be successful or should the accused successfully appeal one of the convictions. There is really nothing of substance for the Crown to appeal.
No "live" issue regarding the second branch of the entrapment test existed. In this light, it is as unreal to entertain arguments of prejudice to the accused in entering convictions as it is to order a new trial in such circumstances. The lack of adjudication by the trial judge regarding the second branch of the entrapment test can neither prevent the entering of a conviction nor justify the order for a new trial on that issue. Accordingly, the Court of Appeal erred in ordering a new trial on this second branch of the test of entrapment.
While not laying waste to the general rule, the present case offers convincing reasons for treating it in the same fashion as a situation falling more squarely within the Kienapple exception. Like the situation in a Kienapple context, the full force of the general rule obliging the Crown to appeal is avoided in an entrapment situation because of the nature of the proceedings and the underpinnings of the "acquittal" entered in such situations. The Crown's position, after an appeal by the accused in an entrapment situation, is closely analogous to that in a Kienapple context: there is nothing meaningful for the Crown to appeal. If the Crown's appeal is successful and the entrapment arguments of the accused are unsuccessful on appeal, the stay will be set aside and the convictions will stand. As in a Kienapple situation, the "acquittal" fails to remain relevant after the entrapment issue is dispensed with and an accused cannot ignore that necessary result. Requiring the Crown to appeal the "acquittal" in order to formalize this necessary consequence is a meaningless formality easily dispensed with in a Kienapple situation. The same result should also obtain in an entrapment situation.
Per McLachlin J. (dissenting): Determination of entrapment must involve a balancing between the individual interest in being left alone and the state's interest in the repression of crime. Only where considerations such as fairness, justice and the need for protection from crime tip the balance in favour of the state will police conduct which offends the individual interests at stake be acceptable.
The significance of the individual interest at stake here must not be underestimated and the adverse effect that police investigatory techniques can have on this interest should not be overlooked. Limits must be placed on the state's ability to intrude into the daily lives of its citizens. A further risk inherent in overbroad undercover operations is that of discriminatory police work, where people are interfered with not because of reasonable suspicion but because of the colour of their skin or the quality of their clothing and their age.
The test for entrapment must permit the measuring of relative harms. In determining whether there was a bona fide inquiry, the court must consider not only the motive of the police and whether there is crime in the general area, but also other factors relevant to the balancing process, such as the likelihood of crime at the particular location targeted, the seriousness of the crime in question, the number of legitimate activities and persons who might be affected, and the availability of other less intrusive investigative techniques. The question is whether the interception at the particular location was reasonable having regard to the conflicting interests of private citizens in being left alone from state interference and of the state in suppressing crime. If the answer to this question is yes, then the inquiry is bona fide. This test offers sufficient guidance to the police.
That crime may be said to occur generally within a given area does not suffice to establish a bona fide inquiry, given proper police motives. Other factors must be considered. The first is the likelihood of crime in the particular area targeted. The fact that trafficking occurred at different locations in the six‑block area of the mall does not establish that trafficking was likely to occur at the time and place where the appellant was intercepted. The second relates to the possibility that this undercover operation would interfere with the legitimate activities of law‑abiding citizens. This factor, while not in itself conclusive, weighed against the right of undercover police to intercede at will. On the other side of the balance must be weighed the seriousness of the criminal activity which the police have targeted. The offence here in question, while not to be condoned, could not be considered as one of the most serious and alternative investigatory techniques were available to detect it.
The individual interest in being left alone and free to pursue one's daily business without being confronted by undercover police operatives vastly outweighs the state interest in the repression of crime. The police officer here, therefore, was not acting pursuant to a bona fide inquiry.
Cases Cited
By Lamer C.J.
Applied: R. v. Mack, [1988] 2 S.C.R. 903; referred to: R. v. Jewitt, [1985] 2 S.C.R. 128; Guillemette v. The Queen, [1986] 1 S.C.R. 356.
By L'Heureux‑Dubé J. (dissenting in part)
R. v. Mack, [1988] 2 S.C.R. 903; Rickard v. The Queen, [1970] S.C.R. 1022; Guillemette v. The Queen, [1986] 1 S.C.R. 356; R. v. Provo, [1989] 2 S.C.R. 3; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Prince, [1986] 2 S.C.R. 480; R. v. Terlecki (1983), 4 C.C.C. (3d) 522 (Alta. C.A.), aff'd [1985] 2 S.C.R. 483; Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. Cassidy, [1989] 2 S.C.R. 345; R. v. Jewitt, [1985] 2 S.C.R. 128.
By McLachlin J. (dissenting)
R. v. Mack, [1988] 2 S.C.R. 903; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Wong, [1990] 3 S.C.R. 36.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(4) (b)(ii), 691(2) (a), 693(1) (a), (b), 695(1) .
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(3) .
Authors Cited
Jordan, James C. "Application and Limitations of the Rule Prohibiting Multiple Convictions: Kienapple v. The Queen to R. v. Prince" (1985), 14 Man. L.J. 341.
APPEAL from a judgment of the British Columbia Court of Appeal (1990), 54 C.C.C. (3d) 368, allowing an appeal, setting aside a stay granted by Leggatt Co. Ct. J. and ordering a new trial. Appeal dismissed, L'Heureux‑Dubé J. dissenting in part, McLachlin J. dissenting.
Peter M. Kendall, for the appellant.
S. David Frankel, Q.C., for the respondent.
//Lamer C.J.//
The judgment of Lamer C.J. and Wilson, La Forest, Sopinka, Gonthier, Cory and Stevenson JJ. was delivered by
Lamer C.J. -- This case involves a consideration of the defence of entrapment as set out by this Court in R. v. Mack, [1988] 2 S.C.R. 903. In particular, this Court is asked whether the accused was subjected to random virtue-testing by an undercover police officer in the city of Vancouver. This case also raises the question of whether this Court, at the request of the Crown, has jurisdiction to modify the decision of a court of appeal which has allowed an appeal by the Crown from a judicial stay of proceedings entered at trial.
Facts
On January 12, 1989, the appellant sold one gram of hashish to an undercover police officer near the Granville Mall area of Vancouver. The parties do not dispute the facts surrounding the sale, which are as follows.
The undercover officer was involved in a "buy-and-bust" operation conducted by the Vancouver Police Department. In a buy-and-bust operation, undercover police officers attempt to buy illicit drugs from individuals who appear, in the opinion of the officers, to be inclined to sell such drugs. If an officer is successful, the individual is immediately arrested for trafficking.
This particular operation was undertaken by the Department with respect to the Granville Mall area in the city of Vancouver, which covers a six-block section of Granville Street. On the day of the arrest, the undercover officer approached the accused, Philip Barnes, and his friend, as they were walking towards Granville Street. The officer testified at trial that she approached the accused and his friend because she had "a hunch, a feeling that they'd -- possibly might be in possession". She believed that he and his friend fit the description of persons who possibly had drugs in their possession and who would be willing to sell to her: "I had a feeling. They fit my general criteria. I look for males hanging around, dressed scruffy and in jeans, wearing a jean jacket or leather jacket, runners or black boots, that tend to look at people a lot." The officer indicated that there was nothing else that aroused her suspicions.
The officer approached the accused and asked him if he had any "weed". He said "no", but his friend repeated to him: "She wants some weed." The accused again responded negatively. The officer persisted and the accused then agreed to sell a small amount of cannabis resin to the officer for $15. Shortly afterwards, the accused was arrested by another officer and small amounts of cannabis resin and marijuana were seized from his person.
The accused was tried in the County Court of Vancouver before Leggatt Co. Ct. J., and was found guilty of trafficking in cannabis resin, of the included offence of possession of cannabis resin for the purpose of trafficking, and of possession of marijuana. The accused conceded that he sold illicit drugs to the officer, but argued that a judicial stay for entrapment should be directed. He claimed that he had no intention of selling drugs on the day in question, but felt sorry for the undercover officer; he agreed to sell only because he believed that his friend wanted to meet a woman and that this was a way of gaining an introduction. The trial judge held that the police officer had engaged in "random virtue testing", which was unacceptable according to the judgment of this Court in Mack, supra, and therefore ordered a judicial stay of the proceedings.
The British Columbia Court of Appeal allowed the Crown's appeal and ordered a new trial.
Judgments Below
County Court of Vancouver (Leggatt Co. Ct. J.)
On the basis of the judgment of this Court in R. v. Mack, supra, Leggatt Co. Ct. J. of the County Court of Vancouver held that the undercover officer had engaged in "random virtue testing" and therefore directed the entry of a judicial stay on the charges.
The trial judge based his decision on two principal conclusions. First, he believed that the police investigation failed to target a sufficiently specific physical area where it was suspected that crimes would be committed. The accused was approached some distance from the specific area where drug trafficking was taking place most frequently. Secondly, he found as a question of fact that the police officer did not have a reasonable suspicion that the accused was likely to traffic in illicit drugs. The trial judge stated:
The Granville Mall, which is known as an area of considerable drug activity, is also known in Vancouver as Theatre Row. I have described it as being in the centre of Vancouver, and it contains a broad cross-section of commercial activity, a lot of it oriented to the entertainment industry. Many movie theatres are contained in the mall area.
When one examines the criteria used by this undercover officer as to who to approach to try to induce a drug transaction, she is describing a very high percentage of young citizens who are there for perfectly legitimate reasons. No conduct was observed on the part of the [accused] or his companion prior to the drug purchase which would provide a reasonable suspicion that they were already engaged in criminal activity. The specific area of the purchase was a distance from the area described by the staff sergeant as the most heavily frequented area for drug traffickers, which was the sky train Granville Street entrance area. There was no evidence that the [accused] or his companion were observed engaging in conduct which would lead to any suspicion.
Leggatt Co. Ct. J. did not believe it was necessary to inquire as to mala fides on the part of the officer, since he found that she had engaged in random virtue testing:
Now, I make no finding of mala fides, but it is not reasonable on the facts at bar to suspect that each person who matches the general criteria provided by the undercover officer for her targets is engaged in drug trafficking. In my view, given this very general criteria, given the fact that the individual was not at the immediate centre of drug trafficking, and given the fact there was no prior observation of conduct which leads to a reasonable inference of guilt, I am of the view that this particular undercover officer was conducting a random virtue test as described by Mr. Justice Lamer, and clearly on the authorities this is not acceptable.
British Columbia Court of Appeal (Hinkson J.A. for the Court)
(1990), 54 C.C.C. (3d) 368
The Court of Appeal overturned the judgment of the County Court, deciding the question of law that the facts did not give rise to a reasonable inference of entrapment.
Hinkson J.A. rejected the accused's contention that the police department was required to limit its investigation to "specific targeted areas of the mall" where drug-related crimes were most likely to be committed. The police were entitled, in his opinion, to carry out an investigation that focused on the whole of the Granville Mall. He stated at pp. 372-73:
In my opinion, the decision in Mack does not support that contention. The evidence at trial disclosed that sales of narcotics took place up and down the mall and it was for that reason that the undercover officer walked up and down the mall approaching persons and providing an opportunity to sell illicit drugs to her.
In reaching his conclusion that the undercover officer had entrapped the accused into trafficking in cannabis resin, the trial judge rested his decision upon the fact that the undercover agent did not have a reasonable suspicion that the accused was selling drugs. But he overlooked the fact that the undercover officer was engaged in a bona fide investigation of criminal activity involving the area of the Granville Mall and that she was entitled, therefore, to offer to the accused an opportunity to sell drugs to her. In doing so, she was not engaged in random virtue-testing as described by Lamer J. in Mack.
The Court accordingly ordered a new trial, at p. 373, to be held in order to determine whether there had been entrapment under the second branch of the test in Mack, namely, "to consider whether or not the conduct of the undercover agent went beyond providing an opportunity and induced the commission of the offence."
Analysis
Did the police officer engage in random virtue-testing?
To resolve this appeal, this Court must consider whether the conduct of the undercover police officer was acceptable in light of the guidelines set out in Mack, supra. In Mack, I attempted to define the circumstances in which police conduct in the course of investigating and uncovering criminal activity ceases to be acceptable and, instead, amounts to the unacceptable entrapment of individuals. The defence of entrapment is based on the notion that limits should be imposed on the ability of the police to participate in the commission of an offence. As a general rule, it is expected in our society that the police will direct their attention towards uncovering criminal activity that occurs without their involvement.
As I summarized in Mack, at pp. 964-65, there are two principal branches of the test for entrapment. The defence is available 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;
(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.
. . .
The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct 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.
It is apparent that the police officer involved in this case did not have a "reasonable suspicion" that the accused was already engaged in unlawful drug-related activity. The factors that drew the officer's attention to this particular accused -- his manner of dress, the length of his hair -- were not sufficient to give rise to a reasonable suspicion that criminal acts were being committed. Furthermore, the subjectiveness of the officer's decision to approach the accused, based on a "hunch" or "feeling" rather than extrinsic evidence, also indicates that the accused did not, as an individual, arouse a reasonable suspicion.
Consequently, the police conduct in this case will amount to entrapment unless the officer presented the accused with the opportunity to sell drugs in the course of a bona fide inquiry. In my opinion, the police officer involved in this case was engaged in such a bona fide investigation. First, there is no question that the officer's conduct was motivated by the genuine purpose of investigating and repressing criminal activity. The police department had reasonable grounds for believing that drug-related crimes were occurring throughout the Granville Mall area. The accused was not, therefore, approached for questionable motives unrelated to the investigation and repression of crime.
Secondly, the police department directed its investigation at a suitable area within the city of Vancouver. As I noted in Mack, supra, the police may present the opportunity to commit a particular crime to persons who are associated with a location where it is reasonably suspected that criminal activity is taking place. I stated, at p. 956:
Of course, in certain situations the police may not know the identity of specific individuals, but they do know certain other facts, such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring. In those cases it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion.
The police department in this case focused its investigation on an area of Vancouver, a section of Granville Street covering approximately six city blocks, where it was reasonably suspected that drug-related crimes were occurring. In my opinion, they would not have been able to deal with the problem effectively had they restricted the investigation to a smaller area. Although there were particular areas within the Granville Mall where drug trafficking was especially serious, it is true that trafficking occurred at locations scattered generally throughout the Mall. It is also true that traffickers did not operate in a single place. It would be unrealistic for the police to focus their investigation on one specific part of the Mall given the tendency of traffickers to modify their techniques in response to police investigations. The trial judge admitted that the Mall was "known as an area of considerable drug activity". Similarly, the Court of Appeal found support in the evidence given at trial by Staff Sergeant Davies of the Vancouver City Police. In discussing the police department's activities in 1988, Staff Sergeant Davies indicated, at p. 370, that:
(a)Of the 2,294 persons charged with drug offences, approximately 22% were from incidents in the Granville Mall area;
(b)506 arrests were made on the mall resulting in 659 charges -- 289 for trafficking, 199 for possession for the purpose of trafficking;
(c)315 arrests were made in "buy and bust" operations resulting in 475 charges.
The Court of Appeal concluded, at p. 372:
The evidence at trial disclosed that sales of narcotics took place up and down the mall and it was for that reason that the undercover officer walked up and down the mall approaching persons and providing an opportunity to sell illicit drugs to her.
It is, therefore, my opinion that the police department was engaged, in these circumstances, in a bona fide inquiry.
I note that in many cases, the size of the area itself may indicate that the investigation is not bona fide. This will be so particularly when there are grounds for believing that the criminal activity being investigated is concentrated in part of a larger area targeted by the police. In this case, however, for the reasons discussed above, it was reasonable for the Vancouver Police Department to focus its investigation on the Granville Mall.
The accused argues that although the undercover officer was involved in a bona fide inquiry, she nevertheless engaged in random virtue-testing since she approached the accused without a reasonable suspicion that he was likely to commit a drug-related offence. She approached the accused simply because he was walking near Granville Street.
In my respectful opinion, this argument is based on a misinterpretation of Mack. I recognize that some of my language in Mack might be responsible for this misinterpretation. In particular, as noted above, I stated, at p. 956:
In those cases [where there is a particular location where it is reasonably suspected that certain crimes are taking place] it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion. This latter situation, however, is only justified if the police acted in the course of a bona fide investigation and are not engaged in random virtue-testing.
This statement should not be taken to mean that the police may not approach people on a random basis, in order to present the opportunity to commit an offence, in the course of a bona fide investigation. The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry.
Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:
(a) the person is already engaged in the particular criminal activity, or
(b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.
In this case, the accused was approached by the officer when he was walking near the Granville Mall. The notion of being "associated" with a particular area for these purposes does not require more than being present in the area. As a result, the accused was associated with a location where it was reasonably believed that drug-related crimes were occurring. The officer's conduct was therefore justified under the first branch of the test for entrapment set out in Mack.
For these reasons, it is my opinion that the officer did not engage in random virtue-testing in this case. I would, therefore, dismiss the appeal and uphold the decision of the Court of Appeal ordering a new trial.
Does this Court have jurisdiction, as a result of the finding that the police officer did not engage in random virtue-testing, to enter convictions with respect to the three charges?
As noted above, the accused was found guilty at trial of trafficking in cannabis resin, of the included offence of possession of cannabis resin for the purpose of trafficking, and of possession of marijuana. The trial judge entered a judicial stay with respect to the three offences on the grounds that the accused was entrapped. The Crown appealed to the Court of Appeal, arguing that the Court should overturn the trial judge's decision and enter convictions with respect to the three charges. The Court of Appeal allowed the Crown's appeal, but ordered a new trial to determine whether there had been entrapment pursuant to the second branch of the Mack test. Entrapment occurs under the second branch if the police go beyond providing the opportunity for a person to commit an offence and induce the commission of the offence.
The Crown now submits that this Court, having found that there was no entrapment under the first branch of the Mack test, should enter convictions with respect to the three offences. This submission turns on the assumption that it cannot be reasonably inferred from the evidence adduced at trial that the police officer induced the commission of the offence. The accused submits that this Court should not accede to the Crown's request, since the Crown did not cross-appeal the portion of the Court of Appeal's order directing that a new trial be held.
In my opinion, this Court does not have jurisdiction to vary the Court of Appeal's order at the request of the Crown, in the absence of an appeal by the Crown. The Crown had no ability to appeal, by right or by leave, the decision of the Court of Appeal to this Court. Section 693(1) of the Criminal Code, R.S.C., 1985, c. C-46 , sets out the situations when the Crown may appeal to this Court:
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
The Court of Appeal in this case allowed an appeal by the Crown from a judicial stay of proceedings ordered at trial. As noted by this Court in R. v. Jewitt, [1985] 2 S.C.R. 128, at p. 148, a stay of proceedings is, for all practical purposes, "tantamount to a judgment or verdict of acquittal". As a result, the Crown, under s. 693(1) , neither had a right to appeal nor to apply for leave to appeal the Court of Appeal's decision to this Court. Furthermore, the Crown was unable to apply for leave to appeal under the Supreme Court Act, R.S.C., 1985, c. S-26 , by virtue of s. 40(3) of the Act.
The Crown submits that the decision by the accused to appeal to this Court invokes the application of s. 695(1) of the Criminal Code . Section 695(1) provides as follows:
695. (1) The Supreme Court of Canada may, on an appeal under this Part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.
The Crown argues that since the Court of Appeal had jurisdiction under s. 686(4) (b)(ii) to enter convictions with respect to the three charges, s. 695(1) gives this Court jurisdiction to do the same. With respect, I disagree with the Crown's contention. Section 695(1) does not allow this Court to make, in all circumstances, a decision that we believe the Court of Appeal could have and should have made. As was held in Guillemette v. The Queen, [1986] 1 S.C.R. 356, this Court has jurisdiction under s. 695(1) to modify an order at the request of the Crown when there is an appeal by the Crown asking us to do so. I stated in Guillemette, at p. 364:
Where there is no appeal by the Crown asking us to do so, this Court cannot, in place of the Court of Appeal, make the order which we might feel it should have made ....
When there is no appeal by the Crown, an accused cannot leave this Court with less than what he gained from the court of appeal.
In the absence of an appeal by the Crown, this Court has no jurisdiction to allow the Crown's request that the order below be modified. To hold otherwise would allow the Crown to appeal to this Court where such an opportunity has not been provided by the Criminal Code or the Supreme Court Act . The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. As a result, there is no statutory provision which would allow the Crown to appeal from the Court of Appeal's judgment. Absent a statutory right of appeal, there is no right of appeal.
Disposition
For the reasons given above, I would dismiss the accused's appeal and uphold the decision of the Court of Appeal ordering a new trial.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'Heureux-Dubé J. (dissenting in part) -- I have had the benefit of the reasons of the Chief Justice but am nevertheless compelled to reach a different conclusion concerning the jurisdiction of this Court to enter convictions regarding the three charges stayed by the trial judge. As the Chief Justice's resolution of the entrapment issue commends itself to me, I will only address the second issue raised by this case, the jurisdiction issue.
Proceedings
As the Chief Justice has set out the facts and summarized the judgments of the courts below, it is not necessary to refer to them at length. For ease of reference, however, I will set out a brief summary of the proceedings in this case.
At trial, the accused was charged with: (1) trafficking in cannabis resin, (2) possession of cannabis resin for the purpose of trafficking, and (3) possession of marijuana. He was found guilty of counts (1) and (3) and of the included offence of possession regarding the second count. The issue at trial, then, was whether or not a stay should be directed, on the ground that the accused had been entrapped. The trial judge held that Barnes had indeed been entrapped and directed the entry of a stay on the three counts.
The Crown appealed. The Court of Appeal allowed the appeal, concluding that entrapment did not lie on the facts of the case, and, in spite of vigorous contrary arguments by the Crown, ordered a new trial on the issue of whether the "defence" of entrapment, on the second branch of the test set out in R. v. Mack, [1988] 2 S.C.R. 903, could be made out on the facts.
Barnes appealed to this Court, "as of right" that is, under the statutory direction of s. 691(2) (a) of the Criminal Code, R.S.C., 1985, c. C-46 . As the Chief Justice states, at p. 000, "[t]he Crown had no ability to appeal, by right or by leave, the decision of the Court of Appeal to this Court." Thus, there is no Crown appeal as such arising for consideration in this case.
Analysis
At the outset, we must be clear that the appeal presently before this Court was instituted by Barnes, the accused. He is appealing from the judgment of the Court of Appeal allowing the Crown's appeal of the stay and ordering a new trial. The Crown did not appeal the order for a new trial to this Court since the Criminal Code does not provide for such an appeal by the Crown. Given that, in my respectful opinion, the accused's appeal to this Court must fail on the issue of entrapment, the remaining question is whether the order for a new trial by the Court of Appeal can be set aside, and convictions entered, absent an appeal by the Crown.
The General Rule Regarding Appellate Jurisdiction
As the Chief Justice rightly points out, the general rule is that an appellate court cannot disturb a verdict of acquittal or, in any other respect, modify an order such as the one made here directing a new trial, absent an appeal by the Crown asking it to do so. Appellate jurisdiction is conferred entirely by statute. This general rule regarding appellate court jurisdiction has been affirmed in a number of recent cases from this Court. The reasons for such a rule are obvious -- in most circumstances, to proceed otherwise would expose the accused to unfairness and prejudice, due to the lack of notice regarding the scope of the appellate proceedings