Amato v. The Queen

Amato v. The Queen
Collection
Supreme Court Judgments
Date
1982-08-09
Report
[1982] 2 SCR 418
Case number
16053
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
SUPREME COURT OF CANADA
Amato v. The Queen, [1982] 2 S.C.R. 418
Date: 1982-08-09
Victor Amato Appellant;
and
Her Majesty The Queen Respondent.
File No.: 16053.
1981: May 20; 1982: August 9.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Defences — Entrapment — Trafficking conviction — Conviction resulting from incidents instigated by undercover officer — Whether or not defence of entrapment existed and applicable — Criminal Code, R.S.C. 1970, c. C-34, s. 7(3).
This appeal was from appellant's conviction of trafficking in cocaine. An undercover policeman and an informer had repeatedly and persistently requested drugs from appellant, at home and at work, over the course of two months despite his lack of interest and despite the absence of no reasonable cause to believe him to be involved in the illicit drug trade. A certain friendship developed during that time, and eventually, appellant reluctantly put the two men in contact with a supplier. The charges laid related to one occasion where cocaine passed from the supplier, through appellant to the undercover officer and to a second occasion where the drugs passed directly from the supplier to the officer following an implied threat of violence made to appellant. Arguments as to whether the "defence of entrapment" existed, and if so, as to whether it applied here, were considered at trial and on appeal.
Held (Laskin C.J. and Estey, McIntyre and Lamer JJ. dissenting): The appeal should be dismissed.
Per Martland, Dickson, Beetz and Chouinard JJ.: The defence of entrapment, assuming it to be available under Canadian law, did not arise on the facts of this case that was the unanimous conclusion of the four British Columbia judges who had already considered the matter. This Court should not retry the case and arrive at different findings.
[page 419]
Per Ritchie J.: The question of entrapment can only enter into the determination of an accused's guilt or innocence where police tactics are such as to leave no room for the formation of independent criminal intent by the accused. The mere fact that the crime was committed at the "solicitation" of an agent provocateur does not, standing alone, support a defence of entrapment. The defence of entrapment might have been supported here if the accused had been coerced to cooperate with the police plan under the threat of violence.
Per Laskin C.J. and Estey, McIntyre and Lamer JJ., dissenting: The doctrine of entrapment is rooted in the common law's recognition of the need for some element of judicial control and should be recognized and applied here. Section 7(3) of the Criminal Code allows the criminal courts to adopt common law defences; those defences did not crystallize when the statute was enacted. Indeed, as entrapment may not technically be a defence in that it results in a stay of prosecution rather than an acquittal, reliance on s. 7(3) might be unnecessary. The doctrine's principal characteristics are: 1) that the police instigate an offence and through their conduct ensnare the accused into committing it; 2) that the scheme be to gain evidence for the prosecution of the accused for the instigated crime; and 3) that the crime be induced through deceit, fraud, trickery, reward or other means. The scheme must be in all circumstances so shocking and outrageous as to bring the administration of justice into disrepute. The doctrine is not applicable where the true purpose of the police initiative is to put the enforcement officers in a position to obtain evidence of an offence when committed, absent the other circumstances noted. Here, this shocking and outrageous enterprise was earmarked with all the trappings of entrapment.
[R. v. Mealey and Sheridan (1974), 60 Crim. App. R. 59; Sorrells v. United States (1932), 287 U.S. 435; United States v. Russell (1973), 411 U.S. 423; Kirzner v. The Queen, [1978] 2 S.C.R. 487; Lemieux v. The Queen, [1967] S.C.R. 492, considered; Sherman v. United States (1958), 356 U.S. 369; R. v. Ormerod, [1969] 2 O.R. 230, referred to.]
APPEAL from a judgment of the British Columbia Court of Appeal (1979), 51 C.C.C. (2d) 401, 12 C.R. (3d) 386, dismissing an appeal from a conviction of trafficking in cocaine. Appeal dismissed,
[page 420]
Laskin C.J.. and Estey, McIntyre and Lamer JJ. dissenting.
Sidney B. Simons, for the appellant.
John Scollin, Q.C., and Cory Stolte, for the respondent.
The reasons of Laskin C.J. and Estey, McIntyre and Lamer JJ. were delivered by
ESTEY J. (dissenting)—The appellant was charged with two counts of trafficking in cocaine on or about October 3 and October 13, 1977. At his trial before McGivern P.C.J. the sale of the cocaine to an R.C.M.P. undercover agent was admitted. The defence raised was entrapment.
In June of 1977 the accused was employed as a hairdresser in North Vancouver. He was approached by the manager of the shop, one André, who said that he had a friend who was Iooking for a gram of cocaine. Amato responded that he did not think he knew of anyone from whom it could be obtained. Amato's evidence, which I shall now summarize, is that he had never used cocaine nor trafficked in it. Two days later, André's friend, who identified himself as Don, called Amato at work. Amato told Don that he didn't really know where he could obtain cocaine but as Don was a friend of André he would keep his ears open. Shortly thereafter Amato switched places of employment to another hairdressing salon. Don called him there repeating his earlier request and saying that he had obtained his number from André.
Don was in fact Don Langvin, a paid police informer whose job was to introduce traffickers to the police. He is himself known as a trafficker who was granted immunity from prosecution in relation to an incident where he was found in possession of three ounces of heroin. He was also paid $200 a week and received a lump sum of $9,500 to assist in relocating at the end of the operation. Over the period during which he was involved with Amato, Langvin did not carry a recording device or make any written notes or reports. He reported verbally
[page 421]
to his "handler" who for most of the time was Constable Godwin of the R.C.M.P. Godwin has no notes nor any recollection of reports made to him by Langvin of his dealings with Amato prior to October 3 some four months after Langvin's first contact with Amato. Godwin and Langvin were meeting three or four times per week over this period. In response to the trial judge's repeated inquiries, the Crown stated that Langvin could not be located to testify. Here I have summarized and inserted in the course of Amato's evidence some testimony given by Godwin.
When Langvin called Amato at his new place of work back in June he was told by Amato that André was mistaken if he thought he could be counted on to obtain cocaine. Langvin responded that he did not know many people in North Vancouver, that he had to go through André, that he was very desperate to "score" a gram and that he had been looking for some time without success. Langvin continued to call Amato through the summer. Between the third week in June and early September he called at least fifteen to twenty times, mostly at work. In August he came to Amato's work place and asked him to join him for a coffee and to look at his car. Langvin owned an antique Rover which interested Amato because he thought Langvin had connections and Amato claims he hoped to own one some day. Amato describes the relationship between him and Langvin at that time in his examination-in-chief at trial:
Q. And did you have any intention of obtaining cocaine for him or selling it to him?
A. Not at all. I was just trying to be a friend with him because he—he seemed like a very clean-cut kid and he-he just seemed like a person that I could probably benefit from because he had deals on cars and things like that, but he seemed like an all 'round nice guy. To me it didn't—didn't dawn on me.
In the first part of September Langvin visited twice at Amato's apartment to discuss a party which was being held at the end of the month. Langvin had some friends coming from California
[page 422]
and said they wanted some cocaine for the party. Amato said he would ask amongst his friends to see if he could "turn him on to someone". He asked some hairdresser friends but they could not come up with anything.
In mid-August Amato called June Lee to ask if she could help to obtain some cocaine. She is an ex-girlfriend with whom Amato had lived for three years but they had broken off their relationship two and a half years previous to this time. Amato says he turned to June Lee because her brother was involved with heroin. Amato wanted her to contact her brother's girlfriend as he believed her to have some contact in the drug business. June Lee wasn't interested but Amato called her back three or four times over the next month. She did not want to "stick her neck out". By mid-September June Lee changed her mind and arrangements were made to sell one gram of cocaine to Langvin for $100. Amato met Langvin in a parking lot, took the $100, went to June Lee's place and returned with the cocaine for Langvin. Amato received no money or cocaine from the transaction. This first transaction was in September.
When Amato delivered the first gram to Langvin the latter raised the possibility of getting a half ounce for his friends who were coming from California for the party. Amato refused but Langvin called him the next day at work. Amato said he had done it only as a favour and told Langvin he was scared by the whole thing. Langvin continued to call Amato daily at the shop. Amato refused repeatedly. On October 3 Langvin came to Amato's shop where they went out behind it and after talking about cars Langvin told Amato that the friends from California had arrived. Amato was asked if he could do everything in his power to get some more cocaine. He called June Lee who refused and hung up. He called her back and pressed her to do "a last little favour". After a few calls she agreed to provide a half ounce of cocaine for $1,100. Langvin and Amato were to meet in a parking lot but when Langvin showed up he had his friend Gary (who was in fact Godwin) with him. Amato refused to go through with the deal at first but he was reassured that Godwin was "cool"
[page 423]
and that he was Langvin's best friend. Godwin and Langvin gave Amato $1,100 and he went off to meet June Lee who went somewhere else to get the cocaine. Amato returned with it and Godwin began discussing quality and quantity and Amato says he was "coming on very strong, like a dealer". Amato says he told Godwin and Langvin:
... 'Look I am not a dealer.' ... 'As far as I'm concerned l'm not doing this voluntarily. I'm into this predicament because I've been pushed this far and it's not—it's not—it's not going to happen. You know, as soon as this is over I just don't want to see any of the both of yous again.'
As Amato left the car he said to Godwin and Langvin, "Forget it. This won't happen again". Langvin wasn't heard from again. Godwin called two days later and congratulated Amato on how smoothly it had gone. Godwin called a few more times at the shop saying that he wanted to obtain three ounces of cocaine, offering a price of $6,000. Amato told him to forget it and Godwin replied, "You just tell your people that". Godwin continued to call at work but Amato refused the calls saying he was too busy. On October 12 Godwin called seven or eight times and at the end of the day Amato called him back. Amato told him that he was washing his hands of him and hung up. Godwin called right back telling Amato that he had friends in town who were expecting three ounces. Godwin said he just wanted to have a chat with him for ten minutes and Amato agreed to meet him. Godwin mentioned that he was in a jam. Godwin told Amato that he didn't have to be frightened because he always dealt with guns and that he didn't "screw around". He told Amato, again according to Amato's evidence at trial:
'I'm just in a jam, I need to—to answer to these people, if not these people will be coming down to see you in the morning.'
Amato was asked if he would put Godwin in direct contact with June Lee or with her source repeating that these people would be coming down to see him (Amato that is) the next day. Amato called
[page 424]
June Lee who said that maybe something could be arranged for the following day, October 13. Godwin was still very anxious and asked Amato to try one more time. Amato called June Lee back and arrangements were made for a deal in the early morning of October 13. Godwin met Amato at 11 p.m. (October 12) in a parking lot. Godwin insisted he must personally pass the money to June Lee. Together they went to June Lee's place where they met in a basement apartment and Godwin purchased two and a half ounces of cocaine. Amato received no money and no cocaine for his part in the deal. Fie and Godwin left the apartment separately.
Godwin called twice two days later and again the following day looking for Lee's phone number. After that time there was no further contact between Amato and Godwin. Two subsequent deals were made with Lee by Godwin and she pleaded guilty to the three counts. Amato was arrested five months after the third transaction and was charged with trafficking in respect of the two dates in October.
In summary, there were three transactions:
1. one gram delivered by Amato to Langvin some time in September in respect of which no charge was laid;
2. a half ounce delivered by Amato to Godwin on October 3;
3. two and a half ounces delivered by Lee to Godwin on October 13.
Charges were laid with respect to numbers 2 and 3 only.
This account, with the exception of the reference to Godwin's evidence, is taken from the testimony of Amato given at his trial. André was not called to testify. Langvin could not be located despite the efforts of defence counsel to determine his whereabouts. The only evidence other than that of Amato which relates to the pressure being put upon him by Langvin and Godwin is the evidence of Godwin which commenced with the meeting in the parking lot on October 3. There are some conflicts between these two accounts of the period from October 3 to October 13. Godwin denies
[page 425]
having threatened Amato or having said anything about guns. Godwin says there were five phone calls during that period, three of which were initiated by Amato. Godwin also says that Amato discussed receiving an "end", some cocaine off the top for himself, although he doesn't say that he actually received it. The learned trial judge made the following observations on credibility:
In present case, the Crown was unable to produce the witness who originally arranged for the undercover officer to meet the accused, Amato. His evidence would have been extremely useful to assist me in making my determinations of fact. He could have corroborated the evidence of the Crown or he could have corroborated the evidence of the Defence. I believe he should have been called by the Crown. His absence has restricted the Defence from making a full answer in defence to the charge.
I am satisfied that in fairness to the accused I must presume that he would have given evidence consistent with that given by the Defence. For that reason, I am prepared for the sake of these reasons for judgment, to assume that the findings of fact ought to be made on the basis of the evidence tendered by the Defence.
There is some difficulty in determining whether the above passage refers to Amato's version of the events only up to October 3 or if it extends to include the period ending October 13. In subsequently reviewing the evidence of that period the learned trial judge says:
The third transaction testified to by the accused Amato concerned some two and a half ounces of cocaine. On this occasion, the undercover Policeman dealt directly with Amato to arrange the deal and then concluded it with the accused Lee. In this transaction, Amato alleged for the first time, according to my recollection of the evidence, that he was threatened by the undercover Policeman and the threat was one to the effect that if the deal could not be made, then certain people would visit Amato at his place of employment. This information presumably was passed on to the accused Lee. Amato testified that on the basis of the threat and persistence of the undercover Officer, he was forced to arrange the transaction which eventually took place.
I am satisfied that the evidence in this case falls far short of the evidence required at law to establish the defence of entrapment. The evidence amounts no more than to persistent solicitation by the informer and the
[page 426]
undercover Officer to persuade the accused Amato to engage in trafficking of cocaine. Amato's dealings with Ms. Lee do not permit her to be successful in relying on the defence of entrapment because she merely agreed to go along with her friend.
This subsequent reference to the evidence of Amato concerning the events between October 3 and 13 indicates that the trial judge proceeded on the basis that Amato's story was credible through-out, or at least was to be so taken for the reasons he gave, and that the defence of entrapment was rejected with reference to Amato's version of the events which had taken place.
The Court of Appeal also proceeded on the basis that Amato's story was to be believed in its entirety. Taggart J.A. reviewed the third transaction which occurred on October 13 as follows:
In addition, on the third occasion when cocaine passed between the persons in the house and Lee and the undercover police officer, the Appellant was induced to go to his source of supply not only by importuning on the part of the undercover police officer but as well by reason of threats of the use of force by persons for whom the undercover police officer said he was obtaining the cocaine.
In the light of these comments I come to the conclusion that the account of the appellant was accepted as credible and that the issue of the application of entrapment should be disposed of on that basis.
Returning to the facts it should be noted that prior to October 3, 1977, Amato was neither known to nor suspected by the police as a drug trafficker. Neither is there evidence that a police operation was being directed through him against Lee or any other police suspect. The evidence in short reveals a random contact with Amato by Langvin, a police agent, through an innocent intermediary (Amato's boss) who plays no further part in the story.
The trial judge apparently accepted that the defence of entrapment was open as a matter of law in Canada and he referred to the judgment of
[page 427]
Laskin C.J. in Kirzner v. The Queen, [1978] 2 S.C.R. 487, and summarized his view of the test therein described as follows:
In order to determine the sufficiency of evidence to raise a defence of entrapment there must be evidence to show that the Police had instigated the crime and that had they not done so, the accused would not have been involved in the transaction. The instigation must of course go beyond mere solicitation or decoy work.
As seen from the above the trial judge was of the view that the evidence fell "far short of the evidence required at law to establish the defence of entrapment". Notwithstanding that conclusion the learned trial judge made this observation in imposing his sentence, a fine of $3,000:
I am satisfied that I do not have to incarcerate you. I'm satisfied, however, that I must impose some monetary punishment. Notwithstanding that you were persuaded by some continuing persistence to get involved in the trafficking of cocaine, I was not and I am still not satisfied that the persistence used upon you legally justified your actions. I am, however, satisfied that that persistence is something that I must take into consideration in imposing sentence upon you.
The Court of Appeal agreed with the conclusion of the trial judge in a passing reference to the merits of the defence of entrapment. In any event the Court concluded that the defence of entrapment was not available. Taggart J.A., after referring to decisions of the British Columbia and Ontario Courts of Appeal in which the view was expressed that there was no defence of entrapment, as well as to the views of the Chief Justice in Kirzner v. The Queen, supra, put it this way:
I think we ought to follow the expressed views of this Court until such time as the matter is definitively settled by the Supreme Court of Canada or by a division of this Court composed of five members who can deal definitively with the problem.
Seaton J.A. was of the view not only that the defence of entrapment does not exist but that it should not exist. He expressed a decided preference for what he called the English approach which he explained as being the conviction of the accused for the completed offence but mitigating
[page 428]
the sentence where his involvement is due to the motivating influence of others whether those others be police agents or not. Carrothers J.A. agreed with both Taggart and Seaton B.A.
The issue of the availability of the defence of entrapment was expressly left open by Chief Justice Laskin in Kirzner, supra. The Ontario Court of Appeal in that case ((1976), 14 O.R. (2d) 665) had taken the view that the defence was not open to the accused. The Chief Justice concurred with the Court of Appeal in the result but not the reasoning at p. 496:
In these circumstances, I would not, however, endorse the view of the Ontario Court of Appeal in the present case or of the British Columbia Court of Appeal in Chernecki [(1971), 16 C.R.N.S. 182] rejecting entrapment as a defence. There are good reasons for leaving the question open. Indeed, if that position is based on a static view of s. 7(3) of the Criminal Code I find it unacceptable. I do not think that s. 7(3) should be regarded as having frozen the power of the Courts to enlarge the content of the common law by way of recognizing new defences, as they may think proper according to circumstances that they consider may call for further control of prosecutorial behaviour or of judicial proceedings.
The majority of this Court speaking through Pigeon J. expressly refrained from expressing any view on the availability of the defence of entrapment in Canadian law.
The scope of a defence in the nature of that generally called entrapment and the problems raised by such a defence are discussed at length by the Chief Justice in Kirzner, supra, and will not be repeated here. If there be such a defence for an accused in the criminal law, several matters must be determined:
(a) the source of authority in the courts to give recognition to the defence;
(b) the nature and range of offences in respect of which this defence may be available;
(c) the constituent elements which must be present;
[page 429]
(d) the remedy or result of its successful application.
The proponents of this defence generally seek to advance it as something necessary to bring fairness or fundamental justice into the criminal law when the state agencies of enforcement resort to methods of law enforcement which threaten the integrity of the criminal justice system or bring shame to the state. Put another way, the defence is seen as an offset to or a control mechanism for over-zealous crime detection and prosecution where inducement or incitement leads the otherwise innocent to the commission of an offence. There are shades and variants of these elements which make the defence difficult of definition and the doctrine delicate to apply.
As the Chief Justice said in Kirzner at p. 492:
There is, of course, a balance to be struck between giving reasonable latitude to the police in the employment of stratagems to control the spread of crime, especially in the case of the illegal drug traffic, and controlling behaviour that goes beyond any reasonable latitude. American jurisdictions have, on a constitutional basis, sought to control the introduction of illegally obtained evidence; in England, the Courts have continued to exercise a discretionary power to control the admissibility of evidence that would operate unfairly against an accused. Control techniques may thus relate to the recognition of substantive defences or to rules against the admission of evidence or to a discretion as to its reception. Abuse of process or stay of proceedings have also been put forward as techniques of control.
and at p. 494:
The problem which has caused judicial concern is the one which arises from the police-instigated crime, where the police have gone beyond mere solicitation or mere decoy work and have actively organized a scheme of ensnarement, of entrapment, in order to prosecute the person so caught. In my opinion, it is only in this situation that it is proper to speak of entrapment and to consider what effect this should have on the prosecution of a person who has thus been drawn into the commission of an offence.
[page 430]
There is no doubt that it may be difficult in particular cases to draw the line between mere use of spies, decoys or informers and the use of agents provocateurs who go beyond mere solicitation or encouragement and initiate a criminal design for the purpose of entrapping a person in order to prosecute him.
In an earlier case the defence was characterized by the Chief Justice in a judgment when on the Ontario Court of Appeal, as arising in the presence of "calculated inveigling and persistent importuning" by the enforcement agency: R. v. Ormerod, [1969] 2 O.R. 230, at p. 238.
This defence has been applied and been the subject of an on-going debate for over half a century in the courts of the United States. In Sorrells v. United States (1932), 287 U.S. 435, a case in which the facts, substituting alcohol for drugs, are remarkably similar to the present circumstances, Chief Justice Hughes recognized the defence:
It is clear that the evidence was sufficient to warrant a finding that the act for which defendant was prosecuted was instigated by the prohibition agent, that it was the creature of his purpose . . . [p. 441]
and continued on p. 442:
A different question is presented when the crimnal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.
The Court adopted an earlier Circuit Court view:
When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor. [Woods J. in Newman v. United States (1924), 299 F. 128, at p. 131].
The majority of the Court found authority for applying the defence of entrapment in a rule of statutory construction to be applied to the offence-creating statute, at p. 448:
[page 431]
We think that this established principle of construction is applicable here. We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.
By this theory the Court avoided claiming for itself a power to forbid the prosecution of a person whose conduct appears to come squarely within the statute. The issue was seen by the Court as whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offence which is "the product of the creative industry of its own efforts". Chief Justice Hughes concluded at p. 451:
If that is the fact, common justice requires that the accused be permitted to prove it.
The question then arose, of course, as to what the proper disposition should be on a successful application of the defence. Should it preclude prosecution, should it be a finding of not guilty, or simply a stay of prosecution at whatever the stage the defence is established? In Sorrells the Court remanded the case for further proceedings at trial in which it would be left to the jury to assess the conduct of the police investigation and the conduct of the accused with emphasis upon his predisposition and criminal design with reference to the offence. Chief Justice Hughes concluded at p. 452:
We are of the opinion that upon the evidence produced in the instant case the defense of entrapment was available and that the trial court was in error in holding that as a matter of law there was no entrapment and in refusing to submit the issue to the jury.
A minority opinion by Mr. Justice Roberts, concurred in by Justices Brandeis and Stone, took the view, at p. 454, that entrapment should be defined 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.
[page 432]
In the minority view the doctrine of entrapment rests on a fundamental rule of public policy, at pp. 457 and 459, namely:
The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention. Quite properly it may discharge the prisoner upon a writ of habeas corpus. Equally well may it quash the indictment or entertain and try a plea in bar. But its powers do not end there. Proof of entrapment, at any stage of the case, requires the court to stop the prosecution, direct that the indictment be quashed, and the defendant set at liberty.
[…]
The applicable principle is that courts must be closed to the trial of a crime instigated by the government's own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.
The U.S. Supreme Court considered this defence again in Sherman v. United States (1958), 356 U.S. 369. The accused had been repeatedly importuned by an informer who, like the accused, was attending a clinic for treatment for narcotic addiction. The informer claimed that he was not responding to treatment and the repeated requests for assistance in obtaining narcotics were premised upon the informer's feigned suffering. The majority applied Sorrells and continued to define entrapment as a defence "where the criminal conduct was the product of creative activity of law enforcement officials". The government reply relied on the defendant's criminal record to establish "a ready complaisance" to commit the offence. In Sorrells the case was remanded with the entrapment issue being left to the jury. In Sherman, however, the Court directed a dismissal no doubt on the grounds of overwhelming evidence. The majority of the Court declined to reconsider the doctrinal basis for the defence adopted by the majority in Sorrells as the issue had not been
[page 433]
raised by the parties or in the lower courts. Frankfurter J., for himself and Justices Douglas, Harlan and Brennan, concurred in the result but would have elevated the minority view of Sorrells to a governing principle. The view of Frankfurter J., at p. 380, was that:
Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them .... Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.
Following this line of thought the crucial question becomes whether the police conduct in a particular case falls below "standards, to which common feelings respond, for the proper use of governmental power". The position of the majority in Sorrells is commented upon at p. 382:
The intention referred to, therefore, must be a general intention or predisposition to commit, whenever the opportunity should arise, crimes of the kind solicited, and in proof of such a predisposition evidence has often been admitted to show the defendant's reputation, criminal activities, and prior disposition. The danger of prejudice in such a situation, particularly if the issue of entrapment must be submitted to the jury and disposed of by a general verdict of guilty or innocent, is evident. The defendant must either forego the claim of entrapment or run the substantial risk that, in spite of instructions, the jury will allow a criminal record or bad reputation to weigh in its determination of guilt of the specific offense of which he stands charged. Furthermore, a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment.
[page 434]
It follows therefore that a court enunciating this view must conclude, irrespective of the defendant's past record, that certain police conduct to ensnare him into further crime cannot be tolerated and hence the defence of entrapment applies. The position of the accused is not the criterion of the test but rather the conduct of the public authority (at p. 383):
Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition.
While recognizing that the police may act so as to detect those engaged in criminal conduct and those who are ready and willing to commit further crimes, the test as to entrapment must be that (at p. 384):
... in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations. This test shifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime. It is as objective a test as the subject matter permits, .. .
The minority acknowledges that the scale of police conduct to be condemned by the doctrine must be such as is likely to induce those not otherwise ready and willing to commit crime to do so, and this type of conduct must "be picked out from case to case as new situations arise involving different crimes and new methods of detection" (p. 384). Like Justice Roberts in Sorrells, the minority in Sherman concluded at p. 385 that the test was one for the court and not for the jury:
Only the court, through the gradual evolution of explicit standards in accumulated precedents, can do this with the degree of certainty that the wise administration of criminal justice demands.
[page 435]
Frankfurter J. does not stipulate as to whether the proper disposition is a quashing of the charge as proposed by Roberts J. in Sorrells or a stay of proceedings as was frequently the case in the federal courts when that option was open to them. He concurred with the result of the majority which was to remand the matter to the trial court with instructions to dismiss the indictment.
Again in 1973 the U.S. Supreme Court returned to entrapment in the United States v. Russell, 411 U.S. 423. The police investigator had supplied an essential and, although legally obtainable, difficult to obtain ingredient in the manufacture of 'speed' in return for one-half of the drug to be produced. The conviction was overturned by the Court of Appeals for the Ninth Circuit because of "the intolerable degree of government participation in the criminal enterprise" ((1972), 459 F. 2d 671). The trial judge had stated the law to be:
Where a person already has the willingness and the readiness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment.
By a five-to-four majority the Supreme Court restored the conviction. Rehnquist J., for the majority, followed the majority judgments in Sorrells and Sherman, taking the epitome of the latter judgment to be the observation by Chief Justice Warren:
[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. [356 U.S. 369, at 372].
Rehnquist J. concluded in favour of the "subjective" approach at p. 434:
Nor does it seem particularly desirable for the law to grant complete immunity from prosecution to one who himself planned to commit a crime, and then committed it, simply because government undercover agents subjected him to inducements which might have seduced a hypothetical individual who was not so predisposed.
[page 436]
It is clear that in the view of the majority in Russell the defence of entrapment is not to be used as a flexible yardstick in assessing the conduct of the prosecution. Rehnquist J. continued, at p. 435:
But the defense of entrapment enunciated in those opinions was not intended to give the federal judiciary a "chancellor's foot" veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.
Four members of the Court dissented in two judgments. Douglas J. with Brennan J. concurring followed the dissents in Sorrells and Sherman and concluded that the federal prosecutor here played "a debased role" when he became the "instigator" of the crime by supplying an ingredient needed to manufacture the illegal drug. Stewart J. dissented (Brennan and Marshall JJ. concurring) and likewise adopted the dissenting viewpoint in the two prior cases. The Sorrells and Sherman majorities in this view stand for the limitation of the entrapment doctrine "to those who would be otherwise innocent", that is those who would not have committed the crime but for the government's inducement (p. 440). Stewart J. would apply the principle of the minority view in both cases and thereby place the focus upon "whether the police conduct falls below standards for the proper use of governmental power", or as Stewart J. put it at p. 441:
Phrased another way, the question is whether—regardless of the predisposition to crime of the particular defendant involved—the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. Under this approach, the determination of the lawfulness of the Government's conduct must be made—as it is on all questions involving the legality of law enforcement methods—by the trial judge, not the jury.
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