What is Entrapment Law in Canada?

Entrapment is a legal remedy to criminal charges in Canada based on the conduct of the police before or during their interaction with the accused. Entrapment occurs when a police officer or police agent provokes, entices, or coerces an individual into committing a crime they would otherwise have been unlikely to commit. When police tempt someone into committing a criminal offence without a reasonable suspicion that the person is involved in criminal activity, or when they go a step further and induce someone into committing a criminal offence, they commit entrapment. The rationale behind the legal defence of entrapment in criminal law is that when law enforcement engages in this type of misconduct, it undermines society’s sense of decency and justice, threatens the rule of law, and amounts to an abuse of the legal process. When entrapment is proven, the defendant is entitled to a stay of proceedings. The result of a stay of proceedings is that the case against you cannot proceed, no guilty conviction is entered against you, and the incident does not appear on your criminal record.

Examples of Entrapment Law in Canada

Police conduct that can lead to an entrapment defence can include harassment, placing the individual under significant and persistent pressure, or coaxing them to commit an offence. Entrapment law in Canada prevents law enforcement from approaching an individual who has not yet engaged in a crime, and lures them to commit the crime by offering them an opportunity to do so.

When a Police Officer’s Actions do NOT Amount to Entrapment

Consider a person charged with selling illegal narcotics to an undercover police officer. The defendant testifies the drugs were for her own personal recreational use, and that she only sold some to the undercover officer during the party because he falsely stated the purchase was for his sister who was experiencing pain and suffering. The defendant alleges the officer assured her he was not a police officer, would never set her up, and he just wanted the drugs to help his sister. The policeman’s actions in this situation do not amount to entrapment. Police officers are permitted to be deceptive by lying. In this situation, the officer gave the defendant an opportunity to break the law by selling him drugs, but did not engage in extreme provoking, enticing, or coercive behaviour.

When a Police Officer’s Actions DO Amount to Entrapment

In a similar example, someone is charged with selling illegal drugs to an undercover police officer. In this scenario, the defendant testifies the drugs were for her personal recreational use. For weeks the undercover officer stopped by her house, workplace, and gym pleading with the defendant to sell him drugs so that his sister could be comfortable during her last few days of life. The defendant testifies she denied selling the undercover officer drugs multiple times, but she eventually succumbed after weeks of pressure. In this example, the actions of the undercover police officer do amount to entrapment since the actions were overbearing, coercive, and unduly pressured the defendant.

What are the Differences Between Inducement-based Entrapment vs. Opportunity-based Entrapment?

In Canada there are two different ways law enforcement can entrap an accused: opportunity-based entrapment and inducement-based entrapment.

Opportunity-based entrapment occurs when police provide an individual with an opportunity to commit a crime without reasonably suspecting the individual is engaged in criminal activity or without acting pursuant to a bona fide inquiry.

Inducement-based entrapment is when the police or public official has a reasonable suspicion or is acting in the course of a bona fide inquiry, but goes beyond providing an accused the opportunity to commit the crime and actually influences and induces an individual into committing an offence.

What is a Bona Fide Inquiry?

A bona fide inquiry is an authorized investigation in a targeted area. For example, law enforcement can focus on a particular area if they have reasonable grounds to believe criminal activity is prevalent there. If a bona fide investigation has been authorized in a location, the police may approach anyone associated there and present them with an opportunity to commit a particular offence.

What Constitutes a Reasonable Suspicion for Assessing an Entrapment Defence?

Police are permitted to give an individual the opportunity to commit a particular crime if the person arouses a reasonable suspicion that they are already engaged.

What constitutes “reasonable suspicion” varies depending on the circumstances. It is more than a “mere suspicion” and less than “reasonable and probable grounds.” Police must have proportionality and a rational connection between the criminal offence for which they have a reasonable suspicion, and the crime for which they provide the accused the opportunity to commit. If an individual is suspected to be involved in the drug trade, that fact alone is not a reasonable suspicion the person would commit a completely unrelated offence. For example, knowledge that an individual is involved in property related offences does not automatically give police a reasonable suspicion the individual is engaged in trafficking narcotics.

Additionally, if the police have a reasonable suspicion of an individual by virtue of his/her conduct, it must not be too remote in time and should also have sufficient temporal connection to the crime that police are giving the individual the opportunity to commit.

The presence of having a criminal record does not by itself constitute a “reasonable suspicion” that the person will engage in further criminal offences.

What do the Courts say about Opportunity-Based Entrapment?

In 2020, the Supreme Court of Canada ruled that law enforcement must establish a reasonable suspicion that a suspected drug dealer on the other end of the dial-a-dope operation is involved in selling drugs before given the opportunity to do so.

The Supreme Court had two separate cases in front of them. In both cases, law enforcement received unsubstantiated tips that two certain phone numbers were associated with drug dealing. Mr. Ahmad and Mr. Williams were both arrested and charged with drug offences after police called and purchased cocaine from them.

In Mr. Ahmad’s case, the court found that entrapment did not occur. Police received an unsubstantiated tip from the public that “Romeo” was selling drugs over the phone. An officer called and asked, “You can help me out?” to which Mr. Ahmad replied, “What do you need?” The officer replied he needed “two soft.” Mr. Ahmad was then arrested. The court considered Mr. Ahmad’s reply, “What do you need?”, sufficiently corroborated the unsubstantiated tip that Mr. Ahmad was selling drugs over the phone. That means the officer formed a reasonable suspicion based on the evidence of the unsubstantiated tip combined with Mr. Ahmad’s reply before giving Mr. Ahmad the opportunity to sell drugs by phone.

In Mr. Williams’ case, the trial judge found he was entrapped because police did not form a reasonable suspicion he was selling drugs over the phone before they gave him the opportunity to sell. An officer called Mr. Williams’ phone saying someone gave him the number and that he “need[ed] 80” before Mr. Williams could say anything. The officer gave Mr. Williams the opportunity to commit an offence before he formed a reasonable suspicion that Mr. Williams was engaged in criminal activity, and therefore committed entrapment. Compared to Mr. Ahmad’s case, the officer attempted to order drugs over the phone without corroborating the unsubstantiated tip that Mr. Williams was selling drugs over the phone.

How do you Prove Entrapment?

Evidence of entrapment must be disclosed as early as possible. However, the defence of entrapment is argued and ruled on by a judge only after the defendant has been found guilty by a judge or jury. It is not an appeal, but a remedy under section 24(1) of the Charter of Rights and Freedoms.

The defendant bears the burden of establishing entrapment. Entrapment is proven when the defendant shows they were unduly motivated, coerced, or influenced into committing a criminal offence that they would not have engaged in but for the officer’s tactics. The court will consider whether reasonable or normal law-abiding citizens would have acted similarly to the defendant if they were experiencing the same conditions.

A defence of entrapment is available when the defendant can prove either of the following on a balance of probabilities:

1. The police provided the accused with an opportunity to commit the crime without reasonable suspicion that the individual was engaged in criminal activity (i.e.: the police targeted someone randomly, without any reasonable suspicion), or the police were not acting pursuant to a bona fide inquiry, or
2. Even if the police had reasonable suspicion or were acting in the course of a bona fide inquiry, they nevertheless went beyond providing the person with an opportunity to partake in an offence by unduly persuading the individual to commit the offence.

The courts have held that the entrapment defence should only be granted in clear cases, such as where the “administration of justice has been brought into disrepute.”

Understanding the Defence of Entrapment

The legal standard for entrapment requires reasonable suspicion in all cases in which police provide the accused with an opportunity to commit a crime. Without this requirement, the police could target anyone at random to tempt and coax them into committing a crime they would not have otherwise engaged in. The courts have called this ‘random virtue testing‘ which law enforcement is not permitted to do. According to the court, anything short of a reasonable suspicion or a bona fide inquiry would constitute random virtue testing.

Police often use tactics such as deceit or covert undercover operations in order to investigate criminal activities. Most officers are successful with their tactics and do not overstep their boundaries. However, when law enforcement does go too far by coercing someone into committing a crime through entrapment, the criminal justice system protects that individual. It is imperative you are represented by competent defence lawyers who is experienced in criminal law when you believe you have been entrapped by law enforcement.

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Are There any Limitations to the Defence of Entrapment?

There are limitations to the defence of entrapment in Canada.

1. Entrapment must be persuaded by the state.
   Law enforcement must be involved to argue the defence of entrapment. Thus, individuals cannot argue you were persuaded into committing a crime by a private citizen.
2. The defence of entrapment cannot apply to certain criminal offences.
   Offences which involve killing, bodily harm, or other acts of violence do not allow for the defence of entrapment.
3. The defence of entrapment is not available at extradition proceedings.
   You cannot argue the defence of entrapment if it is related to extradition to a foreign country.

Frequently asked Questions About Entrapment in Canada

Do the Entrapment rules change in high-crime areas?

If an area is known for drug trafficking or other criminal activity, law enforcement may be permitted to engage with strangers and offer them an opportunity to commit a criminal offence without any reasonable suspicion that they are personally associated with criminal activity.

Do we have a Pattern of Police Entrapment in Canada?

The defence of entrapment often occurs with charges relating to drugs or prostitution. A common scenario is when police use an undercover agent to approach an individual who is trying to sell or purchase sex or sell drugs. If the individual agrees to buy or sell sex or sell drugs, the undercover officer immediately makes an arrest and charges them with soliciting for the purposes of prostitution or purchasing sexual services (depending on where the incident takes place), or trafficking in narcotics.

What are some Factors the Court will Consider in Determining Whether or not Someone was Entrapped to Commit a Crime?

The Supreme Court in R v Mack listed the following non exhaustive list of factors that may be considered in determining whether law enforcement went beyond offering an individual an opportunity to commit a crime:

• The type of crime being investigated and the availability of other techniques for the police detection of its commission;
• Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of the crime;
• The persistence and number of attempts made by the police before the individual agreed to commit the crime;
• The type of inducement used by the police including deceit, fraud, trickery or reward;
• The timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
• Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
• Whether the police appear to have exploited a particular vulnerability of a person such as being mentally handicap or having an addiction;
• 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;
• The commission of any illegal acts by the police themselves;
• The existence of any threats, implied or expressed, made to the accused by the police or their agents; and
• Whether the police conduct is directed at undermining other constitutional values.