Entrapment Ruled Inapplicable in Canadian Terrorism Case

Today the Star reports the decision of Justice Sproat dismissing the application brought by some of the accused in the "Toronto 18" case involving paid police informant, Mubin Shaikh.  The judge ruled that despite the actions of Mr. Shaikh, it did not amount to what is defined as "entrapment" under Canadian Law. 

Which begs the question, what is entrapment?  Many people use the term loosely but few understand how it is actually applied in context.  The leading case from Canada's Supreme Court is R. v. Mack, 1988 CanLII 24 (S.C.C.)

Under Canadian law, entrapment occurs when

(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and,

(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

What this means in plainer language is that the police cannot induce people to commit an offence without having any reasonable belief that they were engaging in a criminal offence. 

On the other hand, police are permitted to attempt to investigate leads on criminal activity (a “bona fide inquiry") that might include, for example, recent complaints about drug trafficking in the neighbourhood.  They may not have any specific information about a particular person, but they are still permitted to engage in undercover work in the area to see if any individuals approach them or try to facilitate the subject matter of the complaint.

In determining whether a person was “induced” the circumstances must be looked at objectively so that the Court would ask, would a reasonable person, in similar circumstances as the accused,  act upon the opportunity created by the police that results in the criminal act?

If police do not have a reasonable suspicion or a bona fide inquiry, it is important in determining whether entrapment took place.  The Court has stated that we must be mindful to curb behaviour and actions of police that might attract people otherwise without involvement in a crime.  In short, it is not appropriate to "randomly test the virtue of people.” 

In determining whether entrapment has occured, the Courts may consider several factors to decide whether the police went further than simply providing an opportunity:               

(1) the type of crime being investigated and the availability of other techniques for the police detection of its commission;

(2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

(3) the persistence and number of attempts made by the police before the accused agreed to committing the offence;

(4) the type of inducement used by the police including: deceit, fraud, trickery or reward;

(5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;

(6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;

(7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

(8) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

(9) the existence of any threats, implied or express, made to the accused by the police or their agents;

(10) whether the police conduct is directed at undermining other constitutional values.

This above list is not complete; a Curt may take into consideration any other additional factors it considers applicable to the case at hand. 

It is also significant to point out that entrapment is not technically a “defence” in the strict sense of the term.  Rather, it is action by the state that come at a price unacceptably high for the end result and therefore ought to be condoned by granting a stay of proceedings.  Therefore, as a matter of procedure, an entrapment “defence” is raised at the close of the case (as was done in the “Toronto 18” case) to request such an order. 

It is also the trial judge, not a jury, that decides the issue of entrapment and only after a verdict of guilt has been entered.  The defence bears the burden of establishing entrapment on a balance of probabilities.

One of my favourite legal passages is from R. v. Mack and reads:

[It is] central to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves. It is a deeply ingrained value in our democratic system that the ends do not justify the means. In particular, evidence or convictions may, at times, be obtained at too high a price