Entrapment Minimalism: Shedding the 'No Reasonable Suspicion or Bona Fide Inquiry' Test.

• Author: Penney, Steven
• Position: Canada

Introduction

1. The Two Types of Entrapment

   1. Origins

   2. Entrapment 1: No Reasonable Suspicion or Bona Fide Inquiry

   3. Entrapment 2: Inducement

2. Does the Jurisprudence Cohere with the Rationale for Entrapment?

   1. Theory

   2. An Empirical Study

   (i) No Reasonable Suspicion Cases

   (ii) No Bona Fide Inquiry Cases

   (iii) "Hybrid" Cases

3. Absorbing Entrapment 1 into General Abuse of Process Doctrine

   1. Abuse of Process

   2. Mala Fides

   3. Crime Creation

   Conclusion

   Introduction

   Entrapment is a strange defence. In fact, it is not a defence at all, at least not in the mould of a substantive bar to criminal liability. (1) Instead, it is a species of the common law abuse of process doctrine. A successful claim results in a stay of proceedings, not an acquittal. (2) Entrapment is also relatively novel: it was first recognized by the Supreme Court of Canada in 1988. (3) There have accordingly been few appellate decisions outlining its parameters. (4)

   Enough case law has emerged, however, to reveal two distinct claims. In the first, the defence must prove that police provided the accused with an opportunity to commit an offence without: (i) reasonably suspecting him or her of committing that offence; or (ii) engaging in a bona fide inquiry. (5) The prosecution may accordingly defeat the claim by negating either of these elements, i.e., by showing that police had reasonable suspicion or, if not, were conducting a bona fide inquiry. I call this claim "Entrapment 1". (6) "Entrapment 2" arises when police go beyond providing an opportunity and "induce" the commission of the offence. To make out this claim, the defence must generally show that the accused would not have committed the offence but for the inducement. (7)

   This article's purpose is to urge courts to cease recognizing Entrapment 1 as a discrete defence generating an automatic stay of proceedings. Entrapment 1 coheres poorly with the defence's rationale (deterring police from manufacturing crime), has generated a convoluted and inconsistent jurisprudence, and fails to draw a sensible line between abusive and non-abusive police methods. Instead, Entrapment 1 should be folded into the Charter's general abuse of process doctrine, allowing courts to consider all relevant circumstances in deciding whether alleged state misconduct is grave enough to warrant a stay of proceedings. This would leave Entrapment 2 as the only true entrapment defence automatically requiring a stay.

   The remainder of this article proceeds as follows. In Part I, I trace the origins of entrapment in Canadian law and outline the current doctrinal formulations of Entrapment 1 and Entrapment 2. Part II assesses the fit between the two species of the defence and the Supreme Court of Canada's professed rationales for them. After reviewing the leading cases and an empirical analysis of 264 published decisions, I conclude that Entrapment 1 fails to mark a coherent, defensible boundary between legitimate and abusive opportuning. Part III provides a framework for absorbing Entrapment 1 into the general abuse of process doctrine, summarizing that doctrine's parameters and highlighting the two types of cases ("mala fides" and "crime creation") most likely to lead to stays of proceedings. The final part concludes.

1. The Two Types of Entrapment

   1. Origins

      Entrapment was first recognized by a majority of the Supreme Court of Canada in R v Mack. (8) Previously, most courts had held that entrapment was not an independent defence, whether substantive (resulting in acquittal) or procedural (resulting in a stay of proceedings). (9) Entrapment could only be raised in mitigation of sentence. (10)

      The seeds for Mack were planted in two minority opinions in Kirzner v The Queen (11) and Amato v The Queen. (12) In his decision for four of nine judges in Kirzner, Laskin CJC was prepared to find entrapment where police go "beyond mere solicitation... and have actively organized a scheme of ensnarement". (13) He found, however, that the claim failed on the facts. (14) The majority judges were content to reject entrapment on the facts without opining on its legitimacy. (15)

      Dissenting for four of nine judges in Amato, Estey J found entrapment along similar lines to Laskin CJC's formulation in Kirzner. (16) Of the remaining five, four demurred on the recognition issue, preferring to hold that the defence failed on the facts. (17) Writing only for himself, Ritchie J maintained that entrapment was not a discrete defence. (18)

      In Mack, the Court unanimously adopted Estey J's view in Amato that entrapment is a procedural defence (stemming from the common law abuse of process doctrine) that results in a stay of proceedings. (19) Writing for the Court in Mack, Lamer J (as he then was) stated that certain methods of combatting crime are "unacceptable" and bring the administration of justice into disrepute. (20) Like Estey J and Laskin CJC, he concluded that entrapment arises when state agents go beyond "providing an opportunity" and "induce" the commission of an offence. (21) In addition, entrapment may arise without inducement when police engage in "random virtue-testing" or act for "dubious motives unrelated to the investigation and repression of crimes". (22) As discussed, this occurs when police opportune in the absence of either reasonable suspicion or a bona fide investigation. (23) I examine each of these doctrines below.

   2. Entrapment 1: No Reasonable Suspicion or Bona Fide Inquiry

      To make out Entrapment 1, the defence must first show that police gave the accused an "opportunity" to commit the offence. The Supreme Court of Canada did not elaborate on this requirement in Mack or any later decisions. Lower courts have nonetheless drawn a distinction between "legitimately investigating a tip" (which does not engage entrapment) and "giving an opportunity to commit a crime" (which does). (24) This aspect of Entrapment 1 is discussed in more detail in Part II.B.(ii), below.

      If the "opportunity" requirement is satisfied, the next step is to show that police lacked both reasonable suspicion and bona fides. The Supreme Court of Canada has said little about the meaning of "reasonable suspicion" in this context. For police detention and search powers, it means "something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds". (25) Lower courts have held that this definition also applies to entrapment. (26)

      The concept of bona fides has received more attention. Justice Lamer explained in Mack that police may legitimately opportune even if they do not reasonably suspect any individual of committing the offence. (27) But if they lack individualized suspicion, they must have bona fides. Police act without bona fides if they target a suspect for an illegitimate, non-criminal justice purpose or engage in "random virtue-testing". (28) An example of the former, he stated, would be an officer who disliked parole who offered parolees prostitutes to "get them to commit an offence and so have their parole revoked". (29) As an example of the latter, he invoked an officer who "plants a wallet with money in an obvious location in a park, and ensures that the wallet contains full identification of the owner". (30) "[W]hether or not we are willing to say the average person would steal the money," he concluded, this tactic "carries the unnecessary risk that otherwise law-abiding people will commit a criminal offence." (31)

      If police had received "many complaints" of handbag thefts in a bus terminal, in contrast, they would be justified in planting one "in an obvious location" in the terminal. (32) Random opportuning is legitimate, he concluded, if it is conducted in a "particular location... where it is reasonably suspected that certain criminal activity is occurring". (33) Unlike the "wallet in the park" scenario, he asserted, this does not create an undue risk of tempting otherwise innocent people to offend. (34)

      The Court elaborated on the "random virtue-testing" concept in R v Barnes, where police had conducted a "buy-and-bust" operation over a six-block area. (35) Though there was little reason to suspect the accused of selling drugs, the majority found bona fides because police acted for legitimate law enforcement reasons and reasonably believed that drug trafficking was occurring throughout the area. (36) Focussing on a smaller area where trafficking was concentrated, Lamer CJC reasoned for the majority, would have thwarted the police's ability to "deal with the problem effectively". (37) "It would be unrealistic for the police to focus their investigation on one specific part," he continued, "given the tendency of traffickers to modify their techniques in response to police investigations". (38) In the circumstances, he concluded, police had defined the target area with "sufficient precision" to justify opportuning without reasonable suspicion. (39)

      Writing only for herself, McLachlin J (as she then was) dissented, arguing for a more constrained conception of bona fides. In her view, the majority failed to properly value innocent people's interest in "being able to go about their daily lives without courting the risk that they will be subjected to the clandestine investigatory techniques of agents of the state". (40) Courts should consider "not only the motive of the police and whether there is crime in the general area," she asserted, "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". (41)

   3. Entrapment 2: Inducement

      As mentioned, Entrapment 2 arises when police go beyond providing a criminal opportunity and induce an offence. In Mack, Lamer J recognized that the line between these categories was not perfectly bright: the "totality of...