Canadian Criminal Law/Defences/Entrapment

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General Principles[edit]

A defence of entrapment is available when:[1]

  1. 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 bona fide inquiries;
  2. 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.

"An exception to [the rule establishing entrapment] 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."[2]

An undercover officer who attempts to buy drugs from someone suspected of selling drugs does not constitute entrapment.[3]

A defence of entrapment cannot be advanced until after the crown has proven all of the elements of the offence.[4]

  1. R.v.Mack 1988 CanLII 24 (S.C.C.), (1988) 44 C.C.C. (3d) 513 (S.C.C.) at p.559
  2. R.v.Barnes 1991 CanLII 84 (S.C.C.), (1991) 63 C.C.C. (3d) 1 (S.C.C.) at pp.10-11
  3. Barnes v. The Queen, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449
  4. R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903
    considered in R. v. Bérubé, 2012 BCCA 345 (CanLII)

Random Virtue Testing[edit]

Certain provinces have found that "random virtue testing" by police, such as randomly calling phone numbers found on a suspect's cell phone in hope of catching a drug trafficker.[1]

Conducting a DNA canvass of suspects has been upheld as a valid investigation technique.[2]

  1. R v Swan, 2009 BCCA 142 (CanLII) at para. 43
  2. R v Osmond, 2012 BCCA 382

Case Digests[edit]

  • R. v. Bayat, 2011 ONCA 778 -- entrapment defence overturned on appeal for luring charge