Existence of Defence
A remedy may be obtained where, as a result of unfair law enforcement practices, the accused is induced to commit an offence: Mack (1988) (S.C.C). The test for entrapment has two branches: It should be noted that the accused need not satisfy both branches of the test formulated in Mack in order to succeed on an entrapment application: To succeed an accused must establish on a balance of probabilities that either:
1.) The authorities did not act on reasonable suspicion when they provided the accused with an opportunity to commit the crime alleged or they were not acting pursuant to a bona fide inquiry; or
2.) That the authorities, although acting on such reasonable suspicion, and pursuant to a bona fide inquiry, went beyond providing the accused with an opportunity to commit the alleged offence and induced the commission of that offence.
Entrapment is not, properly speaking, a "defence," but only grounds for a stay of the proceedings as an abuse of the court's process. The "rationale for recognition of the entrapment doctrine lies in the inherent jurisdiction of the court to prevent an abuse of its own process". It is only available in the clearest of cases.
The decision of the Supreme Court in Mack presently stands as the fullest and most authoritative discussion of entrapment.
Meaning of Entrapment
1. Entrapment occurs when
(1) the police, without reasonable suspicion that the target is already engaged in related criminal activity, provide the target with an opportunity to commit an offence; or
(2) the police have the reasonable suspicion noted in (1), but go beyond providing an opportunity to commit an offence and actually induce the commission of an offence.
2. It is permissible for the police to offer to a person, about whom they have no reasonable suspicion that he or she is engaged in criminal activity, an opportunity to commit an offence if that person is located in an area in which the police reasonably suspect such criminal activity is occurring.
3. The onus falls on the accused to prove on a balance of probabilities that entrapment has occurred. However, there is authority for the proposition that if the Crown is in sole possession of information which relates to the "reasonableness" of the police suspicion that the target was involved in criminal activity, then a failure to provide the defence with that information may well result in an adverse inference being drawn against the Crown (i.e., an inference that the information possessed by the Crown would demonstrate that the police suspicions about the accused were "unreasonable").
4. The relevant time when determining whether the police had a reasonable suspicion that the target (accused) was engaged in criminal activity is when the opportunity to commit a related offence was given to the accused by the police.
5. A "reasonable suspicion" is more than a "mere suspicion" and less than "reasonable and probable grounds". It equates to "articulable cause" and "is dependent on both the content of the information provided to the police and its degree of reliability". Further, "the police are entitled to rely on untested informants as the basis for the first step in making a bona fide enquiry and where that bona fide enquiry confirms the information, the police are entitled to continue the investigation, absent any activity that would amount to importuning".
6. If the police are simply "going along" with a scheme which had been suggested by the accused him or herself, it cannot be said that the police are inducing the accused to commit the offence.
7. Whether the police have gone beyond providing an opportunity to commit the offence and actually induced the accused to commit the offence must be determined on the facts of each case.
8. The law of entrapment applies to regulatory offences, but
(1) the nature of the regulatory offence (e.g., does its violation attract social stigma similar to a criminal offence?); and
(2) the extent to which other methods of enforcement were available to the police,
will have an effect on whether or not the police must have had a reasonable suspicion that the accused was already involved in similar offending conduct when the police provided him or her with an opportunity to commit the regulatory offence. If a reasonable suspicion on the part of the police is necessary, the points set out in (1) and (2) will have an effect on whether or not a standard of reasonable suspicion lower than that which applies in criminal cases should apply in the particular regulatory offence before the court. These matters must be decided on a case by case basis.
