If you are tricked into committing a crime in order to secure a prosecution, can you be found guilty, or are you entitled to have the charges dismissed? If the police give an accused the opportunity to commit a crime without reasonable suspicion or otherwise induce the offence, it might be possible to have the prosecution brought to a conclusion.
This article looks at the doctrine of entrapment, along with a recent decision of the Ontario Superior Court of Justice in which an accused that sold drugs to an undercover police officer sought a stay of the charges by relying on this doctrine.
What is the doctrine of entrapment?
Courts may find that entrapment has occurred if:
- 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”, which refers to the authorities having a reasonable suspicion that someone is committing a crime in a sufficiently precise space as well as the purpose of investigating and repressing crime, or
- although having such a reasonable suspicion or acting in the course of a bona fide inquiry, the authorities go beyond providing an opportunity and actually induce the commission of an offence.
What is the purpose of the doctrine of entrapment?
Courts have created the doctrine of entrapment in acknowledgment that some police techniques are unacceptable in a free and fair society.
The doctrine of entrapment aims to balance two objectives, namely:
- police involvement in crimes being committed can violate societal expectations, specifically that police will not invade privacy, randomly test the likelihood of someone committing a crime, manufacture crimes or waste public resources; and
- police must be able to innovate to catch genuine criminal activity.
What happens in cases of entrapment?
Entrapment will only be found in cases where it is clear. If a court decides that the test for entrapment has been met, it will find that there has been an abuse of process and will “stay proceedings” which ends the prosecution. The accused will not be found guilty or subject to a penalty.
So, what happens in cases involving multiple charges? If the police lacked reasonable suspicion before a first offence, but had a suspicion for later offences, can all the charges be stayed?
Accused pleaded guilty to three counts of selling drugs after police did not have reasonable suspicion before a first transaction
Turning to the recent decision in the case of R v. Hall, the accused pleaded guilty to three counts of selling fentanyl and cocaine to an undercover police officer.
Prior to this, a police officer received a tip from a confidential informant about someone selling these drugs and was given a cell phone number. He texted the number and met the accused to purchase cocaine. The prosecution conceded that the police did not have a reasonable suspicion that the person was already engaged in criminal activity before the accused was contacted.
The accused was arrested after three more sales. He was not charged in respect of the first transaction but was charged in relation to the three later sales to the undercover officer.
Accused argued original lack of reasonable suspicion tainted subsequent charges
The accused applied to the Court seeking a stay of the charges to which he pleaded guilty based on the doctrine of entrapment.
The accused argued that the police’s lack of reasonable suspicion at the outset tainted the subsequent drug transactions on the basis of entrapment. However, the prosecution claimed that the initial entrapment did not extend to the subsequent transactions.
Were the subsequent charges “pure happenstance” unrelated to the entrapment charge?
Justice O’Marra cited a previous case in which an accused involved in two drug transactions that were stayed based on entrapment was found in possession of a handgun when he was later arrested. The defence argued that the firearm charge should also be stayed.
The Court decided that the entrapment on the drug charges did not allow for a stay of the firearm charge, with the judge stating that:
“Because the police had provided [him] with opportunities to traffic in crack cocaine without having reasonable suspicion, he was automatically entitled to the most powerful remedy known to Canadian criminal law on those charges – a stay of proceedings. Weeks later, and acting independently, he is not entitled to the same remedy once again…
It was pure happenstance that, when he was arrested, [the accused] was allegedly in the process of committing other offences completely unrelated to the drug offences.”
Court stayed the three counts that related to the subsequent drug sales
Justice O’Marra rejected the prosecution’s argument that this previous case was analogous to the present situation.
His Honour noted that, unlike the other case, the drug investigation was not over when the accused was arrested and the subsequent charges were not pure happenstance, unrelated to the initial entrapment charge.
His Honour decided that the subsequent transactions “cannot stand on the crumbled foundation of the first” because they were “fruit poisoned by the tree of the first transaction”.
As a result, the Court ordered stays of the three counts to which the accused had previously pleaded guilty.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa About Drug Crime Charges
The skilled criminal defence lawyers at Barrison Law defend their clients against a range of drug crime charges, including possession, possession for the purpose of trafficking, trafficking and production. If you are in the Durham Region and need help with building a strategic defence to a drug crime charge, we have the experience and resources to assist you.
We focus on getting the best outcome for your situation, which may involve seeking alternatives to jail time or arguing against a conviction for various reasons, such as an illegal search and seizure or entrapment. To arrange a free initial consultation to learn how we can assist, please call us at 905-404-1947 or contact us online.