COMMENT
CHRONIQUE DE JURISPRUDENCE
Persistent Importuning for a Defence of Entrapment
Michael Stober*
In this comment the author discusses the de-
fence of entrapment in light of two recent
decisions of the British Columbia Court of
Appeal: R. v. Mack and Showman v. R. The
author notes that there are three possible
bases on which to found the defence, and that
the choice of juridical basis determines
whether the mental element of the defence is
analyzed subjectively or objectively. The first
possible basis is the substantive defence of
entrapment found in the Criminal Code. The
mental element under the Criminal Code is
subjective: the Court examines the accused’s
predisposition to commit the crime in ques-
tion. The second basis is procedural, deriving
from the doctrine of abuse of process. This
is not a true defence, and the remedy is not
acquittal but a judicial stay of proceedings.
Here the analysis is objective, focussing on
the effect of the impugned police practices on
the integrity of the criminal justice system.
Finally, a defence of entrapment may be
founded on sections 7 and 24 of the Cana-
dian Charter of Rights and Freedoms. The
mental element and remedy under the
Charter are similar to those relevant to the
procedural basis. The author notes that the
procedural approach has predominated in
Canadian courts, but he detects a recent will-
ingness to accept entrapment defences based
on the Charter.
Dans ce commentaire,
‘auteur aborde le
moyen de defense de provocation ft ]a lu-
mitre de deux r~centes decisions de la Cour
d’appel de la Colombie-Britannique, soit R.
c. Mack et Showman c. R. Ilauteur remarque
qu’iI existe trois fondements possibles A cc
moyen de defense, et que le choix du fon-
dement juridique d~terminera si l’616ment
mental de l’accus6 sera appr~ci6 de fagon sub-
jective ou objective. Le premier fondement
possible est la disposition substantive sur la
defense de provocation que l’on retrouve
dans le Code criminel. L16ment mental en
vertu du Code criminel est subjectif. le tri-
bunal considre les predispositions de l’ac-
cus6 A commettre le crime en question. Le
second fondement est de nature proc~durale,
qui d~coule de la doctrine d’abus de droit. I1
ne s’agit pas d’un v6ritable moyen de d6fense,
et le r~sultat n’est pas racquittement, mais
bien la simple suspension des procedures. Ici,
l’analyse est de type objectif, en ce que l’at-
tention est port~e sur certaines pratiques po-
lici~res A 8tre r~prim~es au nom de l’int~grit6
du systmejudiciaire. Finalement, la d6fense
de provocation peut trouver fondement dans
les articles 7 et 24 de ]a Charte canadienne
des droits et libert~s. L’6l6ment mental requis
et le r~sultat de cette d~fense sont alors si-
milaire A ceux que l’on retrouve lorsque le
moyen de defense se fonde sur des consid6-
rations procdurales. L’auteur rappelle que
l’approche procgdurale semble prgdominer
dans la jurisprudence canadienne, mais il re-
marque une tendance rgcente seIon laquelle
les tribunaux opteraient pour une d6fense de
provocation fondge sur la Charte.
*LL.M., of La Haye, Stober, Avocats-Barristers, Montreal.
19881
COMMENT
The elusive defence of entrapment, back before the Supreme Court of
Canada in R. v. Mack’ and Showman v. R.,2 is attempting again to find a
place in Canadian criminal law.
Canadian criminal courts have grappled with this defence for years.
Some have rejected it3 or accepted it in some form,4 whereas others have
distinguished it on the facts5 or sidestepped it altogether by ruling on other
issues. 6
The defence of entrapment is a creation of the courts, there being no
statutory basis, 7 and despite recommendations to enact such a defence, 8
legislation does not appear to be forthcoming.
1(1985), 23 C.C.C. (3d) 421, 49 C.R. (3d) 169 (B.C.C.A.) [hereinafter Mack (B.C.C.A.) cited
to C.C.C.], aff’g R. v. Mack (1983), 34 C.R. (3d) 228 (B.C. Co. Ct) [hereinafter Mack (B.C.
Co. Ct)]; leave to appeal to S.C.C. granted 24 February 1986, [1986] 1 S.C.R. x.
2(6 January 1986), Vancouver CA002218 (B.C.C.A.) [hereinafter Showman]; leave to appeal
to S.C.C. granted 24 February 1986, [1986] 1 S.C.R. xiii.
3R. v. Chernecki [1971] 5 W.W.R. 469, 4 C.C.C. (2d) 556, 16 C.R.N.S.-230 (B.C.C.A.).
4R. v. Shipley [1970] 2 O.R. 411, [1970] 3 C.C.C. 398 (Co. Ct) [hereinafter Shipley]; R. v.
MacDonald (1971), 15 C.R.N.S. 122, 13 Crim. L.Q. 502 (B.C. Prov. Ct); R. v. Sampare (1977),
6 B.C.L.R. (Prov. Ct); R. v. Haukness [1976] 5 W.W.R. 420 (B.C. Prov. Ct) [hereinafter
Haukness]; R. v. Sabloff[1979] C.S. 821 [hereinafter Sablof]; R. v. Rippey (1981), 65 C.C.C.
(2d) 158 (N.S. Co. Ct); R. v. Jeanrie [1984] C.S.R 1015 [hereinafter Jeanrie]; R. c. McCann
(1985), 16 C.R.R. 136 (Ont. Prov. Ct) [hereinafter McCann]; R. v. Gudbrandson (1986), 53
C.R. (3d) 20 (B.C. Co. Ct) [hereinafter Gudbrandson]; R. v. Gingras (4 December 1987), Mon-
treal 500-01-012339-864 (Que. S.C.) [hereinafter Gingras]; Baxter v. R. [1983] C.A. 412, 9
C.C.C. (3d) 555 [hereinafter Baxter], R. v. Misra (1986), 54 C.R. (3d) 305 (Sask. C.A.); R. v.
Ashoona (1988), 38 C.C.C. (3d) 163 (N.W.T.S.C.) [hereinafter Ashoona].
5R. v. Ormerod [1969] 2 O.R. 230, [1969] 4 C.C.C. 3, 6 C.R.N.S. 37 (C.A.) [hereinafter
Ormerod]; R. v. Bonnar (1975), 30 C.C.C. (2d) 55, 34 C.R.N.S. 182 (N.S.C.A.) [hereinafter
Bonnar cited to C.C.C.]; R. v. Coupal (1986), 31 C.C.C. (3d) 31 (B.C.C.A.) [hereinafter
Coupal]; Dionne v. R. (1987), 58 C.R. (3d) 351 (N.B.C.A.) [hereinafter Dionne]; R. v. Ridge
(1979), 51 C.C.C. (2d) 261 (B.C.C.A.) [hereinafter Ridge]; R. v. Biddulph (No. 1) (1987), 1
W.C.B. (2d) 438 (Man. C.A.) [hereinafter Biddulph]; R. v. Kirzner (1977), 38 C.C.C. (2d) 131,
81 D.L.R. (3d) 229, 18 N.R. 400 (S.C.R.) [hereinafter Kirzner cited to C.C.C.], aff’g (1975),
32 C.C.C. (2d) 76 (Ont. C.A.); Amato v. R. [1982] 2 S.C.R. 418, [1983] 1 W.W.R. 1, 69 C.C.C.
.(2d) 31, 29 C.R. (3d) 1, 140 D.L.R. (3d) 405, 42 N.R. 487 [hereinafter Amato cited to S.C.R.],
aff’g (1979), 51 C.C.C. (2d) 401, 12 C.R. 386 (B.C.C.A.) [hereinafter Amato (B.C.C.A.) cited
to C.C.C.].
6Lemieux v. R. [1967] S.C.R. 492, [1968] 1 C.C.C. 187, 2 C.R.N.S. 1, 63 D.L.R. (2d) 75
[hereinafter Lemieux]; R. v. Madigan [1970] 1 O.R. 80, [1970] 1 C.C.C. 354, 6 C.R.N.S. 180
(C.A.); Amsden v. Rogers (1916), 9 Sask. L.R. 323, 10 W.W.R. 1337, 26 C.C.C. 389, 30 D.L.R.
354 (S.C.); R. v. Woods (1968), [1969] 3 C.C.C. 222, 7 C.R.N.S. 1 (Ont. C.A.).
7Subject to potential development under s. 7(3) of the Criminal Code, R.S.C. 1970, c. C-34
[hereinafter the Criminal Code], and the Canadian Charter of Rights and Freedoms, Part I of
the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [here-
inafter the Charter].
sReport of the Canadian Committee on Corrections: Towards Unity: Criminal Justice and
Corrections (Ottawa: Queen’s Printer, 1969) (Chair. R. Ouimet) at 75-76 [hereinafter Ouimet
REVUE DE DROIT DE McGILL
[Vol. 33
Entrapment has been defined as “the conception and planning of an
offense by an officer, and his procurement of its commission by one who
would not have perpetrated it except for the trickery, persuasion, or fraud
of the officer.” 9
In Canada and in other common law jurisdictions, the courts have
traditionally approved the use of police stratagems and subterfuge in the
detection of crime, particularly regarding consensual crimes or “crimes with-
out victims”, due to the lack of a complainant or aggrieved victim –
other
than society itself –
hence the difficulty in obtaining evidence through
ordinary means of law enforcement and crime detection. 10 As a result, the
police have not been strait-jacketed by artificial means of detection which
would be illusory “on the streets”.
As Mr Justice Lamer has stated, “the investigation of crime and the
detection of criminals is not a game to be governed by the Marquess of
Queensbury rules”‘” and further that “[t]he authorities, in dealing with
shrewd and often sophisticated criminals, must sometimes of necessity re-
sort to tricks or other forms of deceit …,.12
Consequently, police stratagems and undercover operations amounting
to traps which provide opportunities for willing persons to commit offences
are recognized as permissible crime detection methods. 3 The difficulty
arises when police practices, usually involving informers and undercover
operatives, although designed for crime detection, become methods of in-
stigating crime, particularly by persons who would not otherwise have im-
plicated themselves criminally. It is in this context that the question of
entrapment arises.
Chief Justice Laskin underlined the problem as follows:
Committee]; Commission of Inquiry Concerning Certain Activities of the Royal Canadian
Mounted Police, 2d report, Freedom and Security Under the Law (Ottawa: Supply & Services,
1982) (Chairn D.C. McDonald) vol. 2 at 1051-53 [hereinafter McDonald Commission].
9Sorrells v. United States, 287 U.S. 435 at 454 (1932), Roberts J. [hereinafter Sorrells]. This
definition was recently cited by Dickson C.J.C. in R. v. Jewitt (1985), 21 C.C.C. (3d) 7 at 21,
[1985] 6 W.W.R. 127, 47 C.R. (3d) 193, 20 D.L.R. (4th) 651, 61 N.R. 150 (S.C.C.) [hereinafter
Jewitt cited to C.C.C.], rev’g (1983), 5 C.C.C. (3d) 234, [1983] 4 W.W.R. 481, 34 C.R. (3d) 193
[hereinafter Jewitt (B.C.C.A.) cited to C.C.C.].
‘OR. v. Berdino [1924] 3 W.W.R. 198 at 201, 42 C.C.C. 308 (B.C.C.A.); R. v. White [1945]
O.R. 378 at 394, 84 C.C.C. 126 (C.A.); Kirzner, supra, note 5 at 135-36 per Laskin C.J.C.; see
also E.M. Schur, Crimes Without Victims (Englewood Cliffs, N.J.: Prentice-Hall, 1965).
“Rothman v. R. [1981] S.C.R. 640 at 647, 59 C.C.C. (2d) 30, 121 D.L.R. (3d) 578, 35 N.R.
485 [hereinafter Rothman cited to S.C.R.].
12Ibid.
13See Kirzner, supra, note 5 at 136.
1988]
CHRONIQUE DE JURISPRUDENCE
The problem which has caused judicial concern is the one which arises
from the police-instigated crime, where the police have gone beyond mere
solicitation or mere decoy work and have actively organized a scheme of en-
snarement, of entrapment, in order to prosecute the person so caught. In my
opinion, it is only in this situation that it is proper to speak of entrapment
and to consider what effect this should have on the prosecution of a person
who has thus been drawn into the commission of an offence.’ 4
In order to strike a balance between the protection of the public from
criminal activity and the protection of the individual from overzealous
police activity, control measures must be implemented to deal with entrap-
ment. 15 Ordinary measures, such as mitigation of sentence of the entrapped
accused, civil and criminal liability of the entrapper and accountability of
the offending officer before administrative disciplinary review boards, are
not sufficiently effective and may offer little solace to a convicted accused.
An effective control measure should block the intended aim of police en-
the conviction of the entrapped accused. This may be achieved
trapment –
by the courts by excluding evidence obtained by entrapment, staying pro-
ceedings or acquitting the accused. However, in order to avoid a legal im-
broglio, the courts must be consistent in their approach and in the juridical
basis underlying it.
The “defence” of entrapment presupposes the commission of the of-
fence. Thus, the constituent elements of the offence, the actus reus and mens
rea, are complete.’ 6 There are two approaches or schools of thought with
respect to the application of the defence.
Pursuant to the subjective approach, which has been adopted by the
United States Supreme Court,’ 7 the accused is exonerated due to a lack of
predisposition to commit the offence prior to the instigation by law en-
forcement officers or their agents (i.e. informers).
14Ibid.
‘WIbid. at 135-38. See also M.L. Friedland, “Controlling Entrapment” (1982) 32 U.T.L.J. 1;
D. Stuart, Canadian Criminal Law: A Treatise, 2d ed. (Toronto: Carswell, 1987) at 480-93.
Note that the Crown’s refusal to disclose the identity and whereabouts of an informer may
affect the accused’s right to make full answer and defence, and lead to a stay of proceedings:
see R. v. Davies (1982), 1 C.C.C. (3d) 299, 31 C.R. (3d) 88 (Ont. C.A.); Gudbrandson, supra,
note 4; R. v. Ross (1984), 15 C.C.C. (3d) 177, 42 C.R. (3d) 49 (B.C. Co. Ct); R. v. Farrer (1975),
32 C.C.C. (2d) 84 (Ont. Co. Ct).
‘6See Amato, supra, note 5 at 445; Sabloff, supra, note 4 at 829; Gingras, supra, note 4 at
11.
“7Sorrells, supra, note 9; Sherman v. United States, 356 U.S. 369 (1958) [hereinafter
Sherman]; United States v. Russell, 411 U.S. 423 (1973) [hereinafter Russell]; Hampton v.
United States, 425 U.S. 484 (1976) [hereinafter Hampton]. This subjective defence is a matter
of statutory construction in that Congress had not intended its statutes to be enforced when
otherwise-innocent persons are entrapped by the police. This defence is also known as the
“origin of intent”, “genesis of intent” or “creative activity” formulation.
McGILL LAW JOURNAL
[Vol. 33
The objective view, which has found support in a minority of the United
States Supreme Court18 and in certain state courts,1 9 focuses on the police
conduct and its effect on the integrity of the criminal justice system, re-
gardless of the predisposition of the accused.
Each of these views is based upon different rationales, but appears to
find its basis in the common law. It is noteworthy, however, that in England,
the House of Lords has rejected a defence of entrapment. 20
Canadian criminal courts have been inconsistent with respect to the
existence of a defence of entrapment. Futhermore, in those rare cases where
the defence has been recognized, the courts have been equally inconsistent
with respect to which of these approaches (subjective or objective) applies,
and what legal basis supports it.
Entrapment has previously been before the Supreme Court of Canada,
although neither its existence as a defence, nor its ingredients, has achieved
recognition by a majority of the Court.
In Lemieux v. R., 21 as a result of the participation of the police and
the consent of a homeowner, Lemieux was acquitted of break and enter, on
appeal, due to the absence of the actus reus, one of the essential elements
of the offence.22 Mr Justice Judson, on behalf of the Court, appeared to
have rejected an entrapment defence altogether, stating:
Had Lemieux in fact committed the offence with which he was charged,
the circumstance that he had done the forbidden act at the solicitation of an
agent provocateur would have been irrelevant to the question of his guilt or
innocence. The reason that this conviction cannot stand is that the jury were
not properly instructed on a question vital to the issue whether any offence
had been committed.23
conduct” or “hypothetical person” formulation.
18lbid. This objective defence is based on public policy. It has been referred to as the “police
19See R. Park, “The Entrapment Controversy” (1975-76) 60 Minn. L. Rev. 163 at 166-69.
20R. v. Sang (1979), [1980] A.C. 402, [1979] 3 W.L.R. 263, [1979] 2 All E.R. 1222 (H.L.)
[hereinafter Sang].
21Supra, note 6.
nThus the intervention of the authorities and/or the victim may lead to an acquittal by
negating one of the constituent elements of an offence. See R. v. Snyder (1915), 24 C.C.C. 101
(Ont. C.A.); R. v. Kotyszyn (1949), 95 C.C.C. 261 (Que. K.B.); Detering v. R. [1982] 2 S.C.R.
583, 70 C.C.C. (2d) 321, 31 C.R. (3d) 354; Haughton v. Smith [1973] 3 All E.R. 1109 (H.L.).
Professor Williams suggests a parallel between the position of the owner in respect of crimes
against property and the position of the police in respect of crimes against the state: see G.
Williams, Criminal Law: The General Part, 2d ed. (London: Stevens & Sons, 1961) at 782; R.
v. Burke (1978), 44 C.C.C. (2d) 33 at 49-50 (PE.I.C.A.) [hereinafter Burke].
23Supra, note 6 at 496.
1988]
COMMENT
Entrapment, either as a substantive defence or based upon the doctrine
of abuse of process, was rejected on the facts, but left open in R. v. Kirzner.24
In the majority judgment, Mr Justice Pigeon (with whom Martland, Ritchie,
Beetz and Pratte JJ. concurred) held that the evidence was not open to the
entrapment claim. In a minority concurring judgment, Chief Justice Laskin,
with whom Spence J., Dickson J. (as he then was) and Estey J. concurred,
appeared to favour a substantive defence of entrapment. 25 His Lordship
stated:
In these circumstances, I would not, however, endorse the view of the
Ontario Court of Appeal in the present case or of the British Columbia Court
of Appeal in Chernecki rejecting entrapment as a defence. There are good
reasons for leaving the question open. Indeed, if that position is based on a
static view of s. 7(3) of the Criminal Code I find it unacceptable. I do not think
that s. 7(3) should be regarded as having frozen the power of the Courts to
enlarge the content of the common law by way of recognizing new defences,
as they may think proper according to circumstances that they consider may
call for further control of prosecutorial behaviour or of judicial proceedings. 26
And further:
Having indicated that I prefer to leave open the question whether entrapment,
if established, should operate as a defence I express no view on the approach
taken in the Haukness case. Similarly, I leave open the question whether the
appropriate way to deal with entrapment is by a stay of proceedings, a matter
considered by this Court in another context in R. v. Rourke …. 27
In Amato v. R., 28 Dickson J. (as he then was) with whom Martland,
Beetz and Chouinard JJ. concurred, held that “on the facts of this case the
defence of entrapment, assuming it to be available under Canadian law,
does not arise”.2 9 This reasoning, once again, would leave open, if not
implicitly recognize, a defence of entrapment.
If available, the application of a defence of entrapment would be re-
stricted, pursuant to this decision, because of its rejection on what appeared
to be a strong factual setting involving: police instigation of the events
leading to the charges; indirect suggestions of violence; persistent solicitation
of the accused by a paid police informer with a drug-related criminal record
and later by an undercover police officer; the lack of any wrongdoing by
24Supra, note 5.
25Prior to Kirzner, in Ormerod, supra, note 5, Laskin J.A. (as he then was) leaned towards
abuse of process as a basis for the entrapment defence. Subsequent to Kirzner, Laskin C.J.C.
concurred in the dissenting judgment of Estey J. in Amato, supra, note 5, in which abuse of
process was recognized as the basis for the defence.
26Kirzner, supra, note 5 at 137-38.
2 Ibid. at 141.
28Supra, note 5.
29Ibid. at 464.
REVUE DE DROIT DE McGILL
[Vol. 33
the accused until approached by the informer; and even then, the accused
did not benefit from the transactions.
Mr Justice Ritchie rendered a separate opinion (concurring with Dick-
son J.) that the appeal should be dismissed, thereby constituting a majority,
but for different reasons. Although Ritchie J. did not find entrapment on
the facts, after referring to Kirzner, he acknowledged the existence of a
defence of entrapment as follows:
[T]he weight of authority is to the effect that in a case where the evidence
discloses that the crime in question would not have been committed save for
the “calculated inveigling or persistent importuning” of the police it may then
be apparent that it was the creative activity of the police rather than the in-
tention of the accused which gave rise to the crime being committed. In such
event the essential element of mens rea would be absent and the accused’s
defence would be established.30
His Lordship summarized:
In my view it is only where police tactics are such as to leave no room for the
formation of independent criminal intent by the accused that the question of
entrapment can enter into the determination of his guilt or innocence.31
This reasoning appears to justify a subjective substantive defence, but
is somewhat incongruous. Rather than considering the offence as commit-
ted, but excused or justified as a result of entrapment, Ritchie J. would view
entrapment as eliminating mens rea, the result being that no offence is
committed at all. 32
The constituent elements of an offence, the actus reus and mens rea,
must, of course, be complete for an offence to be committed and an accused
convicted. Entrapment does not eliminate these elements. It instigates the
commission of a complete offence. An entrapped accused still commits the
offence with the requisite mens rea, albeit after inducement by, or on behalf
of, law enforcement officials. A substantive defence would excuse or justify
the accused’s conduct due to police entrapment. Therefore, notwithstanding
the commission of the offence, the accused would be exonerated much like
one who benefits from the defences of due diligence, necessity, compulsion,
duress or self-defence.
In an oft-cited and lengthy dissenting judgement, Mr Justice Estey, (with
whom Laskin C.J.C., McIntyre and Lamer JJ. concurred) recognized the
“defence” of entrapment, the roots of which are to be found in the common
3OIbid. at 471-72.
31Ibid. at 473. See the judgments of Angers and Rice JJ.A. in Dionne, supra, note 5 at 353-
32With respect to police conduct eliminating the actus reus, see Lemieux, supra, note 6;
56; see also Ashoona, supra, note 4.
Burke, supra, note 22 at 49-50.
1988]
CHRONIQUE DE JURISPRUDENCE
law. On the facts of Amato, His Lordship applied the “defence”, concluding
as follows:
The cumulative effect of such a deliberately launched enterprise by the police
would in my view “in all the circumstances” be viewed in the community as
shocking and outrageous, and such conduct is clearly contrary to the proper
principles upon which justice must be done by the courts.33
Mr Justice Estey considered the defence to be a form of abuse of process,
the remedy for which would be a stay of proceedings. The issue would
accordingly be a question of law for the trial judge alone to determine. Estey
J. laid out general, somewhat vague, guidelines regarding the component
elements of the defence, preferring to leave it to the case law to “paint in
the variants”. He stated:
The availability of this defence in law and the proper constituent elements
of the offence are closely entwined. Assuming the defence to be known to the
common law and available in Canadian criminal law, in a proper case what
are the component elements, the criteria to be met for its invocation ? It is,
of course, impossible to cast in futuro a set of guides, principles, rules or
yardsticks with satisfactory precision and detail. This defence perhaps more
than any other will succeed only in an unusual and delicately balanced set of
circumstances. Case law will have to paint in the variants. The principal ele-
ments or characteristics of the defence are that an offence must be instigated,
originated or brought about by the police and the accused must be ensnared
into the commission of that offence by the police conduct; the purpose of the
scheme must be to gain evidence for the prosecution of the accused for the
very crime which has been so instigated; and the inducement may be but is
not limited to deceit, fraud, trickery or reward, and ordinarily but not neces-
sarily will consist of calculated inveigling and persistent importuning. The
character of the initiative taken by the police is unaffected by the fact that the
law enforcement agency is represented by a member of a police force or an
undercover or other agent, paid or unpaid, but operating under the control of
the police. In the result, the scheme so perpetrated must in all the circumstances
be so shocking and outrageous as to bring the administration of justice into
disrepute.
At least one relevant circumstance in examining the character in law of
the police conduct (such as persistent importuning) is whether the law enforce-
ment agency had a reasonable suspicion that the accused would commit the
offence without inducement. By itself and without more the predisposition in
fact of the accused is not relevant to the availability of the defence. On the
other hand, where the true purpose of the police initiative is to put the en-
forcement officers in a position to obtain evidence of an offence when com-
mitted, absent other circumstances already noted, the concept of entrapment
does not arise.
Each case will turn within the influence of these factors according to its
own circumstances. The root of the defence must, in my view, be the same as,
33Amato, supra, note 5 at 464.
McGILL LAW JOURNAL
[Vol. 33
for example, the exclusion of involuntary confessions. The integrity of the
criminal justice system demands the rule. 34
And further:
The consensual crimes, their detection and demonstration in court, raise new
issues or aggravate the problems surrounding older issues. The appointed spy
may, pursuant to arrangements, infiltrate and report upon participants in a
crime to which the agent may be a party or which the agent has provided to
others the opportunity to commit. In some circumstances, indeed, the offence
would in all likelihood not have otherwise been committed. The law enforce-
ment agency in these circumstances moves from the position of merely af-
fording an opportunity for the commission of crime to persons who may be
so disposed to a position where the agency itself encourages the commission
of the crime. Expressed another way, the police may have by any such measures
instigated the offence, or at least its planning, and did so simply to catch the
otherwise innocent members of the public in order to prosecute them. The
ensnared or entrapped must in such a situation have a defence in law for the
police and the state have gone beyond mere crime detection by decoy work or
solicitation of evidence. In fact the crime has been designed and committed
by the state itself.35
This judgment adheres to an objective approach similar to that adopted by
a minority of the United States Supreme Court.
Therefore, in Amato, five Justices of the Supreme Court of Canada (a
majority) recognized the existence of a defence of entrapment without, how-
ever, any consensus with respect to its form or basis. As a result, Canadian
criminal courts faced with the defence have not taken a uniform and con-
sistent position, and the issue is still open.
The confusion manifested itself in Baxter v. R.,36 in which a majority
of the Quebec Court of Appeal, while referring to Amato as the authority
for recognizing a defence of entrapment, supported an independent sub-
stantive defence infused with a subjective content focusing on the predis-
position of the accused to commit the offences charged, and held that the
factual determination of the defence should be left with the jury. A dissenting
opinion, following Estey J.’s decision in Amato, favoured the opposing ob-
jective approach which scrutinizes the conduct of the police without regard
341bid. at 446-47.
35Ibid. at 458. See D. Stuart, “Amato: Watersheds in Entrapment and Abuse of Process”
(1982) 29 C.R. (3d) 54.
36Supra, note 4.
1988]
COMMENT
for the subjective consequences on the accused’s behaviour. In fact, accord-
ing to this dissenting opinion, it is the police alone who are on trial.37
Much of the confusion in Canadian criminal courts confronted with
the entrapment issue stemmed from the uncertainty surrounding the exist-
ence of the doctrine of abuse of process and its remedial judicial stay of
proceedings. This uncertainty has since been resolved by the Supreme Court
of Canada in R. v. Jewitt3 8 in which the Court recognized the existence, at
common law, of a discretionary judicial power (vested in trial court judges)
to stay proceedings in a criminal case for abuse of process,
where compelling an accused to stand trial would violate those fundamental
principles of justice which underlie the community’s sense of fair play and
decency and to prevent the abuse of a court’s process through oppressive or
vexatious proceedings. It is a power, however, of special application which can
only be exercised in the clearest of cases. 39
In Jewitt, entrapment was raised in the lower courts but was not before
the Supreme Court which, after ruling on the principal issues before it,40
directed the British Columbia Court of Appeal to hear and determine the
merits.
An end to the entrapment debate may be forthcoming as the question
is presently before the Supreme Court of Canada in Mack and Showman.
However, the facts allegedly supporting an entrapment defence in both cases,
particularly Showman, do not appear to be as strong as those disclosed in
Amato. Although the Court could, as in Kirzner and Amato, rule that the
facts do not give rise to entrapment, without deciding further, it is hoped
that the law be settled, and a clear position taken, regarding the existence
of a defence of entrapment.
37This uncertainty is further reflected in Jeanrie, supra, note 4, where the Quebec Court of
Sessions of the Peace did not follow the majority judgments in Baxter. The court adopted the
dissenting judgments of Vallerand J.A. in Baxter and Estey J. in Amato. In Gingras, supra,
note 4, although a Quebec Superior Court jury found entrapment, Boilard J. convicted the
accused, as he did not find a stay of proceedings to be justified in the circumstances. See also
Dionne, supra, note 5; Jewitt (B.C.C.A.), supra, note 9 per Anderson J.A., dissenting in part;
Bonnar, supra, note 5.
38Supra, note 9.
391bid. at 135, where the Supreme Court adopted this conclusion of the Ontario Court of
Appeal in R. v. Young (1984), 46 O.R. (2d) 520 at 551, 13 C.C.C. (3d) 1, 40 C.R. (3d) 289
[hereinafter Young cited to O.R.].
40On the principal issue, the Supreme Court ruled that a stay of proceedings is tantamount
to a judgment or verdict of acquittal from which the Crown may appeal pursuant to s. 605(l)(a)
of the Criminal Code. See M. Stober, “Notes and Comments, Abuse of Process – Stay of
Proceedings, R. v. Jewitt” (1986) 28 Crim. L.Q. 148; D. Stuart, Annotation, R. v. Jewitt (1985)
47 C.R. (3d) 193. With respect to the judgment of Anderson J.A. (dissenting in part) of the
British Columbia Court of Appeal, see S. France, “Jewitt: The Entrapment Defence Succeeds”
(1983) 34 C.R. (3d) 224.
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[Vol. 33
In Mack, at the conclusion of the evidence at the accused’s tiial for
trafficking in cocaine, defence counsel applied for a stay of proceedings based
upon entrapment. County Court Judge Wetmore adhered to the reasoning
of Estey J. in Amato, but rejected the defence application and found the
accused guilty.
His Honour considered the issue to be a separate matter from the trial
proper, upon which the accused had an evidential burden to satisfy the court
“on a balance of probabilities that there has been an ‘entrapment’ which
would constitute an abuse of the processes of the court.” 4′ The ruling, he
added, would have been different if the Crown had to negate entrapment
beyond a reasonable doubt. Although the opportunity to commit the offence
was made available through the tactics of the police and their agent, Wet-
more Co. Ct J. made particular note of the accused’s prior drug record and
of the alacrity of his actions after seeing the cash, and found that it was “far
more probable that the accused became involved in this transaction for
profit, rather than through persistent inducement and fear.”42
An appeal by the accused was dismissed by a panel of five Justices of
the British Columbia Court of Appeal, in a decision which dealt with the
predominant issues in entrapment cases. In view of Amato and Jewitt, the
Court of Appeal held that entrapment is now available, not as a traditional
defence, but as an aspect of abuse of process.
With respect to its application, the Court held that the issue is a question
of law which must be determined by the trial judge and that the accused
has the onus of establishing entrapment on a preponderance of evidence or
a balance of probabilities, that is, “that the conduct of the police or its
representatives is an abuse of the court’s process.” ’43
The Court pointed out that the criterion for such a stay of proceedings
at common law –
the bringing of the administration ofjustice into disrepute
–
is the same for an order to exclude evidence pursuant to subsection 24(2)
of the Charter. Under this provision, the onus is clearly on the accused-
applicant to establish, on a balance of probabilities, that the admission of
the evidence would bring the administration of justice into disrepute.44
Consequently, the Court found that it would be anomalous if the same
burden of proof were not to be shouldered by the accused in both situations.
41Mack (B.C. Co. Ct), supra, note 1 at 234.
42Ibid. at 237.
43Mack (B.C.C.A.), supra, note 1 at 433. In Jewilt (B.C.C.A.), supra, note 9 at 257, Anderson
J.A. (dissenting in part) held that the accused is entitled to the benefit of any reasonable doubt
on the issue of entrapment.
44Collins v. R. [1987] 1 S.C.R. 265 at 280, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 [hereinafter
Collins cited to S.C.R.]; see text accompanying notes 66-79, below.
1988]
CHRONIQUE DE JURISPRUDENCE
On the facts, the Court of Appeal found that the trial judge was justified
in concluding that there was no entrapment in this case.
In Showman, the trial for trafficking in marijuana proceeded before
judge and jury. On voir dire, the trial judge ruled that “the Crown has proved
beyond a reasonable doubt that the accused had not been entrapped into
committing this offence.”‘ 45 The trial judge found that the accused was pre-
disposed to commit the offence, having come to an independent decision
to sell drugs. The accused was subsequently convicted and appealed to the
British Columbia of Appeal.
The Court considered the defence of entrapment as it had previously
done in the Mack case. The Court affirmed the finding of the trial judge
and stated that the accused had not established entrapment on a balance
of probabilities. However, the Court also pointed out that the trial judge
erred in favour of the accused by imposing on the Crown the ordinary
burden of proving beyond a reasonable doubt that the accused was not
entrapped.
In Showman, the evidence disclosed ordinary solicitation of an eager
trafficker of marijuana by the police and their agent. More persistence was
required in Mack.
Notwithstanding reliance by the British Columbia Court of Appeal, in
both decisions, on abuse of process as the basis for the defence of entrap-
ment, the predisposition of the accused was dispositive of the entrapment
issue. Abuse of process, it seems, was no more than the procedural vehicle
for the defence as its content drew elements from what would be a subjective
substantive defence by inquiring into the pre-existing intention of the ac-
cused to commit the offence charged, something Estey J. in Amato consid-
ered, by itself, to be irrelevant. These cases further demonstrate, therefore,
that the content of the defence of entrapment is not settled.46
However, in addition to deciding upon the existence of the defence of
entrapment and its availability on the facts, these cases pinpoint the recur-
ring issues that arise in entrapment cases, which can be summed up as
follows:
1) What is the legal basis of the defence?
45Supra, note 2 at 1.
46Coupal, supra, note 5; Ridge, supra, note 5 (both decisions of the B.C. Court of Appeal).
Note that in Jewitt (B.C.C.A.), supra, note 9 at 257-59, although Anderson J.A. (dissenting in
part) adhered to Estey J.’s judgment in Amato, he preferred, as a remedy, an acquittal rather
than a stay of proceedings. See S.D. Frankel, “Entrapment Recent Happenings” (1985) 43
Advocate 505.
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2) Is entrapment a question of law to be determined by the trial judge
or is it a factual issue to be determined by the jury?
3) What is the burden of proof with respect to entrapment and upon
whom does it rest?
Although inconsistency remains since Amato, the popular view of Ca-
nadian criminal courts appears to be recognition of a defence of entrapment
as an aspect of abuse of process with its remedial judicial stay of proceedings
(ironically, in practice, the predisposition of the accused is rarely excluded
as a significant factor). This is a novel approach in Canadian criminal law.
Unlike the American constitutional tradition whereby the courts control
the police investigative stage through exclusionary rules of evidence, 47 Ca-
nadian courts, independent of the Charter and in accordance with the com-
mon law, have refused to scrutinize the means of obtaining evidence except
with respect to extra-judicial confessions. Canadian courts have traditionally
been concerned with the search for the truth and fairness at trial rather than
with illegal or improper police methods in obtaining evidence, or their effect
on the public’s conception of the administration of justice. 48
Moreover, our courts have traditionally focused on the individual ac-
cused before the court, and have, accordingly, been called upon to determine
the applicability of certain established defences such as drunkenness, alibi,
mistake of fact, self-defence, necessity, compulsion and duress, all of which
are personal to the accused. No overall collective policy or concern regarding
the integrity of the administration of justice arises.
Entrapment cases differ from others in that they relate to police conduct
which contributes to the commission of a crime, as opposed to police con-
duct in the course of an investigation after a crime has been committed. 49
In order to finally settle the different issues found in entrapment cases,
the legal basis of the entrapment defence must be determined conclusively.
There appear to be three legal bases which may underlie a defence of
entrapment:
on the Constitution: see text accompanying notes 67-68, below.
47Note that the defence of entrapment recognized by the U.S. Supreme Court is not based
48Pursuant to the common law, the courts have determined that relevant evidence of sub-
stantial probative value is admissible, regardless of how it was obtained, unless it is of trifling
weight and gravely prejudicial to the accused: R. v. Wray (1970), [1971] S.C.R. 272, [1970] 4
C.C.C. 1, 11 C.R.N.S. 235; Sang, supra, note 20.
49Amato, supra, note 5 at 454; Young, supra, note 39 at 551; Re R. and Rourke (1975), 25
C.C.C. (2d) 555 at 567 (B.C.C.A.), aff’d Rourke v. R. (1977), [1978] 1 S.C.R. 1021, 35 C.C.C.
(2d) 129, [1977] 5 W.W.R. 487, 38 C.R.N.S. 26.
19881
COMMENT
1) subsection 7(3) of the Criminal Code, the substantive common law
defence leading to an acquittal;
2) the common law doctrine of abuse of process and its remedial judicial
stay of proceedings; and
3) section 7 of the Charter and remedies under section 24, in particular,
the exclusion of evidence and a judicial stay of proceedings.
A common law substantive defence of entrapment pursuant to subsec-
tion 7(3) of the Criminal Code would adhere to a subjective test and focus
on the primary issue before the court, that is, the guilt or innocence of the
accused, rather than police conduct. As a result, the “culpability” and pre-
disposition of the accused would preoccupy the court rather than a general
concern for the integrity of the criminal justice system.50
Although the offence is technically committed, the subjective approach
aims to distinguish between those who are blameworthy and those who are
not (as a result of an outside force operating on them) and to excuse the
latter from having committed the offence by acquitting them (not unlike
the defences of self-defence, compulsion, duress and necessity).5 In this
way, the courts would “manufacture” a defence through the development
of the common law to deal with “manufactured” crime.
A substantive defence of entrapment, where supported by evidence,
should be put to the jury for determination, subject, of course, to the di-
rectives of the presiding judge as to what facts, if accepted, could constitute
entrapment. 52 If accepted by the jury, then, as is the case with other sub-
stantive defences, the accused would be acquitted. Unlike traditional de-
fences where the accused benefits from any reasonable doubt, the preferred
view, when this defence is raised, is for the accused to shoulder the burden
of proof and establish the defence on a preponderance of evidence or a
balance of probabilities. 5 3 Since an accused who raises a defence of self-
defence, compulsion, duress or necessity as an excuse or justification for
having committed an offence, benefits from any reasonable doubt, it seems
50Ouimet Committee, supra, note 8 at 79; McDonald Commission, supra, note 8 at 1053-
54.
199 at 236-41.
51P.H. Robinson, “Criminal Law Defenses: A Systematic Analysis” (1982) 82 Col. L. Rev.
52Kirzner, supra, note 5 at 139; Baxter, supra, note 4 at 413-14; Sabloff, supra, note 4 at 829;
Gingras, supra, note 4 at 10; Dionne, supra, note 5 at 354-56; Burke, supra, note 22 at 48-50;
McDonald Commission, supra, note 8 at 1052; D. Stuart, Annotation: R. v. Mack (B.C. Co.
Ct), (1983) 34 C.R. (3d) 228 [hereinafter Annot. B.C. Co. Ct]; Sherman, supra, note 17 at 377.
53Kirzner, ibid. at 141 (per Laskin C.J.C.); Baxter, ibid. at 414; Sabloff, ibid. at 830; Gingras,
ibid. at 11; McDonald Commission, ibid. at 1051.
REVUE DE DROIT DE McGILL
[Vol. 33
incongruous that the same evidentiary standard should not apply to an
accused raising this entrapment defence. 54
A substantive entrapment defence is not without drawbacks. It may be
contended that the police appear to be given a licence to entrap those in-
clined to criminality and the concern at trial would relate more to the
accused’s background and proclivities than to his guilt or innocence on the
facts giving rise to the charge. 55 Evidence with respect to such matters how-
ever, would have to comply with strict evidentiary rules: for example, similar
fact evidence, rebuttal evidence, hearsay, cross-examination of the accused
as to his previous convictions and so on. Moreover, our jurisprudence has
demonstrated that the question of an accused’s predisposition may be de-
termined by the degree of pressure applied by the police as well as the
accused’s conduct and statements in his dealings with undercover police
officers or informers prior to his arrest.56
Opponents of the subjective approach maintain that it creates an ar-
tificial distinction by restricting the defence to entrapment by police or their
agents and excluding its application to lay entrappers, since culpability is
not diminished according to the status of the entrapper.5 7 Moreover, the
suspect is unaware of the entrapper’s true identity. Entrapment by the police
or their agents, however, involves the state as entrapper and prosecutor.
Furthermore, for the courts to consider entrapment by private individuals
would be to increase the danger of collusion and false allegations, and this
would neither reflect a true search for guilt or innocence nor would it man-
ifest a desired aim of the criminal justice system. 58
Although a substantive defence of entrapment is more in line with the
philosophy of the common law and our criminal jurisprudence, Canadian
courts, in particular the Supreme Court of Canada, have been moving to-
wards examining police conduct and its effect on the community’s view of
54Perka v. R. [1984] 2 S.C.R. 233 at 257-58, 14 C.C.C. (3d) 385, [1984] 6 W.W.R. 289, 42
C.R. (3d) 113; Annot. B.C. Co. Ct, supra, note 52; Editor’s Note, R. v. Mack (B.C.C.A.), supra,
note 1.
5SSee the minority judgments in Sorrells, supra, note 9 at 458-59; Sherman, supra, note 17
at 382-84; and the dissenting judgments in Russell, supra, note 17 at 437, 443-44; see also R.A.
Rossum, “The Entrapment Defense and the Teaching of Political Responsibility: The Supreme
Court as Republican Schoolmaster” (1978) Am. J. Crim. Law 287 at 294-95 [hereinafter Ros-
sum]; R.C. Donnelly, “Judicial Control of Informants, Spies, Stool Pigeons, and Agents Prov-
ocateurs” (1951) 60 Yale L.J. 1091 at 1106-08.
56See cases cited, supra, notes 4 and 5.
57Amato (B.C.C.A.), supra, note 5 at 405; Sherman, supra, note 17 at 380; Russell, supra,
note 17 at 433-34; United States v. Garcia, 546 E 2d 613 (5th Circ. C.A., 1977), cert. denied
430 U.S. 958; Robinson, supra, note 51 at 237-38; Park, supra, note 19 at 240-43.
58Rossum, supra, note 55 at 303-04; Park, ibid. at 241-42, 271-72.
1988]
CHRONIQUE DE JURISPRUDENCE
the administration of justice, even prior to the enactment of the Charter.59
In this way, the courts are taking a more active role by developing policy
and, in fact, making law.
The objective approach to the defence of entrapment demonstrates this
change in perspective by focusing on active police practices and their effect
on the integrity of the criminal justice system. Little emphasis, if any, is
placed on the predisposition or “culpability” of the individual accused.
The propriety of police practices would be measured by requirements
of justice and fairness and by their probable effect upon a hypothetical
person. Egregious police initiatives, such as entrapment, offend common
notions of decency and fair play, thereby tainting and undermining respect
for the administration of justice, of which the police, the prosecution and
the judiciary are integral parts. The courts, therefore, as a matter of public
policy, withhold their processes from the prosecution of an entrapped ac-
cused notwithstanding the fact that the offence is committed and the accused
is not entitled to an acquittal.60 As a result, police conduct would be mon-
itored by the judiciary.
A defence of entrapment according to this objective approach is a ques-
tion of law, for the trial judge alone to determine, 61 as an aspect of abuse
of process with its remedial judicial stay of proceedings which puts an end
to the prosecution without, however, considering the merits of the case and
the culpability of the accused. Again, the preferred view places the onus on
the accused to establish entrapment on a preponderance of evidence or a
balance of probabilities.62
Positive aims and effects of this approach include the protection of the
purity and integrity of the criminal justice system, and the upholding of the
59Amato, supra, note 5, per Estey J. (in dissent); Rothman, supra, note 11, per Estey J. (in
dissent) and Lamer J.
6Amato, ibid. at 445, 463; Jewitt, supra, note 9 at 23.
6 Amato, ibid. at 448, per Estey J. (in dissent); Mack (B.C.C.A.), supra, note 1 at 428-31;
Showman, supra, note 2 at 2; Baxter, supra, note 4 at 416, 420-21, per Vallerand J.A. (in
dissent); Jewitt (B.C.C.A.), supra, note 9 at 254-56 per Anderson J.A. (dissenting in part);
Dionne, supra, note 5 at 356, 363; Ridge, supra, note 5 at 268-69; R. v. Hogans [1987] 1 W.C.B.
(2d) 259 (Ont. Dist. Ct) [hereinafter Hogans]; Jeanrie, supra, note 4 at 1025; Gingras, supra,
note 4 at 16, 28; Sorrells, supra, note 9 at 457.
62Mack (B.C.C.A.), ibid. at 431-33; Mack (B.C. Co. Ct), supra, note 1 at 232-34; Showman,
ibid. at 2; Gudbrandson, supra, note 4 at 40; Hogans, ibid. at 59; Gingras, ibid. at 16, 17, 28.
But see Jevitt (B.C.C.A.), ibid. at 257 where Anderson J.A. was of the view that the accused
need only raise a reasonable doubt on the issue of entrapment; Wong Co. Ct J. (B.C.) instructed
the jury in this manner at trial, Jewitt (B.C.C.A.), ibid. at 245-46. See also Ashoona, supra,
note 4 at 169-70; Jeanrie, ibid. at 1023, and the trial judge’s ruling in Showman, ibid. at 1, 3,
4.
McGILL LAW JOURNAL
[Vol. 33
respect and confidence of the community in the administration of criminal
justice. Since the issue would be a question of law, the decisions of the courts
would have great significance in establishing standards and guidelines for
police conduct, a function juries are unable to accomplish. 63 As a result,
police misconduct would be deterred.
This objective defence also has its shortcomings. The police would be
held to the same standard of conduct when dealing with predisposed or
nondisposed persons. By focusing on police conduct instead of the culpa-
bility or predisposition of the accused, it creates a risk of absolving chronic
dangerous offenders. More importantly, by condoning certain less shocking
police practices without considering the accused’s predisposition, there is a
risk of convicting nondisposed persons who ought to be exonerated, where
a particular and susceptible accused (for example, a reformed drug addict,
a mentally imbalanced individual or a close friend of the entrapper) is
tempted in a situation in which a hypothetical person or a wary, but pre-
disposed and willing, criminal would have resisted. 4 The purity and integ-
rity of the criminal justice system are not maintained through results of this
kind.
A final and fertile means which may serve to challenge entrapment lies
in the Charter. Since the its provisions apply only to actions of the state,
pursuant to section 32, its application would be restricted to entrapment by
the police or their agents.
Is there a constitutional right not to be entrapped in Canada? Police
traps designed for the ordinary solicitation of predisposed persons would
not be an appropriate basis for an effective Charter challenge. Entrapment,
on the other hand, is tantamount to an invasion of personal integrity and
privacy in the form of pressure tactics designed to induce an otherwise-
innocent person to commit a crime conceived by representatives of the state
and for which this person will later by prosecuted by the state. Strong ar-
guments exist, therefore, that the entrapped person’s right to life, liberty and
security of the person, pursuant to section 7 of the Charter has been
breached. 65 And the means utilized to achieve the purpose envisaged by the
state are clearly far removed from any notion of fair play inherent in the
principles of fundamental justice, especially if the officials acted without
63Sherman, supra, note 17 at 385, per Frankfurter J. (for the minority); Jewitt (B.C.C.A.),
ibid. at 256, per Anderson J.A., dissenting in part.
“Rossum, supra, note 55 at 298-303; Park, supra, note 19 at 216-21; Baxter, supra, note 4;
McCann, supra, note 4; Shipley, supra, note 4; Sorrells, supra, note 9; Sherman, supra, note
17; United States v. Silva, 180 E Supp. 557 (U.S. Dist. Ct, S.D.N.Y., 1959).
65Section 7 was successfully raised in McCann, ibid. at 160-62; see also Jewitt (B.C.C.A.),
supra, note 9 at 254; Jeanrie, supra, note 4 at 1020, 1024; Re Uba andR. (1983), 5 C.C.C. (3d)
529 (Ont. H.C.) [hereinafter Uba]; Dionne, supra, note 5 at 354.
1988]
COMMENT
reasonable grounds at the outset.66 Moreover, contrary to section 1, not only
would such police entrapment methods be unreasonable, but also unjusti-
fiable in a free and democratic society.
The right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental
justice, are not precisely defined rights entrenched by Parliament in one
operation. As the courts adapt to new and changing conditions in the com-
munity, the exercise of these rights in new or untested circumstances in-
creases their potential but renders any clear definition unpredictable.
The Supreme Court of the United States has held that the defence of
entrapment is not of a constitutional dimension.67 However, members of
that Court, as well as of lower courts, have left the question open and would
apply a constitutional due process facet of the defence in the face of out-
rageous police conduct, notwithstanding the predisposition of the accused. 68
If then, there is, in Canada, a constitutional right not to be entrapped,
then the potential remedy is twofold: a stay of proceedings or the exclusion
of evidence obtained by entrapment, pursuant to subsections 24(1) and 24(2)
66Amato, supra, note 5. Note, however, that in the U.S., courts have held that there is no
constitutionally imposed requirement of reasonable suspicion before an undercover operation,
such as Abscam, can be commenced: see United States v. Janotti, 673 E2d 578 at 608-09 (3d
Circ. C.A., 1982) [hereinafter Janotti]; United States v. Myers, 635 E2d 932 at 940-41 (2d Circ.
C.A., 1980); cert. denied 449 U.S. 956 (1982); United States v. Kelly, 707 E 2d 1460 at 1471
(D.C.C.A., 1983) [hereinafter Kelly]. See also W.H. Hitchler, “Entrapment as a Defense in
Criminal Cases” (1937-38) 42 Dick. L. Rev. 195 at 200-01; G.E. Dix, “Undercover Investi-
gations and Police Rulemaking” (1974-75) Tex. L. Rev. 203 at 249-54. Does the right to be
secure against unreasonable search and seizure, pursuant to s. 8 of the Charter, extend to police
officers or their agents, who, in “searching” for crime and armed only with a suspicion, induce
an individual to commit an offence? Does entrapment infringe equality rights under s. 15 of
the Charter with respect to an individual arbitrarily selected to be entrapped? See D.L. Ro-
tenberg, “The Police Detection Practice of Encouragement” (1973) 49 Va. L. Rev. 871 at 894-
95, 901; Notes and Comments, “The Serpent Beguiled Me and I Did Eat: The Constitutional
Status of the Entrapment Defense” (1964-65) 74 Yale L.J. 942 at 944, 951-52.
67Hampton, supra, note 17 at 490-91, per Rehnquist J. (as he then was) in a plurality opinion.
68See the obiter comments of Rehnquist J. (as he then was), in Russell, supra, note 17 at
431-32: see also the separate judgments of Powell and Brennan JJ. in Hampton, ibid., in which
five of a panel of eight Supreme Court Justices, although not all arriving at the same conclusion
on the facts, would apply due process principles and the Court’s supervisory power in the face
of outrageous police conduct, notwithstanding the predisposition of the accused. Subsequent
to Hampton, this view has been reflected in lower court decisions: see Janotti, supra, note 66;
United States v. Alexandro, 675 E 2d 34 (2d Circ. C.A. 1982); Kelly, supra, note 66; United
States v Twigg, 588 E 2d 373 (3d Circ. C.A. 1978); see also L.W. Abramson & L.L. Lindeman,
“Entrapment and Due Process in the Federal Courts” (1980) 8 Am. J. Crim. Law 139.
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[Vol. 33
of the Charter, respectively.69 In most entrapment cases, the exclusion of
evidence would be tantamount to an acquittal because the evidence ob-
tained, which would be a direct consequence 70 of entrapment, would likely
constitute the only evidence relied upon by the prosecution for conviction.
Theoretically, a stay of proceedings has greater consequences in a crim-
inal trial than the exclusion of evidence. The stringent conditions in sub-
section 24(2) would, therefore, likely apply: that is, having regard to all the
circumstances, the admission of the evidence in the proceedings would bring
the administration ofjustice into disrepute. 71 In determining an appropriate
and just remedy under the Charter or a stay of proceedings based on abuse
of process, the courts will inevitably examine common elements in consid-
ering the impact of entrapment on the administration of justice.72
Decisions with respect to the existence of a Charter violation and, con-
sequently, the appropriate and just remedy, are questions of law for the trial
judge to determine. The burden of establishing the Charter breach and the
conditions precedent to a stay of proceedings or the exclusion of evidence
rests with the accused on a balance of probabilities. 73
The Supreme Court of Canada has already held that the onus of showing
that the administration of justice would be brought into disrepute is less
stringent than the community shock test. 74
Therefore, the terms used by Mr Justice Estey, in his dissenting judge-
ment in Amato, a pre-Charter case, do not escape notice. In defining en-
69Entrapment has not been challenged pursuant to the Canadian Bill of Rights, S.C. 1960,
c. 44, reprinted in R.S.C. 1970, App. III. The Bill of Rights, although containing a rule of
statutory construction (s. 2) which may, in rare cases, render a statutory provision inoperative
as in R. v. Drybones [1970] S.C.R. 282, [1970] 3 C.C.C. 355, or consistent with it as in Brown.
ridge v. R. [1972] S.C.R. 926, 7 C.C.C. (2d) 417, 18 C.R.N.S. 308, does not contain an en-
forcement section like s. 24, giving to the courts jurisdiction to grant remedies for violations
of the enumerated rights and freedoms. Whereas entrapment may be an infringement of rights
contained in s. l(1)(a) of the Bill ofRights (the right of the individual to life, liberty, security
of the person and enjoyment of property, and the right not to be deprived thereof except by
due process of law), the courts are not likely to refuse to apply the criminal law, pursuant to
s. 2 or the due process clause (see Curry. R. [1972] S.C.R. 889, 7 C.C.C. (2d) 181, 18 C.R.N.S.
281) when faced with such a breach. An exclusionary rule contended for under the Bill of
Rights has already been rejected in Hogan v. R. (1974), 9 N.S.R. (2d) 145, 18 C.C.C. (2d) 65
(S.C.C.). The American Bill ofRights does not contain a remedial provision either; however,
American courts faced with infringements of constitutional rights, have developed exclusionary
rules of evidence: see Boyd v. United States, 116 U.S. 616 (1886); Mapp v. Ohio, 367 U.S. 643
(1961); Miranda v. State ofArizona, 384 U.S. 436 (1966).
70R. v. Manninen, [1987] 1 S.C.R. 1233 at 1244-46, 34 C.C.C. (3d) 385, 58 C.R. (3d) 97.
71E.G. Ewaschuk, “The Charter An Overview and Remedies” (1982) 26 C.R. (3d) 54 at 73.
72Gingras, supra, note 4 at 16-30.
73Collins, supra, note 44 at 275-80.
74Ibid. at 287-88.
1988]
CHRONIQUE DE JURISPRUDENCE
trapment, he held that it must be “so shocking and outrageous as to bring
the administration ofjustice into disrepute.’ 75 On the facts, Estey J. found
that the community would view the police actions as “shocking and out-
rageous” and held that “such conduct is clearly contrary to the proper prin-
ciples upon which justice must be done by the courts”. 76 Prosecution, in
entrapment cases, he indicated, “would bring the administration of justice
into disrepute”. 77
With this in mind, an examination of police entrapment, “having regard
to all the circumstances”, would generally disclose its willingness, lack of
urgency, unfair prejudice to the accused, the seriousness of the Charter vi-
olation and the potential unreliability of evidence, particularly where in-
formers are involved. An examination of this conduct would further
disclose, in many cases, that the offence instigated was not so serious, harm-
ful to others or*immediate that it called for drastic measures interfering
with human dignity and rights, and resulting in exposing the public and the
administration of justice to ignoble behaviour by an arm of the criminal
justice system. 78
If a Charter right is violated as a result of entrapment, it seems unlikely
that the courts would permit the state to benefit from its own misconduct
and thereby taint the administration of justice. Otherwise, judicial condon-
ation of such conduct would imply judicial ratification for “if the court
should turn a blind eye to this kind of conduct, then the police may assume
that they have the court’s tacit approval of it”.7 9 And as Mr Justice Stewart
of the United States Supreme Court reasoned:
Even less should the federal courts be accomplices in the willful disobedience
of a Constitution they are sworn to uphold.80
Perhaps Mr Justice Brandeis best summed up the public’s concerns, as
follows:
Decency, security, and liberty alike demand that government officials shall
be subjected to the same rules of conduct that are commands to the citizen.
In a government of laws, existence of the government will be imperilled if it
fails to observe the law scrupulously. Our Government is the potent, the om-
nipresent teacher. For good or for ill, it teaches the whole people by its example.
75Amato, supra, note 5 at 446.
76Ibid. at 464.
77Ibid. at 445. Similar terms were used in other pre-Charter cases: see Bonnar, supra, note
5 at 64; Haukness, supra, note 4 at 442; Biddulph, supra, note 5; R. v. Meuckon, [1986] 1
W.C.B. (2d) 174 (B.C. Co. Ct).
78Collins, supra, note 44 at 280-88.
79R. v. Duguay (1985), 18 C.C.C. (3d) 289 at 301,45 C.R. (3d) 140 (Ont. C.A.) per Mackinnon
A.C.J.O. See also Collins, ibid. at 280-81.
80Elkins v. United States, 364 U.S. 206 at 223 (1960).
McGILL LAW JOURNAL
[Vol. 33
Crime is contagious. If the Government becomes a lawbreaker, it breeds con-
tempt for law; it invites every man to become a law unto himself; it invites
anarchy. To declare that in the administration of the criminal law the end
justifies the means –
to declare that the Government may commit crimes in
order to secure the conviction of a private criminal – would bring terrible
retribution. Against that pernicious doctrine this court should resolutely set its
face.8′
An entrapment “defence” based on the Charter would adhere closely
to an objective approach with an overriding concern for the effect of the
police conduct on individual rights and the administration of justice. Cul-
pability, whether it be manifested as predisposition in entrapment cases or
knowledge and intention in search and seizure cases, is not a determining
factor in establishing a Charter breach or justifying a Charter remedy. How-
ever, in dealing with predisposed persons, police intrusion may be minimal,
amounting only to mere solicitation, and a breach of Charter rights, as a
result of entrapment, would not arise in such cases.
Where the state has artificially propagated crime by entrapment prac-
tices, it is urged that an entrapped accused must have a legal defence. The
availability of such a defence should not cause alarm in the community
since, as American studies have shown, 82 it would only succeed in rare
cases. 83
The three potential bases to challenge police entrapment may overlap84
to some extent, in particular, abuse of process and the Charter, with their
focus on police conduct and its effect on the administration of justice as
well as their common remedy, a judicial stay of proceedings.
These three avenues need not necessarily be exclusive. The exclusion
of evidence pursuant to subsection 24(2) of the Charter may find application
in circumstances where a stay of proceedings in virtue of the Charter or the
common law (abuse of process) would not be appropriate. However, the
results would be similar, because, as pointed out earlier, such an exclusion
of evidence would lead to an acquittal, unless the Crown had other evidence.
3 Am. J. Crim. Law 165 at 188-90.
8tOlmstead v. United States, 277 U.S. 438 at 485 (1928).
82Park, supra, note 19 at 267-68 n. 339; B.A. Hardy, “The Traps of Entrapment” (1974-75)
83Furthermore, as a matter of public interest and much like the defence of compulsion under
s. 17 of the Criminal Code, any defence of entrapment would not apply to crimes of violence:
see Ouimet Committee, supra, note 8 at 79-80; Amato, supra, note 5; Sorrells, supra, note 9
at 451.
“McCann, supra, note 4; Meuckon, supra, note 77; Jeanrie, supra, note 4; R. v. St. Pierre
(18 December 1986), (Ont. Dist. Ct) [unreported]; Jewitt (B.C.C.A.), supra, note 9, per An-
derson J.A. (dissenting in part); Uba, supra, note 65; Mack (B.C.C.A.), supra, note 1.
1988]
COMMENT
If the courts did not find the police conduct to be so outrageous as to
be an abuse of process or a breach of Charter rights justifying a remedy,
could not an accused plead lack of predisposition as part of an independent
and subjective defence of entrapment? Such a traditional, substantive de-
fence could remain for clear cases involving nondisposed persons. In this
way, collective and individual interests would be safeguarded and the en-
trapment “defence” would become a multidimensional defence tool bene-
fitting from the advantages of the subjective and objective views while
avoiding the pitfalls of each.
It is not surprising that with three potential legal bases for a defence
of entrapment and with no clear direction from the Supreme Court of Ca-
nada, this area of the law has been interpreted and applied inconsistently
throughout the country. The time is ripe for a definitive stand and the
Supreme Court 5 should meet the challenge in Mack and Showman.
85Note that the composition of the Supreme Court of Canada has changed since Kirzner and
Amato.
