What is Entrapment?

Entrapment occurs when authorities “induce” a defendant to commit a crime, without reasonable suspicion–meaning that without this “encouragement,” you may not have committed the crime.

What is Entrapment?

Entrapment is a legal defence to a criminal charge when an accused person is induced by the police to commit a crime they may not have committed otherwise. If the accused can establish a case for entrapment on a balance of probabilities, then the remedy for a finding of entrapment is a stay of proceedings. While one may be found guilty of the actual offence, this defence avoids a conviction from being registered and ultimately, ends the prosecution of the case. 

Entrapment is a potential defence to criminal charges when it can be established that the police or their agent originated the idea of the crime and induced the accused to engage in it.

The Supreme Court of Canada has established that entrapment occurs in two ways:

1. The police provide an opportunity for someone to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity; and,
2. When the police have a reasonable suspicion or acting in the course of a good faith inquiry, the police go beyond providing an opportunity and actually induce the commission of an offence.

Entrapment is an Abuse of the Legal Process

If a criminal defence lawyer believes they can prove that police actions were in some part responsible for the committing of a crime, they can raise an entrapment defence by filing an application against the abuse of process. Usually, an entrapment defence application is filed after the defendant has been found guilty but before sentencing. There have been several high court decisions in Canada to establish the entrapment defence firmly. The onus to prove that the police used entrapment is on the defence.

There are two types of entrapment: Opportunity- and inducement-based. Opportunity-based entrapment occurs when the police provide a person with the opportunity to commit a crime without reasonable suspicion that the person was already engaged in the specific criminal activity in question. Inducement-based entrapment occurs when the police encourage a person’s illegal actions through deceit, fraud or undue persuasion.

Even if there is a reasonable suspicion that the person was involved in the criminal activity, they cannot induce them to commit the actual crime. Sometimes, the police may be challenged for both forms of entrapment together.

One of the key phrases is “reasonable suspicion.” Determination is often crucial in whether an entrapment defence might work. Under the law, if police have a reasonable suspicion, they have the legal right to provide a suspect with the opportunity to commit a crime relevant to the suspicion. If they act without reasonable suspicion, also known as a “test of virtue,” it is a potential Charter Rights violation of privacy, as it suggests the police could randomly target people. In a similar direction, if the police act without reasonable suspicion, they may be creating a crime that otherwise may never have happened.

Inducement-based entrapment does not require the provision of reasonable suspicion. However, without distinct evidence, it is difficult to prove that the police used deceit or fraud to encourage the commission of the crime. Getting the Court to base the entrapment on undue persuasion is even more challenging.

Reasonable Suspicion

The reasonable suspicion standard has been described as not unduly onerous and is considered a relatively low threshold. In comparison to the reasonable grounds standard, it is less demanding. Put differently, the reasonable grounds to suspect standard is a minimal level of belief which does not rule out possibility of innocent conduct or other reasonable possibilities.  While a reasonable suspicion involves lesser probability than reasonable and probable grounds, it cannot be limited to a hunch or feeling without extrinsic evidence.

Generally, Canadian courts have held that the police’s threshold for establishing a reasonable suspicion can be lower in higher crime areas. However, the subjective nature of what constitutes “reasonable” often comes up in appeals of failed entrapment applications. In one of the most recent rulings, in R v. Ahmad (2020 SCC 11), the Supreme Court in Canada ruled that police cannot rely only on a tip from an unverified source to establish reasonable suspicion. The High Court ruled that the defendant’s entrapment defence was applicable after determining that the police set up a drug sting solely based on this unverified tip. The Court indicated that tips require corroboration before a sting can be set up.

Factors Canadian Courts Assess to Determine Entrapment

Often, elements of an entrapment defence are subjective, requiring courts to assess several factors to determine if entrapment to commit a crime occurred. Some of the factors a court will examine with an entrapment application are:

• Potential evidence of deceit, fraud, threats, or promise of a reward.
• How aggressive the police were in their attempts to get the defendant to commit or agree to commit the crime.
• Type of crime and whether police could have used other tactics to fight it.
• The level of police involvement in the criminal activity compared to the defendant’s.
• Whether the police may have exploited the defendant’s potential vulnerabilities, such as addiction, state of mind or mental handicap.
• Whether an average person could be induced similarly to commit the crime.
• Timing issues about the police investigation and when the defendant became involved.
• Whether the police committed any illegal acts during their investigation or otherwise breached Charter Rights.

Limitations to the Entrapment Defence

There are three specific exclusions to the entrapment defence. It cannot be applied in criminal offences involving violence, physical harm or killing. It can also not be raised in cases involving extradition to a foreign country. It is also crucial to note that only law enforcement officers can be accused of using entrapment. Legally, if a private individual induces any criminal activity or provides the opportunity to commit a crime, it cannot be considered entrapment.