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The topic for this post is “entrapment”.  Though entrapment is a rarely used defence in Canadian criminal justice, it is nevertheless one that all Alberta criminal defence lawyers should have at their disposal.

In R. v. Mack, [1988] 2 S.C.R. 903 the Supreme Court of Canada defined entrapment as follows:

Entrapment occurs when (a) 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, or, (b) 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. It is essential [page904] that the factors relied on by a court relate to the underlying reasons for the recognition of the doctrine in the first place.

Where police are not acting pursuant to a bona fide inquiry but provide a random opportunity for a person to commit an offence, they are said to be “random virtue testing”.  The abuse of random virtue testing is that otherwise lawful persons might be caught committing a criminal offence. For example, a police officer who leaves drugs unattended on a park bench for a random bystander to pickup for the purpose of an arrest for drug possession is random virtue testing. This is likely entrapment.

what is random virtue testing?

R. v. Barnes, [1991] S.C.J. No. 17 defined “random virtue testing”:

Random virtue-testing only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that: (a) the person is already engaged in the particular criminal activity, or (b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.

Acting pursuant to a bona fide inquiry raises a host of more subtle issues, to be determined on a case-by-case basis. Barnes supra, addressed the issue of “location”. In this case the police apparently had reasonable and probable grounds to believe that the area where the investigation occurred was a hive for illegal drug trafficking activity.  Undercover officers focused their investigation on the Granville Mall in Vancouver. The issue in Barnes was not so much the police grounds for conducting the investigation in the Granville Mall, but the manner in which the undercover officer persisted in attempting to persuade the accused to sell drugs.  The Supreme Court held that the police conduct was justified.

when entrapment applies

Important to the defence of entrapment is that it is only to be considered after the guilt of the accused is determined. If the accused is found “not guilty” as a result of a failure by the Crown to prove the essential elements of the offence or for other Constitutional reasons, there is no need for an entrapment inquiry. Therefore, the defence of entrapment only arises after the Crown has proven the guilt of the accused.

The onus to prove “entrapment” then shifts to the accused, who must demonstrate on the balance of probabilities that the entrapment occurred.  Entrapment is an abuse of process. As the Supreme Court held in Mack supra:

Once the accused has demonstrated that the strategy used by the police goes beyond acceptable limits, a judicial condonation of the prosecution would by definition offend the community. It is not necessary to go further and ask whether the demonstrated entrapment would "shock" the community, since the accused has already shown that the administration of justice has been brought into disrepute.

If proven, the appropriate remedy for entrapment is a judicial stay of proceedings. 

Experienced Calgary criminal lawyers understand that entrapment is rare and when it arises can be a very difficult defence.  The abuse of process must be manifest.

If you are in the market for a proven calgary criminal lawyer

David Chow has been full spectrum Calgary defence lawyer since 2005. He is an experienced Calgary drug lawyer who has run the gamut of criminal law defences, including entrapment.  If you have been charged with any criminal offence, call David Chow for a free initial telephone consultation.

When hiring a criminal defence lawyer it is incumbent on you to do your due diligence. Not every defence lawyer is the same; not all defence lawyers possess the same skills and experience. Though any criminal lawyer in Calgary or elsewhere can advertise, not every defence lawyer can properly defend a case. The Internet is a valuable source for information but it should be secondary to good common sense. In Calgary, criminal lawyers pay for adds so they appear at the top of a Google Search.  Those who are paying for your business may be very good at attracting your retainer, but may not be the best at defending your case or your best interests.  Be careful and choose wisely. This advice applies to all lawyer advertising, including this website.


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