In criminal law, the principle of entrapment is invoked when there is reason to believe a law enforcement officer encouraged or induced an individual into committing a crime they would otherwise not have committed or would have been unlikely to commit.
What Is Entrapment?
Entrapment is a legal remedy to criminal charges when the police give an individual the opportunity to commit a crime or induce a person to do so, meaning that without this encouragement, they would likely not have committed a crime. The significance of this cannot be overstated.
The police commit entrapment when they provide an individual with the opportunity to commit a criminal offence without reasonable previous suspicion that the person has been involved in criminal activity or if they actively induce the individual to commit a criminal offence.
The background of the entrapment principle is that if the police engage in this type of misconduct, it threatens the rule of law and undermines society’s sense of justice, leading to an abuse of the legal process.
If law enforcement has been proven to have used entrapment to charge an individual with a criminal offence, the remedy is a stay of proceedings. This means that the case against the accused cannot proceed, no guilty conviction may be entered against the individual, and the incident will not appear on the criminal record, thus ending the prosecution of the case.
The Supreme Court of Canada has established that entrapment occurs in two ways:
- 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,
- When the police have reasonable suspicion or act in the course of a good faith (or bona fide) inquiry, they go beyond providing an opportunity and actually induce the commission of an offence.
Inducement-based vs Opportunity-based Entrapment
There are two different types of entrapment: inducement-based and opportunity-based.
In legal terms, opportunity-based entrapment arises when law enforcement offers an individual the chance to commit a crime without possessing reasonable suspicion that the individual was already involved in said criminal activity. On the other hand, inducement-based entrapment occurs when law enforcement encourages unlawful behaviour through deceptive tactics such as deceit, fraud, or undue persuasion.
Even if reasonable suspicion exists that an individual may be connected to criminal activity, law enforcement is prohibited from actively inducing the individual to commit the crime in question. There even can be instances where the police might be challenged for both forms of entrapment simultaneously.
What is Reasonable Suspicion?
The concept of “reasonable suspicion” is critical in determining the viability of an entrapment defence. Legally, if law enforcement has reasonable suspicion the individual already was involved in the criminal activity, they are within their rights to provide an opportunity for a suspect to engage in criminal behaviour relevant to the suspicion. However, acting without reasonable suspicion, often called a “test of virtue,” raises concerns regarding potential privacy rights violations under the Charter of Rights and Freedoms. Additionally, acting without reasonable suspicion may lead to the creation of a crime that might not have occurred otherwise.
Unlike opportunity-based entrapment, inducement-based entrapment does not hinge on the provision of reasonable suspicion. Nonetheless, proving that law enforcement utilized deceit or fraud to induce criminal behaviour can be challenging without concrete evidence. Establishing undue persuasion as the basis for entrapment is even more difficult.
“Reasonable suspicion” is one of the significant terms regarding entrapment. It is essential to make the difference between reasonable suspicion and reasonable grounds. While both standards sound similar, reasonable suspicion is less demanding. It does not rule out the possibility of innocent conduct. Still, while it is based on a lesser probability than reasonable grounds, a hunch or feeling is not enough without a level of evidence.
For example, police cannot act upon an unverified tip to claim reasonable suspicion. They must corroborate this information before setting up a sting operation or providing an individual with an opportunity to commit a criminal offence.
The importance of corroboration (or lack thereof) to a claim of entrapment was illustrated by the Supreme Court of Canada in the decisions of R. v. Ahmad, R. v. Williams. In each case, the police received an unsubstantiated tip that their phone numbers were linked to alleged drug dealing.
In the case of Mr. Ahmad, the Supreme Court ruled that there was no entrapment. When law enforcement called his number, the police initiated a conversation about the purchase of drugs, and Mr. Ahmad asked, “What do you need?” This was regarded as sufficient corroboration of the tip and indicated reasonable suspicion.
In the case of Mr. Williams, on the other hand, the law enforcement officer immediately asked to purchase drugs without allowing Mr. Williams to engage and corroborate the tip that Mr. Williams was involved in drug dealing over the phone. The court ruled that this constituted entrapment.
What is a Bona Fide Inquiry?
A bona fide inquiry occurs when law enforcement, believing on reasonable suspicion that an offence is already taking place, provides the accused individual the opportunity to continue. However, even with such an inquiry in place, the police cannot push or manipulate individuals into committing crimes, which would then be inducement-based entrapment.
Hiring a Criminal Lawyer for Entrapment Defence
Do you believe you or someone you know has been the victim of entrapment? Contact Fedorowicz Law for legal advice. Richard Fedorowicz has over 20 years of experience in criminal defence with a proven track record of success. He will fully assess any elements of a criminal case that could help the most effective defence for each of his Greater Toronto Area clients.
Call Fedorowicz Law today at 249-266-4222 or fill out our convenient online form to learn how we can help you with your voyeurism defence in Toronto!