The Greater Toronto Area criminal defence lawyers at Mass Tsang rely on numerous different strategies to secure acquittals, dismissals, and other favourable outcomes for clients facing criminal charges. Much of our defence work on behalf of clients is designed to secure a positive resolution without the need to go to trial. Suppose we can poke enough holes in the Crown’s evidence pre-trial. In that case, they might be willing to withdraw the charges or at least negotiate diversion, reduced charges or other favourable resolution. Likewise, if we can raise mitigating factors about the case and/or defendant.
Crown prosecutors are not out to throw the proverbial book at every alleged criminal perpetrator and are often open to finding legal solutions that can avoid the resources needed to hold a trial. That said, when we do have to defend our clients at trial, we turn to tried and true strategies designed to help establish our clients’ innocence or raise enough reasonable doubt about the evidence to avoid a conviction. In addition to challenging evidence and other elements of the Crown’s case, we sometimes turn to long-standing alternative strategies when warranted. We highlighted two of these defence strategies — “ abandonment” and “ consent” — in recent blogs, and now we are going to examine the “entrapment” defence.
Criminal defence trial lawyers can raise an entrapment defence by filing an application against the abuse of process when they believe they can prove that police actions were in some part responsible for the crime. The entrapment defence application is usually filed after the defendant has been found guilty but before sentencing. Based on common law, the entrapment defence has been firmly established in Canada through various high court decisions, and the onus is on the defence to prove that the police used entrapment.
In general, a defendant can claim entrapment based on opportunity or inducement. Opportunity-based entrapment is when police provide a person with the opportunity to commit the crime absent reasonable suspicion that the person was already engaged with the specific criminal activity. With inducement-based entrapment, police encourage a person’s illegal actions through deceit, fraud, or undue persuasion. Even if police have a reasonable suspicion that the person was involved in the related criminal activity, they are not allowed to induce them to commit the crime. In some cases, police are challenged for using both forms of entrapment together.
The determination of “reasonable suspicion” is often the linchpin of whether an entrapment defence might work. Under the law, reasonable suspicion gives police the legal right to provide a suspect with the opportunity to commit a crime relevant to the suspicion. Acting without that reasonable suspicion represents a potential Charter Rights violation of privacy, as it suggests that police could randomly target people. Additionally, by acting without reasonable suspicion, police who create an opportunity for criminal activity might be creating a crime that otherwise may have never happened.
While entrapment by inducement does not require the reasonable suspicion provision, without distinct evidence, it is difficult to prove that the police engaged in deceit or fraud to encourage the commission of the crime. Getting the court to base the entrapment on undue persuasion is an even tougher bar to cross.
Canadian courts have generally held that the threshold for police establishing a reasonable suspicion can be lower in higher crime areas. However, the subjective nature of what constitutes “reasonable” often arises in appeals of failed entrapment applications. Most recently, in R v. Ahmad (2020 SCC 11), the Supreme Court of Canada ruled that police cannot rely solely on a tip from an unverified source to establish their reasonable suspicion. In determining that police set up a drug sting based solely on that unverified tip, the high court ruled that defendant’s entrapment defence was applicable. In their ruling, justices indicated that such tips need corroboration before police can set up a sting.
Because elements of an entrapment defence are often subjective, courts assess several factors to determine whether someone was entrapped into committing a crime. Among factors a court will examine with an entrapment application are:
Court precedents and other elements of the law put three specific limitations on the use of the entrapment defence. Entrapment claims cannot be made in criminal offences involving acts of violence, physical harm, or killing. Entrapment can also not be raised in cases that involve extradition to a foreign country. Last, only law enforcement officers can be accused of using entrapment — from a legal standpoint, entrapment does not apply when private individuals induce criminal activity or provide the opportunity to commit the crime.
Along with these limitations, Ontario criminal defence lawyers generally only turn to the entrapment defence when there is distinct evidence of police misconduct. The subjective nature of “reasonable suspicion” makes entrapment by opportunity challenging to prove, as does its role in proving “inducement” that lacks outright deceit.
While the lawyers of Mass Tsang rarely turn to the entrapment defence when developing defence strategies for their clients, it could certainly come into play if warranted by the client’s evidence. Mass Tsang lawyers fully assess any and all elements of a criminal case that could help the most effective defence for each of our Greater Toronto Area clients. If you or a loved one is facing criminal charges, contact the expert lawyers at Mass Tsang
