The recent Academy Award-nominated movie “American Hustle” was a take on the FBI’s “Abscam” operation in the late-1970s, where undercover agents and those working with them caught a number of U.S. elected officials taking what they thought were bribes. Whether called a “sting” or “set-up”, law enforcement officials on both sides of the border regularly engage in activities where they actively create or participate in scenarios designed to get a suspect to commit a criminal act
When individuals are charged with offences involving such operations, they may assert that they were a victim of “entrapment” and as such the charges or conviction should be set aside. However, not all, and in fact not most, law enforcement actions in this vein will be deemed to be entrapment.
Entrapment Defined
Entrapment occurs when a police officer or other government agent deceives a person into committing a crime that he or she had no intention of committing. It is that intention or lack thereof and whether the officers had a “reasonable suspicion” that the person is already engaged in criminal activity that can be determinative as to whether entrapment has occurred. As the Supreme Court of Canada wrote in their 1988 decision R. v. Mack, the rationale for requiring reasonable suspicion is “because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis.”
Opportunity v. Inducement
In the Mack case, the Court held that there are two situations in which the defence of entrapment becomes available:
- Authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that they’re already engaged in criminal activity or pursuant to a bona fide inquiry; or
- Although having a reasonable suspicion or course of bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
When the second circumstance is at issue, the court must determine whether the police or authorities overstepped their bounds by inducing the accused to commit the offence. As set forth by the Supreme Court in Mack, some factors a court may consider in evaluating whether the conduct constituted inducement include:
- Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
- The persistence and number of attempts made by the police before the accused agreed to commit the offence;
- The type of inducement used by the police, including deceit, fraud, trickery or reward;
- The timing of the police conduct, in particular whether the police instigated the offence or become involved in ongoing criminal activity;
- Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
- Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
If the accused and their criminal defence lawyer demonstrate one of the foregoing circumstances was present, they may be establish entrapment. If they do, the proceedings will be stayed, which is similar to an acquittal.
It is important to note that courts have repeatedly said that each case must be evaluated on its own merits, and that police must be given sufficient leeway to conduct their investigations, including the use of undercover operations. Simply saying that the police were in on the criminal act does not get you out of trouble. It is important that you meet with a criminal defence attorney if you’ve been charged with a crime involving such tactics to determine whether or not the authorities overstepped their bounds.
Ottawa Criminal Defence Firm Engel & Associates Defends Against Even The Most Complicated Charges
Criminal lawyers Bruce Engel and Elena Davies have represented individuals and businesses charged with hundreds of different offences throughout Canada for more than two decades. From the start of a criminal investigation to the close of a trial, we will take a balanced and forceful approach to your defence. We have the experience and know-how to effectively navigate the constantly changing justice system in Canada.
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