Entrapment: Opportunity to Commit a Crime

The entrapment defence is available when either:

1) “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

2) “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.”

R. v. Mack, 1988 CanLII 24 (SCC), at pp. 964-65

The accused must establish the entrapment defence on a balance of probabilities. 

Mack, at p. 975.

Whatever the mode of trial, the judge ought to consider entrapment only after a finding of guilt.

R. v. Imoro, 2010 ONCA 122, at para. 24.

In considering entrapment, the court looks at the actions of the police, not of the accused.  One must guard against allowing the nature of the offence to distort the application of the entrapment doctrine. Its application does not depend on the nature of the offence, or its seriousness, or the fact that the offence may be difficult to investigate. Culpability is not the basis for the application of the doctrine.

R. v. Ghotra, 2020 ONCA 373, at para. 69 (per Nordheimer J.A., in dissent, but not on this issue).

 

A Quick Summary of Entrapment

Police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity.  The exception to this rule where police are undertaking “a bona fide” investigation directed at an area where it is reasonably suspected that criminal activity is occurring.

Where police neither have reasonable suspicion of an individual already engaged in crime, nor are investigating a location that is reasonably suspected of being a hub of criminal activity, presenting an opportunity to commit a particular crime amounts to random virtue testing, and is not permitted.

Police cannot go beyond providing an opportunity and induce the commission of an offence, even where they have reasonable suspicion. 

  

Providing an “Opportunity to Commit an Offence”

Much of the entrapment case law focuses on the distinction between presenting an individual with an opportunity to commit an offence, and merely taking a step in investigating criminal activity. The former is entrapment unless the police first have reasonable suspicion. The latter is permissible police conduct. The distinction between the two will sometimes be difficult to draw.

R. v. Ghotra, 2020 ONCA 373, at para. 21;

R. v. Bayat, 2011 ONCA 778, at para. 19.

The case law, however, has specified a narrow conception of “providing an opportunity,” with the analysis often focusing on whether the police or the accused took the initiative in the interaction and when.

R. v. Bayat, 2011 ONCA 778; 

R. v. Imoro, 2010 ONCA 122;

 R. v. Swan, 2009 BCCA 142.

Providing an opportunity is not established by but-for causation, that is for instance, but for the police merely posing as a potential victim online, the accused would not have the opportunity to commit the offence.

R. v. Ghotra, 2020 ONCA 373, at para. 29

In  R. v. Ahmad, 2020 SCC 11 (CanLII), at para. 64 the Supreme Court held that in order to allow the police flexibility to investigate crime, an officer’s actions must be “sufficiently proximate to conduct that would satisfy the elements of the offence” in order to constitute an opportunity:

The inquiry, then, is properly directed to how close the police conduct is to the commission of an offence. To allow the police sufficient flexibility to investigate crime, an officer’s action — to constitute an offer of an opportunity to commit a crime — must therefore be sufficiently proximate to conduct that would satisfy the elements of the offence. For example, in Bayat, Rosenberg J.A. concluded that beginning an online conversation with a target was not an opportunity to commit the offence of child luring. He likened the first contact to a “knock on a door” (para. 19). In his view, that initial contact was too remote from the commission of the offence to constitute the provision of an opportunity to commit an offence. In the particular context of drug trafficking, we would adopt the conclusion reached by Trotter J. at para. 27 of the Williams stay decision: an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering “yes.”

Where the police conduct is nothing other than placing a potential victim in an accused’s line of vision, and where the accused is given no reason to believe that the victim would be a willing participant in the offence committed, the police have not provided an opportunity to commit an offence.

R. v. Ghotra, 2020 ONCA 373, at para. 31: which involved a police officer posing as a 14-year-old girl in an online chat room.  The chat room was not devoted to sexual interests or sexual activities. A majority of the ONCA held that the appellant had not been entrapped, in part, having turned the conversation to sexual inquiries. 

 

    Written by Stuart O’Connell (Barrister/Solicitor)