SUPREME COURT OF CANADA
Amato v. The Queen, [1982] 2 S.C.R. 418
Date: 1982-08-09
Victor Amato Appellant;
and
Her Majesty The Queen Respondent.
File No.: 16053.
1981: May 20; 1982: August 9.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Defences — Entrapment — Trafficking conviction — Conviction resulting from incidents instigated by undercover officer — Whether or not defence of entrapment existed and applicable — Criminal Code, R.S.C. 1970, c. C-34, s. 7(3).
This appeal was from appellant's conviction of trafficking in cocaine. An undercover policeman and an informer had repeatedly and persistently requested drugs from appellant, at home and at work, over the course of two months despite his lack of interest and despite the absence of no reasonable cause to believe him to be involved in the illicit drug trade. A certain friendship developed during that time, and eventually, appellant reluctantly put the two men in contact with a supplier. The charges laid related to one occasion where cocaine passed from the supplier, through appellant to the undercover officer and to a second occasion where the drugs passed directly from the supplier to the officer following an implied threat of violence made to appellant. Arguments as to whether the "defence of entrapment" existed, and if so, as to whether it applied here, were considered at trial and on appeal.
Held (Laskin C.J. and Estey, McIntyre and Lamer JJ. dissenting): The appeal should be dismissed.
Per Martland, Dickson, Beetz and Chouinard JJ.: The defence of entrapment, assuming it to be available under Canadian law, did not arise on the facts of this case that was the unanimous conclusion of the four British Columbia judges who had already considered the matter. This Court should not retry the case and arrive at different findings.
[page 419]
Per Ritchie J.: The question of entrapment can only enter into the determination of an accused's guilt or innocence where police tactics are such as to leave no room for the formation of independent criminal intent by the accused. The mere fact that the crime was committed at the "solicitation" of an agent provocateur does not, standing alone, support a defence of entrapment. The defence of entrapment might have been supported here if the accused had been coerced to cooperate with the police plan under the threat of violence.
Per Laskin C.J. and Estey, McIntyre and Lamer JJ., dissenting: The doctrine of entrapment is rooted in the common law's recognition of the need for some element of judicial control and should be recognized and applied here. Section 7(3) of the Criminal Code allows the criminal courts to adopt common law defences; those defences did not crystallize when the statute was enacted. Indeed, as entrapment may not technically be a defence in that it results in a stay of prosecution rather than an acquittal, reliance on s. 7(3) might be unnecessary. The doctrine's principal characteristics are: 1) that the police instigate an offence and through their conduct ensnare the accused into committing it; 2) that the scheme be to gain evidence for the prosecution of the accused for the instigated crime; and 3) that the crime be induced through deceit, fraud, trickery, reward or other means. The scheme must be in all circumstances so shocking and outrageous as to bring the administration of justice into disrepute. The doctrine is not applicable where the true purpose of the police initiative is to put the enforcement officers in a position to obtain evidence of an offence when committed, absent the other circumstances noted. Here, this shocking and outrageous enterprise was earmarked with all the trappings of entrapment.
[R. v. Mealey and Sheridan (1974), 60 Crim. App. R. 59; Sorrells v. United States (1932), 287 U.S. 435; United States v. Russell (1973), 411 U.S. 423; Kirzner v. The Queen, [1978] 2 S.C.R. 487; Lemieux v. The Queen, [1967] S.C.R. 492, considered; Sherman v. United States (1958), 356 U.S. 369; R. v. Ormerod, [1969] 2 O.R. 230, referred to.]
APPEAL from a judgment of the British Columbia Court of Appeal (1979), 51 C.C.C. (2d) 401, 12 C.R. (3d) 386, dismissing an appeal from a conviction of trafficking in cocaine. Appeal dismissed,
[page 420]
Laskin C.J.. and Estey, McIntyre and Lamer JJ. dissenting.
Sidney B. Simons, for the appellant.
John Scollin, Q.C., and Cory Stolte, for the respondent.
The reasons of Laskin C.J. and Estey, McIntyre and Lamer JJ. were delivered by
ESTEY J. (dissenting)—The appellant was charged with two counts of trafficking in cocaine on or about October 3 and October 13, 1977. At his trial before McGivern P.C.J. the sale of the cocaine to an R.C.M.P. undercover agent was admitted. The defence raised was entrapment.
In June of 1977 the accused was employed as a hairdresser in North Vancouver. He was approached by the manager of the shop, one André, who said that he had a friend who was Iooking for a gram of cocaine. Amato responded that he did not think he knew of anyone from whom it could be obtained. Amato's evidence, which I shall now summarize, is that he had never used cocaine nor trafficked in it. Two days later, André's friend, who identified himself as Don, called Amato at work. Amato told Don that he didn't really know where he could obtain cocaine but as Don was a friend of André he would keep his ears open. Shortly thereafter Amato switched places of employment to another hairdressing salon. Don called him there repeating his earlier request and saying that he had obtained his number from André.
Don was in fact Don Langvin, a paid police informer whose job was to introduce traffickers to the police. He is himself known as a trafficker who was granted immunity from prosecution in relation to an incident where he was found in possession of three ounces of heroin. He was also paid $200 a week and received a lump sum of $9,500 to assist in relocating at the end of the operation. Over the period during which he was involved with Amato, Langvin did not carry a recording device or make any written notes or reports. He reported verbally
[page 421]
to his "handler" who for most of the time was Constable Godwin of the R.C.M.P. Godwin has no notes nor any recollection of reports made to him by Langvin of his dealings with Amato prior to October 3 some four months after Langvin's first contact with Amato. Godwin and Langvin were meeting three or four times per week over this period. In response to the trial judge's repeated inquiries, the Crown stated that Langvin could not be located to testify. Here I have summarized and inserted in the course of Amato's evidence some testimony given by Godwin.
When Langvin called Amato at his new place of work back in June he was told by Amato that André was mistaken if he thought he could be counted on to obtain cocaine. Langvin responded that he did not know many people in North Vancouver, that he had to go through André, that he was very desperate to "score" a gram and that he had been looking for some time without success. Langvin continued to call Amato through the summer. Between the third week in June and early September he called at least fifteen to twenty times, mostly at work. In August he came to Amato's work place and asked him to join him for a coffee and to look at his car. Langvin owned an antique Rover which interested Amato because he thought Langvin had connections and Amato claims he hoped to own one some day. Amato describes the relationship between him and Langvin at that time in his examination-in-chief at trial:
Q. And did you have any intention of obtaining cocaine for him or selling it to him?
A. Not at all. I was just trying to be a friend with him because he—he seemed like a very clean-cut kid and he-he just seemed like a person that I could probably benefit from because he had deals on cars and things like that, but he seemed like an all 'round nice guy. To me it didn't—didn't dawn on me.
In the first part of September Langvin visited twice at Amato's apartment to discuss a party which was being held at the end of the month. Langvin had some friends coming from California
[page 422]
and said they wanted some cocaine for the party. Amato said he would ask amongst his friends to see if he could "turn him on to someone". He asked some hairdresser friends but they could not come up with anything.
In mid-August Amato called June Lee to ask if she could help to obtain some cocaine. She is an ex-girlfriend with whom Amato had lived for three years but they had broken off their relationship two and a half years previous to this time. Amato says he turned to June Lee because her brother was involved with heroin. Amato wanted her to contact her brother's girlfriend as he believed her to have some contact in the drug business. June Lee wasn't interested but Amato called her back three or four times over the next month. She did not want to "stick her neck out". By mid-September June Lee changed her mind and arrangements were made to sell one gram of cocaine to Langvin for $100. Amato met Langvin in a parking lot, took the $100, went to June Lee's place and returned with the cocaine for Langvin. Amato received no money or cocaine from the transaction. This first transaction was in September.
When Amato delivered the first gram to Langvin the latter raised the possibility of getting a half ounce for his friends who were coming from California for the party. Amato refused but Langvin called him the next day at work. Amato said he had done it only as a favour and told Langvin he was scared by the whole thing. Langvin continued to call Amato daily at the shop. Amato refused repeatedly. On October 3 Langvin came to Amato's shop where they went out behind it and after talking about cars Langvin told Amato that the friends from California had arrived. Amato was asked if he could do everything in his power to get some more cocaine. He called June Lee who refused and hung up. He called her back and pressed her to do "a last little favour". After a few calls she agreed to provide a half ounce of cocaine for $1,100. Langvin and Amato were to meet in a parking lot but when Langvin showed up he had his friend Gary (who was in fact Godwin) with him. Amato refused to go through with the deal at first but he was reassured that Godwin was "cool"
[page 423]
and that he was Langvin's best friend. Godwin and Langvin gave Amato $1,100 and he went off to meet June Lee who went somewhere else to get the cocaine. Amato returned with it and Godwin began discussing quality and quantity and Amato says he was "coming on very strong, like a dealer". Amato says he told Godwin and Langvin:
... 'Look I am not a dealer.' ... 'As far as I'm concerned l'm not doing this voluntarily. I'm into this predicament because I've been pushed this far and it's not—it's not—it's not going to happen. You know, as soon as this is over I just don't want to see any of the both of yous again.'
As Amato left the car he said to Godwin and Langvin, "Forget it. This won't happen again". Langvin wasn't heard from again. Godwin called two days later and congratulated Amato on how smoothly it had gone. Godwin called a few more times at the shop saying that he wanted to obtain three ounces of cocaine, offering a price of $6,000. Amato told him to forget it and Godwin replied, "You just tell your people that". Godwin continued to call at work but Amato refused the calls saying he was too busy. On October 12 Godwin called seven or eight times and at the end of the day Amato called him back. Amato told him that he was washing his hands of him and hung up. Godwin called right back telling Amato that he had friends in town who were expecting three ounces. Godwin said he just wanted to have a chat with him for ten minutes and Amato agreed to meet him. Godwin mentioned that he was in a jam. Godwin told Amato that he didn't have to be frightened because he always dealt with guns and that he didn't "screw around". He told Amato, again according to Amato's evidence at trial:
'I'm just in a jam, I need to—to answer to these people, if not these people will be coming down to see you in the morning.'
Amato was asked if he would put Godwin in direct contact with June Lee or with her source repeating that these people would be coming down to see him (Amato that is) the next day. Amato called
[page 424]
June Lee who said that maybe something could be arranged for the following day, October 13. Godwin was still very anxious and asked Amato to try one more time. Amato called June Lee back and arrangements were made for a deal in the early morning of October 13. Godwin met Amato at 11 p.m. (October 12) in a parking lot. Godwin insisted he must personally pass the money to June Lee. Together they went to June Lee's place where they met in a basement apartment and Godwin purchased two and a half ounces of cocaine. Amato received no money and no cocaine for his part in the deal. Fie and Godwin left the apartment separately.
Godwin called twice two days later and again the following day looking for Lee's phone number. After that time there was no further contact between Amato and Godwin. Two subsequent deals were made with Lee by Godwin and she pleaded guilty to the three counts. Amato was arrested five months after the third transaction and was charged with trafficking in respect of the two dates in October.
In summary, there were three transactions:
1. one gram delivered by Amato to Langvin some time in September in respect of which no charge was laid;
2. a half ounce delivered by Amato to Godwin on October 3;
3. two and a half ounces delivered by Lee to Godwin on October 13.
Charges were laid with respect to numbers 2 and 3 only.
This account, with the exception of the reference to Godwin's evidence, is taken from the testimony of Amato given at his trial. André was not called to testify. Langvin could not be located despite the efforts of defence counsel to determine his whereabouts. The only evidence other than that of Amato which relates to the pressure being put upon him by Langvin and Godwin is the evidence of Godwin which commenced with the meeting in the parking lot on October 3. There are some conflicts between these two accounts of the period from October 3 to October 13. Godwin denies
[page 425]
having threatened Amato or having said anything about guns. Godwin says there were five phone calls during that period, three of which were initiated by Amato. Godwin also says that Amato discussed receiving an "end", some cocaine off the top for himself, although he doesn't say that he actually received it. The learned trial judge made the following observations on credibility:
In present case, the Crown was unable to produce the witness who originally arranged for the undercover officer to meet the accused, Amato. His evidence would have been extremely useful to assist me in making my determinations of fact. He could have corroborated the evidence of the Crown or he could have corroborated the evidence of the Defence. I believe he should have been called by the Crown. His absence has restricted the Defence from making a full answer in defence to the charge.
I am satisfied that in fairness to the accused I must presume that he would have given evidence consistent with that given by the Defence. For that reason, I am prepared for the sake of these reasons for judgment, to assume that the findings of fact ought to be made on the basis of the evidence tendered by the Defence.
There is some difficulty in determining whether the above passage refers to Amato's version of the events only up to October 3 or if it extends to include the period ending October 13. In subsequently reviewing the evidence of that period the learned trial judge says:
The third transaction testified to by the accused Amato concerned some two and a half ounces of cocaine. On this occasion, the undercover Policeman dealt directly with Amato to arrange the deal and then concluded it with the accused Lee. In this transaction, Amato alleged for the first time, according to my recollection of the evidence, that he was threatened by the undercover Policeman and the threat was one to the effect that if the deal could not be made, then certain people would visit Amato at his place of employment. This information presumably was passed on to the accused Lee. Amato testified that on the basis of the threat and persistence of the undercover Officer, he was forced to arrange the transaction which eventually took place.
I am satisfied that the evidence in this case falls far short of the evidence required at law to establish the defence of entrapment. The evidence amounts no more than to persistent solicitation by the informer and the
[page 426]
undercover Officer to persuade the accused Amato to engage in trafficking of cocaine. Amato's dealings with Ms. Lee do not permit her to be successful in relying on the defence of entrapment because she merely agreed to go along with her friend.
This subsequent reference to the evidence of Amato concerning the events between October 3 and 13 indicates that the trial judge proceeded on the basis that Amato's story was credible through-out, or at least was to be so taken for the reasons he gave, and that the defence of entrapment was rejected with reference to Amato's version of the events which had taken place.
The Court of Appeal also proceeded on the basis that Amato's story was to be believed in its entirety. Taggart J.A. reviewed the third transaction which occurred on October 13 as follows:
In addition, on the third occasion when cocaine passed between the persons in the house and Lee and the undercover police officer, the Appellant was induced to go to his source of supply not only by importuning on the part of the undercover police officer but as well by reason of threats of the use of force by persons for whom the undercover police officer said he was obtaining the cocaine.
In the light of these comments I come to the conclusion that the account of the appellant was accepted as credible and that the issue of the application of entrapment should be disposed of on that basis.
Returning to the facts it should be noted that prior to October 3, 1977, Amato was neither known to nor suspected by the police as a drug trafficker. Neither is there evidence that a police operation was being directed through him against Lee or any other police suspect. The evidence in short reveals a random contact with Amato by Langvin, a police agent, through an innocent intermediary (Amato's boss) who plays no further part in the story.
The trial judge apparently accepted that the defence of entrapment was open as a matter of law in Canada and he referred to the judgment of
[page 427]
Laskin C.J. in Kirzner v. The Queen, [1978] 2 S.C.R. 487, and summarized his view of the test therein described as follows:
In order to determine the sufficiency of evidence to raise a defence of entrapment there must be evidence to show that the Police had instigated the crime and that had they not done so, the accused would not have been involved in the transaction. The instigation must of course go beyond mere solicitation or decoy work.
As seen from the above the trial judge was of the view that the evidence fell "far short of the evidence required at law to establish the defence of entrapment". Notwithstanding that conclusion the learned trial judge made this observation in imposing his sentence, a fine of $3,000:
I am satisfied that I do not have to incarcerate you. I'm satisfied, however, that I must impose some monetary punishment. Notwithstanding that you were persuaded by some continuing persistence to get involved in the trafficking of cocaine, I was not and I am still not satisfied that the persistence used upon you legally justified your actions. I am, however, satisfied that that persistence is something that I must take into consideration in imposing sentence upon you.
The Court of Appeal agreed with the conclusion of the trial judge in a passing reference to the merits of the defence of entrapment. In any event the Court concluded that the defence of entrapment was not available. Taggart J.A., after referring to decisions of the British Columbia and Ontario Courts of Appeal in which the view was expressed that there was no defence of entrapment, as well as to the views of the Chief Justice in Kirzner v. The Queen, supra, put it this way:
I think we ought to follow the expressed views of this Court until such time as the matter is definitively settled by the Supreme Court of Canada or by a division of this Court composed of five members who can deal definitively with the problem.
Seaton J.A. was of the view not only that the defence of entrapment does not exist but that it should not exist. He expressed a decided preference for what he called the English approach which he explained as being the conviction of the accused for the completed offence but mitigating
[page 428]
the sentence where his involvement is due to the motivating influence of others whether those others be police agents or not. Carrothers J.A. agreed with both Taggart and Seaton B.A.
The issue of the availability of the defence of entrapment was expressly left open by Chief Justice Laskin in Kirzner, supra. The Ontario Court of Appeal in that case ((1976), 14 O.R. (2d) 665) had taken the view that the defence was not open to the accused. The Chief Justice concurred with the Court of Appeal in the result but not the reasoning at p. 496:
In these circumstances, I would not, however, endorse the view of the Ontario Court of Appeal in the present case or of the British Columbia Court of Appeal in Chernecki [(1971), 16 C.R.N.S. 182] rejecting entrapment as a defence. There are good reasons for leaving the question open. Indeed, if that position is based on a static view of s. 7(3) of the Criminal Code I find it unacceptable. I do not think that s. 7(3) should be regarded as having frozen the power of the Courts to enlarge the content of the common law by way of recognizing new defences, as they may think proper according to circumstances that they consider may call for further control of prosecutorial behaviour or of judicial proceedings.
The majority of this Court speaking through Pigeon J. expressly refrained from expressing any view on the availability of the defence of entrapment in Canadian law.
The scope of a defence in the nature of that generally called entrapment and the problems raised by such a defence are discussed at length by the Chief Justice in Kirzner, supra, and will not be repeated here. If there be such a defence for an accused in the criminal law, several matters must be determined:
(a) the source of authority in the courts to give recognition to the defence;
(b) the nature and range of offences in respect of which this defence may be available;
(c) the constituent elements which must be present;
[page 429]
(d) the remedy or result of its successful application.
The proponents of this defence generally seek to advance it as something necessary to bring fairness or fundamental justice into the criminal law when the state agencies of enforcement resort to methods of law enforcement which threaten the integrity of the criminal justice system or bring shame to the state. Put another way, the defence is seen as an offset to or a control mechanism for over-zealous crime detection and prosecution where inducement or incitement leads the otherwise innocent to the commission of an offence. There are shades and variants of these elements which make the defence difficult of definition and the doctrine delicate to apply.
As the Chief Justice said in Kirzner at p. 492:
There is, of course, a balance to be struck between giving reasonable latitude to the police in the employment of stratagems to control the spread of crime, especially in the case of the illegal drug traffic, and controlling behaviour that goes beyond any reasonable latitude. American jurisdictions have, on a constitutional basis, sought to control the introduction of illegally obtained evidence; in England, the Courts have continued to exercise a discretionary power to control the admissibility of evidence that would operate unfairly against an accused. Control techniques may thus relate to the recognition of substantive defences or to rules against the admission of evidence or to a discretion as to its reception. Abuse of process or stay of proceedings have also been put forward as techniques of control.
and at p. 494:
The problem which has caused judicial concern is the one which arises from the police-instigated crime, where the police have gone beyond mere solicitation or mere decoy work and have actively organized a scheme of ensnarement, of entrapment, in order to prosecute the person so caught. In my opinion, it is only in this situation that it is proper to speak of entrapment and to consider what effect this should have on the prosecution of a person who has thus been drawn into the commission of an offence.
[page 430]
There is no doubt that it may be difficult in particular cases to draw the line between mere use of spies, decoys or informers and the use of agents provocateurs who go beyond mere solicitation or encouragement and initiate a criminal design for the purpose of entrapping a person in order to prosecute him.
In an earlier case the defence was characterized by the Chief Justice in a judgment when on the Ontario Court of Appeal, as arising in the presence of "calculated inveigling and persistent importuning" by the enforcement agency: R. v. Ormerod, [1969] 2 O.R. 230, at p. 238.
This defence has been applied and been the subject of an on-going debate for over half a century in the courts of the United States. In Sorrells v. United States (1932), 287 U.S. 435, a case in which the facts, substituting alcohol for drugs, are remarkably similar to the present circumstances, Chief Justice Hughes recognized the defence:
It is clear that the evidence was sufficient to warrant a finding that the act for which defendant was prosecuted was instigated by the prohibition agent, that it was the creature of his purpose . . . [p. 441]
and continued on p. 442:
A different question is presented when the crimnal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.
The Court adopted an earlier Circuit Court view:
When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor. [Woods J. in Newman v. United States (1924), 299 F. 128, at p. 131].
The majority of the Court found authority for applying the defence of entrapment in a rule of statutory construction to be applied to the offence-creating statute, at p. 448:
[page 431]
We think that this established principle of construction is applicable here. We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.
By this theory the Court avoided claiming for itself a power to forbid the prosecution of a person whose conduct appears to come squarely within the statute. The issue was seen by the Court as whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offence which is "the product of the creative industry of its own efforts". Chief Justice Hughes concluded at p. 451:
If that is the fact, common justice requires that the accused be permitted to prove it.
The question then arose, of course, as to what the proper disposition should be on a successful application of the defence. Should it preclude prosecution, should it be a finding of not guilty, or simply a stay of prosecution at whatever the stage the defence is established? In Sorrells the Court remanded the case for further proceedings at trial in which it would be left to the jury to assess the conduct of the police investigation and the conduct of the accused with emphasis upon his predisposition and criminal design with reference to the offence. Chief Justice Hughes concluded at p. 452:
We are of the opinion that upon the evidence produced in the instant case the defense of entrapment was available and that the trial court was in error in holding that as a matter of law there was no entrapment and in refusing to submit the issue to the jury.
A minority opinion by Mr. Justice Roberts, concurred in by Justices Brandeis and Stone, took the view, at p. 454, that entrapment should be defined as:
... the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.
[page 432]
In the minority view the doctrine of entrapment rests on a fundamental rule of public policy, at pp. 457 and 459, namely:
The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention. Quite properly it may discharge the prisoner upon a writ of habeas corpus. Equally well may it quash the indictment or entertain and try a plea in bar. But its powers do not end there. Proof of entrapment, at any stage of the case, requires the court to stop the prosecution, direct that the indictment be quashed, and the defendant set at liberty.
[…]
The applicable principle is that courts must be closed to the trial of a crime instigated by the government's own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.
The U.S. Supreme Court considered this defence again in Sherman v. United States (1958), 356 U.S. 369. The accused had been repeatedly importuned by an informer who, like the accused, was attending a clinic for treatment for narcotic addiction. The informer claimed that he was not responding to treatment and the repeated requests for assistance in obtaining narcotics were premised upon the informer's feigned suffering. The majority applied Sorrells and continued to define entrapment as a defence "where the criminal conduct was the product of creative activity of law enforcement officials". The government reply relied on the defendant's criminal record to establish "a ready complaisance" to commit the offence. In Sorrells the case was remanded with the entrapment issue being left to the jury. In Sherman, however, the Court directed a dismissal no doubt on the grounds of overwhelming evidence. The majority of the Court declined to reconsider the doctrinal basis for the defence adopted by the majority in Sorrells as the issue had not been
[page 433]
raised by the parties or in the lower courts. Frankfurter J., for himself and Justices Douglas, Harlan and Brennan, concurred in the result but would have elevated the minority view of Sorrells to a governing principle. The view of Frankfurter J., at p. 380, was that:
Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them .... Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.
Following this line of thought the crucial question becomes whether the police conduct in a particular case falls below "standards, to which common feelings respond, for the proper use of governmental power". The position of the majority in Sorrells is commented upon at p. 382:
The intention referred to, therefore, must be a general intention or predisposition to commit, whenever the opportunity should arise, crimes of the kind solicited, and in proof of such a predisposition evidence has often been admitted to show the defendant's reputation, criminal activities, and prior disposition. The danger of prejudice in such a situation, particularly if the issue of entrapment must be submitted to the jury and disposed of by a general verdict of guilty or innocent, is evident. The defendant must either forego the claim of entrapment or run the substantial risk that, in spite of instructions, the jury will allow a criminal record or bad reputation to weigh in its determination of guilt of the specific offense of which he stands charged. Furthermore, a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment.
[page 434]
It follows therefore that a court enunciating this view must conclude, irrespective of the defendant's past record, that certain police conduct to ensnare him into further crime cannot be tolerated and hence the defence of entrapment applies. The position of the accused is not the criterion of the test but rather the conduct of the public authority (at p. 383):
Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition.
While recognizing that the police may act so as to detect those engaged in criminal conduct and those who are ready and willing to commit further crimes, the test as to entrapment must be that (at p. 384):
... in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations. This test shifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime. It is as objective a test as the subject matter permits, .. .
The minority acknowledges that the scale of police conduct to be condemned by the doctrine must be such as is likely to induce those not otherwise ready and willing to commit crime to do so, and this type of conduct must "be picked out from case to case as new situations arise involving different crimes and new methods of detection" (p. 384). Like Justice Roberts in Sorrells, the minority in Sherman concluded at p. 385 that the test was one for the court and not for the jury:
Only the court, through the gradual evolution of explicit standards in accumulated precedents, can do this with the degree of certainty that the wise administration of criminal justice demands.
[page 435]
Frankfurter J. does not stipulate as to whether the proper disposition is a quashing of the charge as proposed by Roberts J. in Sorrells or a stay of proceedings as was frequently the case in the federal courts when that option was open to them. He concurred with the result of the majority which was to remand the matter to the trial court with instructions to dismiss the indictment.
Again in 1973 the U.S. Supreme Court returned to entrapment in the United States v. Russell, 411 U.S. 423. The police investigator had supplied an essential and, although legally obtainable, difficult to obtain ingredient in the manufacture of 'speed' in return for one-half of the drug to be produced. The conviction was overturned by the Court of Appeals for the Ninth Circuit because of "the intolerable degree of government participation in the criminal enterprise" ((1972), 459 F. 2d 671). The trial judge had stated the law to be:
Where a person already has the willingness and the readiness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment.
By a five-to-four majority the Supreme Court restored the conviction. Rehnquist J., for the majority, followed the majority judgments in Sorrells and Sherman, taking the epitome of the latter judgment to be the observation by Chief Justice Warren:
[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. [356 U.S. 369, at 372].
Rehnquist J. concluded in favour of the "subjective" approach at p. 434:
Nor does it seem particularly desirable for the law to grant complete immunity from prosecution to one who himself planned to commit a crime, and then committed it, simply because government undercover agents subjected him to inducements which might have seduced a hypothetical individual who was not so predisposed.
[page 436]
It is clear that in the view of the majority in Russell the defence of entrapment is not to be used as a flexible yardstick in assessing the conduct of the prosecution. Rehnquist J. continued, at p. 435:
But the defense of entrapment enunciated in those opinions was not intended to give the federal judiciary a "chancellor's foot" veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.
Four members of the Court dissented in two judgments. Douglas J. with Brennan J. concurring followed the dissents in Sorrells and Sherman and concluded that the federal prosecutor here played "a debased role" when he became the "instigator" of the crime by supplying an ingredient needed to manufacture the illegal drug. Stewart J. dissented (Brennan and Marshall JJ. concurring) and likewise adopted the dissenting viewpoint in the two prior cases. The Sorrells and Sherman majorities in this view stand for the limitation of the entrapment doctrine "to those who would be otherwise innocent", that is those who would not have committed the crime but for the government's inducement (p. 440). Stewart J. would apply the principle of the minority view in both cases and thereby place the focus upon "whether the police conduct falls below standards for the proper use of governmental power", or as Stewart J. put it at p. 441:
Phrased another way, the question is whether—regardless of the predisposition to crime of the particular defendant involved—the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. Under this approach, the determination of the lawfulness of the Government's conduct must be made—as it is on all questions involving the legality of law enforcement methods—by the trial judge, not the jury.
[page 437]
The minority prefers an application whereby the "predisposed" or "otherwise innocent" condition of the defendant is irrelevant because "this subjective test means that the Government is permitted to entrap a person with a criminal record or bad reputation, and then to prosecute him for the manufactured crime ... " [pp. 443-44].
From a review of the earlier decisions the appropriate rule in the minority view is expressed to be (per Stewart J. at p. 445):
But when the agents' involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then—regardless of the character or propensities of the particular person induced—I think entrapment has occurred.
On principle the supply by a government agent to the defendant of an essential ingredient not otherwise obtainable was precisely the type of governmental conduct that amounts to entrapment in the view of the minority. Therefore, regardless of the defendant's "predisposition" or "innocence", he was entrapped. Neither dissenting judgment deals with the proper disposition of such a case. The reversal of the conviction at trial by the Court of Appeals may have entailed a quashing of the indictment or a dismissal of the charge but the Report [(1972), 459 F. 2d 671] is ambiguous. Vide also Hampton v. United States (1976), 425 U.S. 484, where entrapment emerged in some of the judgments of the Court but as the discussion centered on constitutional aspects, the case is not here helpful.
In the course of this developing case law in the American courts the American Law Institute published a proposed Model Penal Code, 1962. With reference to entrapment the following was proposed:
Section 2.13. Entrapment.
(1) A public law enforcement official or a person acting in cooperation with such an official perpetrates
[page 438]
an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(a) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(b)employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(2) Except as provided in Subsection (3) of this Section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the Court in the absence of the jury.
(3)The defense afforded by this Section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
See also the Brown Commission proposal for a new federal Criminal Code to the same effect (1971), sec. 702(2). The American entrapment jurisprudence has been the source of much academic comment in the United States as well as in Canada and the United Kingdom. Vide: Park, The Entrapment Controversy (1976), 60 Minn. L.R. 163; Friedland, Controlling Entrapment (1982), 32 U. of T. L.J. 1; Barlow, Entrapment and the Common Law (1978), 41 Mod. L.R. 266.
The earliest reference in the Canadian cases to the defence now commonly referred to as entrapment is found in Amsden v. Rogers (1916), 26 C.C.C. 389. Like several of the cases which follow, other grounds were found for the dismissal of charges, here the lack of precision in the evidence establishing the locus of the offence to be within the province of charge. In the course of disposing of the appeal on this basis Lamont J., then in the Supreme Court of Saskatchewan, stated:
I do not say that in their efforts to secure evidence in cases where crimes have been committed the officers of
[page 439]
the law are not sometimes entitled to resort to pretense and even false statements. There may be cases where that is necessary in the interests of justice to enable them to secure the evidence, and the fact that an officer has resorted to subterfuge may not cast discredit upon the evidence which he discovers by means thereof. But, in my opinion, it is a different matter where the false statements are made, not for the detection of crime committed but for the purpose of inducing its commission, and inducing its commission in order that the person making these statements may be able to prefer a charge for the offence committed at his solicitation.
This Court in Lemieux v. The Queen, [1967] S.C.R. 492, found it unnecessary to accept or reject the defence because on the facts before the Court the defendant has not committed the alleged breaking and entering because by police arrangement the owner of the premises has consented to the entry. The facts were well within the requirement of Sorrells, et al. but for the foregoing reason it was unnecessary to settle the issue of entrapment on that appeal. Judson J., however, in giving judgment for the Court asserted, albeit in obiter (at p. 496):
Had Lemieux in fact committed the offence with which he was charged, the circumstance that he had done the forbidden act at the solicitation of an agent provocateur would have been irrelevant to the question of his guilt or innocence.
In the following year, in Patterson v. The Queen, [1968] S.C.R. 157, the Court allowed an appeal from conviction on the basis that the offence of keeping a common bawdy house was not disclosed on the record. The policeman who instigated the alleged transaction by an unsolicited telephone call to the accused was described in the Court of Appeal as an agent provocateur but nothing indicates that the defence of entrapment was advanced before this Court. As in Lemieux the appeal turned on the failure of the record to disclose the commission of the alleged offence and hence the issue of entrapment did not arise.
In the year following, the Ontario Court of Appeal in Ormerod, supra, examined the defence
[page 440]
and in the view of Laskin J.A., as he then was, if there be a general defence an element must be the presence of ". .. such calculated inveigling and persistent importuning of the accused ... as to go beyond ordinary solicitation of a suspected drug seller" (at p. 238). The exploratory views there expressed seem to be that if the defence had its place in the common law it would be in the Court's inherent power to prevent abuse of its processes.
R. v. Shipley, [1970] 2 O.R. 411, records the first judicial application of the defence in this country. The undercover policeman acknowledged that there was no reason to suspect the accused of trafficking in drugs and that the policeman was desirous not "of developing evidence against the accused or to catch him in trafficking". His primary interest in the transactions which followed was to find out the identity of the accused's suppliers. McAndrew Co. Ct. J. found that without the inducement held out by the officer the accused would not have offended the Narcotic Control Act. The Court applied the dictum of Sorrells, supra, to the effect that the officer had done more than supply the opportunity to commit the offence; he had in fact instigated the offence by putting the idea into the mind of the accused; and stayed the prosecution on the authority of the Ontario Court of Appeal decision in R. v. Osborn, [1969] 1 O.R. 152, (subsequently reversed in this Court, [1971] S.C.R. 184). See also R. v. MacDonald (1971), 15 C.R.N.S. 122 (B.C. Prov. Ct.)
The British Columbia Court of Appeal rejected the defence of entrapment on the facts in R. v. Chernecki, supra, but in doing so applied the words of Judson J. in Lemieux, supra, observing that no such defence was then known to the law in this country (per Bull J.A., pp. 232-33). Notwithstanding the Chernecki decision, Cronin Prov. Ct. J. (B.C.) applied the defence of entrapment in R. v. Haukness, [1976] 5 W.W.R. 420, and found the accused not guilty. In R. v. Sirois, [1972] 2 W.W.R. 149, Greschuk J. of the Supreme Court of Alberta applied the test in Sorrells and rejected the defence on the facts. Similarly, the Nova
[page 441]
Scotia Court of Appeal in R. v. Bonnar (1975), 34 C.R.N.S. 182, after a comprehensive review of the law of entrapment in the United States and the tentative discussions of the doctrine in the courts of this country, found on the facts no basis for the defence because the undercover agent (not a policeman) "afforded the accused the opportunity to commit the offence [but] he did not induce him to commit it" (p. 194). In obiter Macdonald J.A., speaking for the Court, expressed the view at p. 192:
... that proceedings should be stayed or the accused discharged if it is clear that the accused did not have a prior intention or predisposition to commit the offence with which he is charged but committed it only because the conduct of the agent provocateur was (as Laskin J.A. said in Regina v. Ormerod ...) such calculating, inveigling and persistent importuning as went beyond ordinary solicitation. In such a situation there is an abuse of the process of the Court and something that is contrary to public policy. Indeed such conduct by an agent provocateur strikes at the very foundation of the system and administration of criminal justice in a free and democratic society and just cannot be permitted or condoned.
As in Sorrells, supra the foregoing indicates the need for the presence of two elements:
(a) the absence of prior intention or predisposition in the accused to commit the offence; and
(b) the commission of the offence because of the conduct of the police agent when it amounts to calculating, inveigling and persistent importuning.
There is a brief reference to entrapment in the Report of the Canadian Committee on Corrections (the Ouimet Report, 1969) where at pp. 75-76 it is stated:
... the function of law enforcement officers is to detect crime, not to create or encourage crime .... the use of persuasion or unfair means to induce the commission of an offence by a person who had no pre-existing intention to commit it, and who would not have committed the
[page 442]
offence but for the instigation of law enforcement officers or an agent provocateur employed by them, is in the opinion of the Committee wholly indefensible.
With respect to the defence of entrapment the Committee recommended legislation at pp. 79-80, which would provide:
1. That a person is not guilty of an offence if his conduct is instigated by a law enforcement officer or agent of a law enforcement officer, for the purpose of obtaining evidence for the prosecution of such person, if such person did not have a pre-existing intention to commit the offence.
2. Conduct amounting to an offence shall be deemed not to have been instigated where the defendant had a pre-existing intention to commit the offence when the opportunity arose and the conduct which is alleged to have induced the defendant to commit the offence did not go beyond affording him an opportunity to commit it.
3. The defence that the offence has been instigated by a law enforcement officer or his agent should not apply to the commission of those offences which involve the infliction of bodily harm or which endanger life.
The Report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (The McDonald Commission, 1981) made a somewhat similar recommendation with reference to the defence of entrapment. See Second Report, vol. II, at p. 1053.
If there be a defence of entrapment available to the accused in the circumstances of this appeal it cannot be of statutory origin for it is not to be found in the Criminal Code. If a defence arises in the common law it can only find its way into the courts through s. 7(3) of the Code:
7. ...
(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of the Parliament of Canada, except in so far as they are altered by or are inconsistent with this Act or any other Act of the Parliament of Canada.
[page 443]
This provision in turn only supports the application of such a defence if subs. (3) has a continuing prospective character when properly construed. The Chief Justice assumes this to be the case in Kirzner, supra, at p. 496:
I do not think that s. 7(3) should be regarded as having frozen the power of the Courts to enlarge the content of the common law by way of recognizing new defences, as they may think proper according to circumstances that they consider may call for further control of prosecutorial behaviour or of judicial proceedings.
Bull J.A. in Chernecki, supra, on the other hand, appears to take the opposite view of s. 7(3). The conventional view has been that the common law is always speaking. Some theories hold that it is a process of discovery, others of evolution. Whatever it might be properly classified to be in jurisprudence it would take the clearest and most precise language in a statute which purports to incorporate the principles of common law to so construe it as to crystallize the common law at the date of enactment of the statute. If so, the importation of common law principles would be limited to those which had crystallized and developed prior to the effective date of the statute. Section 7(3) does not employ such words. It is at most ambiguous, susceptible either to the static view or to the view that it makes reference to the common law as an evolving, developing system of rules and principles. Where a statute might be read as displacing the common law the appropriate canon of interpretation is a preference for that construction which preserves the rule of common law where it can be done consistently with the statute. By analogy the common law would be allowed to develop defences not inconsistent with the provisions of the Code if the construction adopted was prospective. For this conclusion I find support in the Report of the Imperial Commissioners of the draft Code of 1879, s. 19 of which is the forerunner of our present s. 7(3). The Commissioners explained the inclusion of s. 19 (now s. 7(3)) as follows, at Volume I, p. 10 of their Report:
But whilst we exclude from the category of indictable offences any culpable act or omission not provided for by this or some other Act of Parliament, there is another
[page 444]
branch of the unwritten law which introduces different considerations; namely, the principles which declare what circumstances amount to a justification or excuse for doing that which would be otherwise a crime, or at least would alter the quality of the crime. In the cases of ordinary occurrence, the decisions of the Courts and the opinions of great lawyers enable us to say how the principles of the law are to be applied. And so far the unwritten law may be digested without extreme difficulty and with practical advantage, and so far also it may be settled and rendered certain.
In our opinion the principles of the common law on such subjects, when rightly understood, are founded on sense and justice. There are a few points on which we venture to suggest alterations, which we shall afterwards state in detail. At present we desire to state that in our opinion it is, if not absolutely impossible, at least not practicable, to foresee all the various combinations of circumstances which may happen, but which are of so unfrequent occurrence that they have not hitherto been the subject of judicial consideration, although they might constitute a justification or excuse, and to use language at once so precise and clear and comprehensive as to include all cases that ought to be included, and not to include any case that ought to be excluded.
We have already expressed our opinion that it is on the whole expedient that no crimes not specified in the Draft Code should be punished, though in consequence some guilty persons may thus escape punishment. But we do not think it desirable that, if a particular combination of circumstances arises of so unusual a character that the law has never been decided with reference to it, there should be any risk of a Code being so framed as to deprive an accused person of a defence to which the common law entitles him, and that it might become the duty of the judge to direct the jury that they must find him guilty, although the facts proved did show that he had a defence on the merits, and would have an undoubted claim to be pardoned by the Crown. While, therefore, digesting and declaring the law as applicable to the ordinary cases, we think that the common law so far as it affords a defence should be preserved in all cases not expressly provided for. This we have endeavoured to do by Section 19 of the Draft Code.
It might also be noted that in recent years this Court has adverted to common law defences of duress (Paquette v. The Queen, [1977] 2 S.C.R. 189), necessity (Morgentaler v. The Queen, [1976] 1 S.C.R. 616), and due diligence (R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299), without exclusive
[page 445]
concern for the state of the law prior to the 1892 introduction of the Criminal Code.
Applying the ordinary rule of construction where statutes and common law meet I conclude that s. 7(3) is the authority for the courts of criminal jurisdiction to adopt, if appropriate in the view of the court, defences including the defence of entrapment. The components of such a defence and the criteria for its application raise other issues.
Having found the way open for the development of defences not contrary to the provisions of the Code or other statutes of Canada, consideration must be given to the juristic nature of the doctrine of entrapment. While it is frequently referred to in legal writings and sometimes in the courts as the 'defence of entrapment' it is not a defence in the traditional sense of that term. A successful defence leads to an acquittal on the charge, a determination that the offence has not been committed by the accused. Here, axiomatically, the crime from a physical point of view at least has been committed. Indeed it may be that the necessary intent and act have combined to form a complete crime. The successful application of the doctrine of entrapment, if it be a defence in the ordinary sense, would support an acquittal. The Criminal Code authorizes acquittals in somewhat similar circumstances as in the case of the defence of duress. However, as will be seen later, the successful application of the concept of entrapment leads to a stay of prosecution, the court withholding its processes from the prosecution on the basis that such would bring the administration of justice into disrepute. This is an exercise of the inherent powers of the courts. Entrapment is not in a traditional sense a defence. For convenience and ease of reference as well as to conform to the present vocabulary of the law, I sometimes refer to the doctrine as the 'defence of entrapment' although in strict law it is not a defence. Therefore, for this technical reason, it may not be necessary to invoke s. 7(3) other than to illustrate by analogy the continuing flexibility of the criminal law within and without the Criminal Code.
[page 446]
The availability of this defence in law and the proper constituent elements of the offence are closely entwined. Assuming the defence to be known to the common law and available in Canadian criminal law, in a proper case what are the component elements, the criteria to be met for its invocation? It is, of course, impossible to cast in futuro a set of guides, principles, rules or yard-sticks with satisfactory precision and detail. This defence perhaps more than any other will succeed only in an unusual and delicately balanced set of circumstances. Case law will have to paint in the variants. The principal elements or characteristics of the defence are that an offence must be instigated, originated or brought about by the police and the accused must be ensnared into the commission of that offence by the police conduct; the purpose of the scheme must be to gain evidence for the prosecution of the accused for the very crime which has been so instigated; and the inducement may be but is not limited to deceit, fraud, trickery or reward, and ordinarily but not necessarily will consist of calculated inveigling and persistent importuning. The character of the initiative taken by the police is unaffected by the fact that the law enforcement agency is represented by a member of a police force or an undercover or other agent, paid or unpaid, but operating under the control of the police. In the result, the scheme so perpetrated must in all the circumstances be so shocking and outrageous as to bring the administration of justice into disrepute.
At least one relevant circumstance in examining the character in law of the police conduct (such as persistent importuning) is whether the law enforcement agency had a reasonable suspicion that the accused would commit the offence without inducement. By itself and without more the predisposition in fact of the accused is not relevant to the availability of the defence. On the other hand, where the true purpose of the police initiative is to put the enforcement officers in a position to obtain evidence of an offence when committed, absent other circumstances already noted, the concept of entrapment does not arise.
[page 447]
Each case will turn within the influence of these factors according to its own circumstances. The root of the defence must, in my view, be the same as, for example, the exclusion of involuntary confessions. The integrity of the criminal justice system demands the rule. The exclusionary rule in any defence based upon the same ultimate considerations will be difficult of administration; but that is not a fatal consideration. Even if entrapment were found to be based upon a rule of statutory interpretation, as Chief Justice Hughes has said, its application, as for example in Russell, supra, is difficult. Fine lines are drawn in the determination of guilt and innocence throughout the criminal law. The overriding need in the field which we have been examining on this appeal is for a device in the criminal justice system which will not expose the community to the spectacle of a person being convicted of a crime, the commission of which in substance was the work of the state itself.
As we have seen the United States Supreme Court is ambivalent on the consequences of implementation of the defence of entrapment. The majority view in Sorrells and Russell has considered it to be a matter for the jury on the proper instructions of the trial judge in the ordinary way. In this process the defence leads the evidence of entrapment and the prosecution has the right of reply. The difficulties with this procedure are described above in excerpts from the minority view from the Sorrells case forward. The minority position is that abuse of process is the fundamental safeguard available to the community through the court for the preservation of the integrity of the administration of justice. It is for the courts and no one else to maintain that integrity and to keep the courts free and immune from improper employment by other branches of government. Thus the minority view decries the employment of a rule of statutory construction to find that the accused, although he has committed the crime, has not offended the statute and thereby is entitled to a defence. The minority view meets the problem head-on by acknowledging the commission of the offence but, in the circumstances raised by the defence of entrapment, treating the case as one the
[page 448]
hearing of which in court would be an abuse of the judicial system by the prosecutorial arm of government. The remedy in such a case therefore is a stay of prosecution, a denial of the courts to their improper use by the law enforcement agencies of the community. Sometimes the United States courts quashed the indictment and sometimes simply entered a stay. There seems to be no distinction in the law of that country, at least in this sector of the law, between the remedy of a dismissal, quashing of indictment or indefinite stay of prosecution. The essential difference between the minority and majority is that the latter leave the issue to the jury in the ordinary way as though this were a substantive defence, whereas the minority take the view that the protection of the process of the Court and the institution of the Court in order to preserve it for the discharge of its proper role in the community is a function for the Court and the Court alone. This raises philosophical difficulties when one considers the defence of duress where of course the physical act in question has been committed. The defence is available through the ordinary processes of trial and, if a jury is involved, will include the assessment of all the evidence and circumstances by the jury to determine the success of the defence.
In the case of entrapment, the minority in the United States Supreme Court has concluded that on balance the public interest requires that the administration of justice be safeguarded against the challenge coming from the executive branch of government through the abuse of the judicial process, by the presiding judge himself without the intervention of a jury. This school of thought has in its support the need for continuity of administration of the principle. The realization of an abuse of the judicial branch is a question essentially of law or law and political science and one not by its nature ordinarily assigned to the jury component of the trial courtroom. It would seem, on a pure application of criminal procedure, that a stay is the proper judicial step. I find comfort in this
[page 449]
conclusion in Bonnar, supra, per Macdonald J.A. at p. 192.
What basis, therefore, do we have in our criminal judicial system for a court staying a prosecution brought in the ordinary way by the executive branch of the government charged with the enforcement of the criminal law? This Court considered its role where abuse of process was advanced as a defence in R. v. Osborn which carne to this Court from the Ontario Court of Appeal where Jessup J.A., speaking for the Court in [1969] 1 O.R. 152, at p. 155, concluded:
... the courts of this Province have from the earliest times invoked an inherent jurisdiction to prevent the abuse of their process through oppressive or vexatious proceedings.
This brings us then to the basic question as to whether or not after the judgments of this Court in Osborn and in Rourke, infra, there is any jurisdiction in a Canadian criminal court to stay a prosecution on the grounds of abuse of process whether or not that abuse takes the form of the defence of entrapment. The Court of Appeal in Osborn was, in the result, reversed in this Court on the grounds that there is no basis in our criminal law for a finding of oppression by reason only of the fact that a multiplicity of charges are successively laid in relation to the same facts. In that case the respondent was acquitted on a charge of having in possession seven cheques intended to be used to commit a forgery. A year later the accused was indicted on a charge of conspiring to commit the indictable offence of uttering the same seven forged cheques. This was found in this Court not to be either oppressive or subject to any remedy such as abuse of process. In the view of Pigeon J. (Martland and Judson JJ. concurring), the issue was very narrow and dealt entirely with the right in the prosecution to come back with the second charge as it did. In his judgment Pigeon J. stated in part at pp. 188-89:
In the instant case, it does not appear to me that I need consider whether the trial judge had jurisdiction to make the order that the Court of Appeal held he should have made.
[…]
[page 450]
In this country, Parliament's conception of fairness has always been ... that when a conviction is quashed (Cr. Code, sec. 592(2)) a new trial can be ordered instead of an acquittal and such is always the order made except in special circumstances.
In reaching his conclusion Pigeon J. cited from the British decision of Connelly v. Director of Public Prosecutions, [1964] A.C. 1254, and particularly from the judgments of Lord Morris at p. 1301 and Lord Hodson at p. 1336 wherein repeated reference was made to an inherent power of a court to control its own processes, but that such power should not be used simply on the basis that a court would have preferred that the charge in question not have been brought. The minority in Osborn simply found that the facts did not give rise to oppression and consequently it was unnecessary to determine the extent to which the doctrine of the abuse of process might be employed in our criminal courts. The Chief Justice simply agreed that the appeal should be allowed and gave no reason.
Before proceeding to an examination of the decision of this Court in Rourke, supra, one should examine briefly the judgments in Connelly v. Director of Public Prosecutions, supra. Lord Reid, at p. 1296, after disposing of the narrow question then before the Court, stated:
But I think there must always be a residual discretion to prevent anything which savours of abuse of process.
Lord Morris, at p. 1304, narrowed the discretion somewhat by stating:
It would, in my judgment, be an unfortunate innovation if it were held that the power of a court to prevent any abuse of its process or to ensure compliance with correct procedure enabled a judge to suppress a prosecution merely because he regretted that it was taking place.
Lord Devlin, on the other hand, at p. 1347, took a much broader view of the authority of the Court to protect its own processes:
Under the first head I must observe that nearly the whole of the English criminal law of procedure and evidence has been made by exercise of the judges of
[page 451]
their power to see that what was fair and just was done between prosecutors and accused. The doctrine of autrefois was itself doubtless evolved in that way.
Lord Pearce adopted the broad view of Lord Devlin when he stated at p. 1365:
The court has, I think, a power to apply, in the exercise of its judicial discretion, the broader principles to cases that do not fit the actual pleas [pleas of autrefois convict and autrefois acquit] and a duty to stop a prosecution which on the facts offends against those principles and creates abuse and injustice.
Viewed in the light of the Connelly case, reference to which was repeatedly made in Osborn, it is difficult to see Osborn as establishing anything more than that the doctrine of abuse of prosecution will not avail an accused in a case of multiple charges brought on the same set of facts if nothing more is involved. The House of Lords continued the examination of the breadth of application, not the existence, of the doctrine of the abuse of process in Director of Public Prosecutions v. Humphrys, [1976] 2 Ml E.R. 497. Lord Hailsham, at p. 517, acknowledged the inherent jurisdiction of the Court to protect its own processes against abuse. Lord Salmon also found a general discretion in the Court to stay proceedings which were vexatious or oppressive (p. 528); and Lord Edmund-Davies took the same general position (pp. 533-35):
Notwithstanding certain of my observations in delivering the judgment of the Court of Criminal Appeal in Connelly, I am now satisfied that, in the words of Lord Parker CJ in Mills v Cooper [[19671] 2 All ER at 104, [1967] 2 QB at 467], 'every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court' ... .
While judges should pause long before staying proceedings which on their face are prefectly regular, it would indeed be bad for justice if in such fortunately rare cases as R v Riebold, [1967] 1 All ER 653, [1967] 1 WLR 674] their hands were tied and they were obliged to allow the further trial to proceed. In my judgment, Connelly established that they are vested with
[page 452]
the power to do what the justice of the case clearly demands.
Again in Humphrys as in Connelly the object of the Law Lords was not to establish a recognition of the doctrine of abuse of process but to define the reach and application of that doctrine.
I turn now to the decision of this Court in Rourke v. The Queen, [1978] 1 S.C.R. 1021. The Court was there faced with a proceeding which at trial had been stayed by reason of the delay in the Crown said to be harmful to the defence of the accused in bringing a charge of kidnapping and robbery, some twenty months in all. Pigeon J., writing for the majority in a five-to-four division, stated at p. 1043:
I cannot find any rule in our criminal law that prosecutions must be instituted promptly and ought not to be permitted to be proceeded with if a delay in instituting them may have caused prejudice to the accused. In fact, no authority was cited to establish the existence of such a principle which is at variance with the rule that criminal offences generally are not subject to prescription except in the case of specific offences for which a prescription time has been established by statute. I have to disagree with the view expressed by McIntyre J.A. that there could be factual situations giving to a trial judge discretion to stay proceedings for delay.
His Lordship goes on to say at p. 1043:
For the reasons I gave in The Queen v. Osborn, I cannot admit of any general discretionary power in courts of criminal jurisdiction to stay proceedings regularly instituted because the prosecution is considered oppressive.
As we have seen, the decision in Osborn was narrowed down to the facts then before the Court, namely the bringing of successive charges arising out of the same set of facts and the contrast between the criminal law procedure of Canada and the United Kingdom. Again in Rourke the issue is narrowly confined to the effects of a delay in bringing on to trial a person arrested twenty months previously at which time many if not all of the facts alleged by the prosecution were known. I cannot depart from an examination of Rourke without noting that the majority made reference to
[page 453]
s. 7(3) of the Criminal Code as being a provision for the retention of common law defences but not necessarily with reference to discretionary stay of proceedings which may or may not be rooted in the common law. Pigeon J. commented at p. 1045:
In my view, the absence of any provision in the Criminal Code contemplating the staying of an indictment by a trial judge or an appeal from such decision, is a strong indication against the existence of any power to grant such stay.
Chief Justice Laskin wrote for the minority in Rourke concurring in the conclusion of Pigeon J. that there was no basis for the exercise of the discretion to stay proceedings where the sole basis for the alleged abuse was a delay in prosecution. He did however take the view, at p. 1034, that the jurisdiction to stay proceedings for abuse is a useful one:
I have paraded this long list of cases to show how varied are the fact situations in which judges of different levels and of different Provinces have used abuse of process as a way of controlling prosecution behaviour which operates prejudicially to accused persons. I pass no judgment on the correctness of any of the decisions, but they do indicate by their very diversity the utility of a general principle of abuse of process which judges should be able to invoke in appropriate circumstances to mark their control of the process of their Courts and to require fair behaviour of the Crown towards accused persons. It will not escape notice that the decisions I have cited are almost all quite recent, and a perusal of them would reveal how much they have been influenced by Connelly v. Director of Public Prosecutions, supra, and particularly by the reasons of Lord Devlin in that case.
I come therefore to the conclusion that the decisions of Osborn and Rourke must be taken as standing on their own facts and limited precisely to the ratio of the judgments disposing of the issues arising on those facts. It follows therefore that the observations of Jessup J.A. in Osborn with reference to the origins and breadth of the trial court discretion to protect the processes of the courts from abuse remain substantially unimpaired by succeeding decisions in this Court. Viewed from
[page 454]
another perspective the majority in Rourke affirms an exceptional jurisdiction to stay proceedings whereas Laskin C.J.C. for the minority takes the view of Lord Devlin in Connelly and finds the doctrine of abuse of process a wide-ranging technique for the control by the criminal court of criminal procedure in the protection of the processes of that court; a technique illustrated but not limited by the special pleas of autrefois acquit and convict, res judicata and issue estoppel (p. 287). In my respectful view, much of what was said by both divisions of this Court in Rourke is obiter dicta, bearing in mind the precise issue of abuse of process in the form of delay by the prosecution which was then the only issue before the Court. There is a distinction to be drawn where the initiating process is valid and the only issue is delay prejudicial to the accused as in Rourke; and the case where the executive action leading to the charge and its prosecution is offensive to the principles on which the administration of justice is conducted by the courts. It is for this further reason that the judgment in Rourke in my view is not here applicable.
From the earliest times courts have withheld from the law enforcement arm of the community recourse to the authority of the criminal court where the conduct of the prosecution has offended the sense of justice of the court. As long ago as R. v. Robins (1844), 1 Cox C.C. 114, upon the prosecutor's inability to "explain satisfactorily the cause of the delay" (nearly two years), Baron Alderson said:
I ought not to allow this case to go further. It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? ... No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.
The Report concludes: "His Lordship then directed the jury to acquit the prisoner." See as well Lord Mansfield C.J. in R. v. Robinson (1765), I
[page 455]
Black. W. 541, 96 E.R. 313; and R. v. Marshall and Grantham (1811), 13 East 322, 104 E.R. 394.
It is of interest and of some relevance to observe that since the decisions of this Court in Osborn and Rourke courts in this country have tended to take a narrow view of the impact of these decisions on the doctrine of abuse of process; vide Munroe J. in R. v. K (1971), 5 C.C.C. (2d) 46, at p. 48; Vanek P.C.J. in R. v. Weightman and Cunningham (1977), 37 C.C.C. (2d) 303; and Lewis P.C.J. in R. v. Billen (1980), 54 C.C.C. (2d) 425; and to restrict effectively the impact of Rourke, for example, to the circumstances of prosecutorial delay only. See also Re Abitibi Paper Company Limited and The Queen (1979), 24 O.R. (2d) 742 (Ont. C.A.); Re Orysiuk and The Queen (1977), 37 C.C.C. (2d) 445 (Alta.); Re Asselin and The Queen (1979), 55 C.C.C. (2d) 332 (Quebec C.A.); and Re Young et al. and The Queen (1981), 60 C.C.C. (2d) 252 (Sask. Q.B.); John A. Olah, The Doctrine of Abuse of Process: Alive and Well in Canada (1978), 1 C.R. (3d) 341. There are, however, some instances of a broader interpretation of the majority view in Rourke as will be found in R. v. Lebrun (1978), 7 C.R. (3d) 93 (B.C.C.A.); R. v. Catagas (1977), 38 C.C.C. (2d) 296 (Man. C.A.); and R. v. Maxner (1981), 61 C.C.C. (2d) 446 (N.S.C.A.).
There may be said to be a tacit acknowledgment of the restricted ratio of Rourke in the unanimous judgment of this Court in R. v. Krannenburg, [1980] 1 S.C.R. 1053, per Dickson J. at p. 1061:
The question of whether a new information may be laid after jurisdiction has been lost is not before us, and I refrain from any extended discussion on the point, in the absence of argument and on the narrow facts of this case. It is manifest, however, that there will be occasions on which the laying of a new information will not be available. Time limitations may preclude it. Indeed, the laying of another information may amount to nothing less than an abuse of process.
[page 456]
and in the observation of Laskin C.J. in Kirzner, supra, at p. 501.
Lord Scarman, in R. v. Sang, [1979] 2 All E.R. 1222, (about which more will be said later), adverted to the abuse of process doctrine at p. 1245 when he said:
Save in the very rare situation, which is not this case, of an abuse of the process of the court (against which every court is in duty bound to protect itself), the judge is concerned only with the conduct of the trial.
The House of Lords, it should be noted however, in Sang did not bring the defence of entrapment within the principles of abuse of process. In the Court of Appeal judgment in Sang, however, ([1979] 2 All E.R. 46) in the opinion of the Court written by Roskill L.J., the question was left open at p. 50:
It has not been argued before us in the present appeals that if the present prosecution were allowed to proceed, it would amount to an abuse of the process of the court.
In an earlier decision of the House of Lords, Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497, Lord Guest, in referring to the overriding duty of the judge to ensure that a trial is fair, stated at p. 520 that such discretion
... springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused.
As we have already seen, the United States Supreme Court minority view in Sorrells, supra, invokes this same inherent power in the court for the recognition of the defence of entrapment.
There are of course but three available dispositions on a successful application of the defence of entrapment:
(a) a dismissal of the accused on the charge;
(b) an order quashing the charge;
(c) a stay of prosecution.
Alternative (a) is inappropriate in that both essential elements of the charge, the wrongful act and the criminal intent, are present in the proof before the court. As to (b) there is no authority in the Criminal Code for a court in this circumstance
[page 457]
to quash a charge that is complete in form and properly issued under the Code. The last alternative (c) has a technical infirmity in that the charge remains extant and in the records of the court. The case before the Court in this appeal was founded on an information about which there is no suggestion of irregularity. However, the defect in course (c) is wholly technical. While the charge may be said to hang over the head of the accused, this is a wholly theoretical observation because there is no forum for its further processing. The courts in both the United States and the United Kingdom have in such circumstances, as shown in the authorities already reviewed, followed all three routes without apparent concern for technical considerations. I would prefer alternative (c) and would apply a stay of prosecution where the defence of entrapment is operative.
There are offences which by their very nature would appear (as indicated earlier in these reasons) to render this defence inapplicable, as for example crimes of violence. One of the questions to be answered here therefore must be, what are the offences to which this defence will relate? Generally speaking, it is the consensual offence where the issue most naturally arises. When the offence relates to physical acts the crime leaves its own marks. Methods of detection reflect this fact. The victims complain. The external evidence is there for the police to follow. In other areas of crime such as drug offences, commercial or municipal fraud, prostitution and gambling, these conditions do not prevail. The 'victims' rarely seek the aid of the authorities, and indeed generally there are no direct 'victims'. There are no external signs of the offence. Policing must react differently to this kind of crime. Hence the use of agents provocateurs, spies, informers, undercover agents in or retained by the police force, decoys and other such police initiatives. The move from passive to active policing brings the courts into the process. When policing in this field verges into police-instigated crimes or into police stimulation of crime for the sake of obtaining convictions, what is the position of the courts? Up to this development in criminal justice the positions of the court and the executive were clear. The latter investigate apparent offences, gather evidence, make arrests,
[page 458]
lay charges, introduce evidence in court and present the law enforcement agency's views on the applicable law. The courts on the other hand receive the charge, take custody of the accused in a figurative and sometimes actual sense, hear the evidence, interpret and apply the law, determine guilt or innocence, award the appropriate punishment and return the accused to executive custody; or discharge the accused. In the process the court must concern itself with the conduct of the case by the prosecution and the accused and must vigorously apply the fundamental doctrine of the presumption of innocence. Courts have for centuries been evolving doctrines appropriate to this process, with and without legislative aid, in the form of rules relating to the admissibility of evidence and such substantive rules as the doctrine of res judicata. The consensual crimes, their detection and demonstration in court, raise new issues or aggravate the problems surrounding older issues. The appointed spy may, pursuant to arrangements, infiltrate and report upon participants in a crime to which the agent may be a party or which the agent has provided to others the opportunity to commit. In some circumstances, indeed, the offence would in all likelihood not have otherwise been committed. The law enforcement agency in these circumstances moves from the position of merely affording an opportunity for the commission of crime to persons who may be so disposed to a position where the agency itself encourages the commission of the crime. Expressed another way, the police may have by any such measures instigated the offence, or at least its planning, and did so simply to catch the otherwise innocent members of the public in order to prosecute them. The ensnared or entrapped must in such a situation have a defence in law for the police and the state have gone beyond mere crime detection by decoy work or solicitation of evidence. In fact the crime has been designed and committed by the state itself.
[page 459]
Whatever may be the range of such a defence, it must be clear that the defence arising in this circumstance does not operate in the case of all offences. In the Model Penal Code of 1962, supra, the defence is "unavailable when causing or threatening bodily injury is an element of the offence charged ... " (s. 2.13(3)), presumably on the basis that the social interest in controlling the accused's behaviour outweighs that of controlling police behaviour. There may be other categories of offences to which the defence will not run but this again will develop as the judicial system of criminal justice may require.
This is not a process unknown to the common law. The defence of 'duress' arose in the common law long before the Report of the Imperial Commissioners on the Draft Code 1879, s. 12 stated: "We have framed s. 23 of our Draft Code, to express what we think is the existing law ...." The Commissioners are there referring to the defence of duress, a defence originating in the common law long before the studies for the codification of criminal law commenced in England and were completed in Canada. The parallel is particularly apt as the defence of duress relates to the completed commission of an offence in the same way as entrapment. The common law rules and principles of duress as a defence, at least as regards a principal offender, have now been "codified and exhaustively defined in s. 17 ... " of the Code (R. v. Carker, [1967] S.C.R. 114, per Ritchie J. at p. 117). The Report by the Commissioners, supra, had this to say on the scope of that defence in common law:
There can be no doubt that a man is entitled to preserve his own life and limb; and on this ground he may justify much which otherwise would be punishable. The cases of a person setting up as a defence that he was compelled to commit a crime is of every day occurrence. There is no doubt on the authorities that compulsion is a defence where the crime is not of a heinous character.
[page 460]
Section 17 of the Canadian Criminal Code continued this general limitation by providing that the defence ". . . does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, assisting in rape, forcible abduction, robbery, causing bodily harm or arson".
The evolution of defences at common law, both evidentiary and substantive, have seen expansion and adjustment as required to meet altering conditions in the community, and entrapment as a defence has experienced this same history where it has been recognized. See for example the discussion in N.L.A. Barlow, Entrapment and the Common Law. Is there a Place for the American Doctrine of Entrapment, supra.
In the Court of Appeal Seaton J.A. (with whom Carrothers J.A. concurred) expressed a preference for the "English approach" which he described as making allowance at the sentencing stage by giving "attention to what motivated him and to any influence that others had upon him; others would include the police". It is certainly true that the courts of England have rejected the defence of entrapment (vide Sang, supra, at p. 1224) where not only was the defence of entrapment rejected but also the indirect power in a court to exclude evidence of the commission of the offence as a means of controlling the activities of the prosecution. In the course of giving judgment Lord Diplock (at p. 1227) and Lord Salmon (at p. 1236) both adverted to the possibility of imposing a milder sentence in the event the accused was found on the evidence to have been entrapped. However, it should be noted that both Law Lords also suggested prosecution of the police as a means of control of such improper activities. The House of Lords started with the simple assertion that entrapment is not a defence in English law and then approached the question on the basis that a power in a court to exclude the evidence relating to the commission of the offence on whatever basis would simply be a recognition of entrapment indirectly when the same was impermissible directly.
[page 461]
The fundamental cleavage in principle between the House and the approach of the United States Supreme Court is seen in Lord Diplock's observation at p. 1230:
It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them.
In my respectful view the issue is not the discipline of the prosecution but the avoidance of the improper invocation by the state of the judicial process and its powers in circumstances where the accused has been ensnared by the police force in order to bring about an offence for which he will be prosecuted. The view of Lord Diplock is expressed somewhat differently but with the same result by Lord Salmon at pp. 1235-36:
A man who intends to commit a crime and actually commits it is guilty of the offence whether or not he has been persuaded or induced to commit it, no matter by whom. This being the law, it is inconceivable that, in such circumstances, the judge could have a discretion to prevent the Crown from adducing evidence of the accused's guilt, for this would amount to giving the judge the power of changing or disregarding the law.
These conclusions necessarily result from the rejection of the defence of entrapment which as a necessary consequence has the effect of fatally reducing the Court's discretion under existing law which Lord Scarman described at p. 1243 as follows:
it is now the law that 'a judge has a discretion to exclude legally admissible evidence if justice so requires' (per Lord Reid in Myers v Director of Public Prosecutions, [[1964] 2 All E.R. 881 at 887, [1965] A.C. 1001 at 1024.]
Viscount Dilhorne was discussing the same principle in Selvey, supra, at p. 510 when he said:
It [the exclusion of evidence by restriction of the right to cross-examine] must depend on the circumstances of each case and the overriding duty of the judge to ensure that a trial is fair.
The result of this approach is that if the proceeding is fundamentally unfair and results in a conviction and punishment, the judicial branch is powerless, but if the result is only unfair in an
[page 462]
evidentiary sense in the course of the trial, but not necessarily resulting in an unfair outcome, the court, in its duty to ensure a fair trial, may exclude the objectionable evidence. This is the result not entirely of the adoption of the view that mitigation of sentence is the appropriate remedy alone but that legislation is necessary to recognize entrapment, that guilt is guilt however it may be proven or even brought about, that prosecution of the informer or of the police themselves is an adequate control mechanism. Some or all of these in combination may underlie the House of Lords' decision but it would appear to amount to an. oversimplification of the "English approach" to ascribe the result, at least in Sang, supra, as the adoption of singular recourse to mitigation of sentence.
The judgments in Sang may be said to be less than usually persuasive because they suffer, in my respectful view, from being a discussion of an assumed demonstration by the accused that but for police intervention he "would not have committed the offence" without any more factual base than that as to the presence or absence of inveigling and persistent importuning, and from a precluded view on entrapment as a defence known to the law.
There is in our country a serious limitation to reliance upon mitigation of sentence as a judicial response to the problem of entrapment. The Criminal Code and the Narcotics Control Act, and perhaps other statutes, sometimes impose serious minimum sentences. The latter statute in s. 5(2) for example, being the offence of importation of narcotics, stipulates a minimum sentence of seven years. It can hardly be thought that Parliament, in establishing such a minimum imprisonment, had in mind an accused who could demonstrate that the crime was instigated by the state itself.
As I have already intimated, the repugnance which must be experienced by a court on being implicated in a process so outrageous and shameful on the part of the state cannot be dissipated by
[page 463]
the registration of a conviction and the imposition thereafter of even a minimum sentence. To participate in such injustice up to and including a finding of guilt and then to attempt to undo the harm by the imposition of a lighter sentence, so far from restoring confidence in the fair administration of justice, would contribute to the opposite result. For the courts to acknowledge at the sentencing stage of the trial a sense of outrage at the position in which the accused and the court have been placed at the instigation of the police, is a wholly unsatisfactory response to the realization that a flagrant abuse of the process of the court has occurred. The harm to both the accused and to the administration of justice is complete with the substantive determination of guilt.
The stay of proceedings in the presence of entrapment finds its way into the law or fails to do so as a matter of judicial view of the proper policy of the law in these circumstances. Which policy will produce a principle of law which will better serve the community in this area of the criminal law has been the subject of thought and debate for a lengthy period. The considerations at play are well known and have been thoroughly analysed and debated in the courts and by judicial writers.
In the foregoing pages I have reviewed and discussed the experience of the courts of this country, of England and of the United States in their approach to the question of entrapment. I have, as well, endeavoured to isolate and state the principles which have emerged in the cases regarding the formulation of the defence and the application of it. It is clear that the need for some element of judicial control has been recognized in the common law and that the roots of the doctrine of entrapment are to be found in the common law. I am of the view that it is open to this Court and consistent with authority to recognize a defence of entrapment and to give effect to it in proper cases.
The conduct of the investigatory authority here in my view clearly gives rise to entrapment. In a period of two and one-half months the accused received fifteen to twenty telephone calls, together with visits to the accused by the police or their agent at work or at home. These importunings
[page 464]
were accompanied by successful efforts by the agent to gain the confidence and friendship of the accused. All this occurred after he had told the police informer that the accused could not be counted upon to provide the cocaine. In the second period of contact requests for drugs were made on a daily basis and accompanied by frequent visits by the undercover policeman at the accused's place of employment. In this second period there were also numerous urgent telephone calls requesting drugs, sometimes accompanied by implied threats of physical violence. That there was persistent inveigling and importuning is clear. It is also clear that the purpose of the program initiated by the police was to obtain evidence for the prosecution of the accused. It is the plain fact that the drug trafficking which occurred was promoted by the police at a time when the police had no reason to suspect, let alone believe, that the accused was in any way related to such activity. The cumulative effect of such a deliberately launched enterprise by the police would in my view 'in all the circumstances' be viewed in the community as shocking and outrageous, and such conduct is clearly contrary to the proper principles upon which justice must be done by the courts.
For all the reasons advanced and discussed above, I would recognize the defence of entrapment and would apply that defence to the facts and circumstances of this case; and therefore would allow the appeal, set aside the conviction and direct a stay of prosecution.
The judgment of Martland, Dickson, Beetz and Chouinard JJ. was delivered by
DICKSON J.—I am of the opinion that on the facts of this case the defence of entrapment, assuming it to be available under Canadian law, does not arise.
The trial judge stated:
In order to determine the sufficiency of evidence to raise a defence of entrapment there must be evidence to show that the Police had instigated the crime and that had they not done so, the accused would not have been
[page 465]
involved in the transaction. The instigation must of course go beyond mere solicitation or decoy work.
He continued:
In present case, the Crown was unable to produce the witness who originally arranged for the undercover officer to meet the accused, Amato. His evidence would have been extremely useful to assist me in making my determinations of fact. He could have corroborated the evidence of the Crown or he could have corroborated the evidence of the Defence. I believe he should have been called by the Crown. His absence has restricted the Defence from making a full answer in defence to the charge.
The trial judge concluded that in fairness to the accused he must presume that the witness in question would have given evidence consistent with that given by the defence and for that reason the findings of fact ought to be made on the basis of the evidence tendered by the defence. It seems to me a doubtful proposition that the defence evidence must be accepted as true because the Crown failed to call a witness whom the trial judge considered should have been called. Notwithstanding the adoption of such an unusual course, the trial judge concluded:
I am satisfied that the evidence in this case falls far short of the evidence required at law to establish the defence of entrapment. The evidence amounts no more than to persistent solicitation by the informer and the undercover Officer to persuade the accused Amato to engage in trafficking in cocaine.
When the matter reached the Court of Appeal, Taggart J.A. referred to the passage from the judgment at trial which I have just quoted and said:
I am not persuaded that the evidence to which we have been referred by counsel for the Appellant does other than support the conclusion reached by the trial judge.
Seaton J.A., in the course of his judgment said:
In the case at bar the police are not blamed, it is the informer who it is said importuned the Appellant. The police, according to counsel for the Appellant, did not have any reason to go after the Appellant and were not after him. It seems to me to follow that they did not entrap him. What the Appellant is saying is "I did
[page 466]
commit the offence, I was importuned by another, and fortunately for me that other had some relationship with the police and as a result I should be found not guilty." I do not accept that. I think that entrapment as such is not a general defect.
Carrothers, J.A. agreed with each Mr. Justice Taggart and Mr. Justice Seaton.
The four British Columbia judges before whom the matter has come have been unanimous in concluding that, on the facts, the defence of entrapment does not arise. It does not seem to me to fall to this Court to retry the case and arrive at different findings.
I would therefore dismiss this appeal.
The following are the reasons delivered by
RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Court of Appeal of British Columbia affirming the conviction of the appellant at his trial before Judge McGivern on two charges of trafficking in cocaine. The first charge was laid against Amato alone, but the second charge for the same offence which was allegedly committed ten days later was also laid against one June Lee.
The transactions which are the subject of these two counts formed a part of a sequence of events which was put in motion by one Don Langvin, a police informer, who had a drug related criminal record and who was employed by the police in this instance in furtherance of a scheme to locate sources from which drug traffickers were able to obtain their supply. The device adopted to this end was to instruct Langvin, who was then acting under an R.C.M.P. undercover officer named Godwin, to ferret out the required information. Langvin proceeded to obtain an introduction to the appellant through one Andre who employed Amato as a hairdresser. Langvin thereafter posed as one in need of drugs and requested the appellant to obtain some for him. Amato at first refused to have anything to do with the proposition saying in effect that he was just a simple hairdresser and
[page 467]
knew nothing about drugs in any way; however, after a series of telephone calls and visits to his place of work, Amato was persuaded by Langvin to obtain a gram of cocaine which he did by contacting his former mistress, June Lee, who appears to have had the necessary contact with drug sources and who was thus able to produce the small amount of cocaine. This first transaction forms no part of the charges against Amato but it turned out to be only the beginning of repeated pestering by Langvin seeking further drugs from Amato. Thenceforth Amato was constantly bothered by telephone calls at his home and visits at his place of business by Langvin all of which were directed to soliciting further drugs from Amato. Amato finally succumbed to the pressure being exerted on him and arranged for another delivery. It was at this point that the undercover policeman, Godwin, entered the picture; he was introduced to Amato and after more pressure had been exerted over the appellant, a meeting was arranged for delivery of a further supply of cocaine. This transaction was the subject of the first charge against the appellant but the undercover policeman there-after played a more prominent part and, posing as one who had friends coming to town the next day who were important in the drug trade in the U.S.A. and were in need of an immediate delivery of drugs which they were prepared to obtain by violence, that he finally induced the appellant to obtain a further supply of cocaine and in this case the transaction was completed by payment by Godwin to Amato and thence to Miss Lee.
It should be stressed that the record does not disclose any wrongdoing by the appellant either through dealings in drugs or otherwise until he was approached by Langvin and that his association with this character was purely as a friend of his employer (Andre). All the drug dealings involving the appellant were prompted and solicited by Langvin and later by Godwin and, as I have indicated, it is plain to me from the record that the course of events was instigated and carried forward at the direction of the police for the purpose of locating drug sources and that the involvement of the appellant was simply an incidental factor necessarily employed by the police in order to
[page 468]
achieve their objective. At the trial before McGivern J., Langvin was not called as a witness by either the Crown or the defence and as to this circumstance the learned trial judge observed:
In the present case, the Crown was unable to produce the witness who originally arranged for the undercover officer to meet the accused, Amato. His evidence would have been extremely useful to assist me in making my determinations of fact. He could have corroborated the evidence of the Crown or he could have corroborated the evidence of the Defence. I believe he should have been called by the Crown. His absence has restricted the Defence from making a full answer in defence to the charge.
I am satisfied that in fairness to the accused I must presume that he would have given evidence consistent with that given by the Defence. For that reason, I am prepared for the sake of these reasons for judgment, to assume that the findings of fact ought to be made on the basis of the evidence tendered by the Defence. The accused, Amato, testified that he was induced and persuaded by his former boss and the Police informer to obtain some cocaine. After several months of requests, and in an attempt to befriend the Police informer, Amato arranged for some cocaine through the accused, Lee. He also said that he had to persuade her to go along with the deal. The second transaction took place involving a half ounce of cocaine. At this time the accused, Amato, believed he was assisting his friend who was a Police informer. He only wanted to help a friend, the deal was arranged. The undercover Policeman arrived on the scene and after some time Amato was persuaded to go along with the sale to the undercover Policeman rather than to his friend, the informer.
Against the above background I am prepared to adopt the analysis of the facts contained in the judgment of Mr. Justice Taggart in the Court of Appeal:
Very briefly, the facts are that the Appellant was asked by his then employer if he could find some cocaine for a friend of his, that is to say of the employer's. The Appellant then and throughout the time that he had to do with the undercover police officer and the informer expressed no interest in accommodating them and it was only by virtue of the persuasion of his employer in the first instance and of the informer and the undercover police officer thereafter that the Appellant eventually agreed to provide a source of cocaine.
There were three transactions, the first of which did not result in a charge being preferred against the Appellant.
[page 469]
That first offence was of a relatively small amount of cocaine which after a great deal of solicitation on the part of the informer the Appellant agreed to procure. He procured it through the medium of June Lee who herself obtained it from other persons. The first transaction was accomplished by the Appellant going to the house of Lee and there obtaining and paying for the cocaine with money which had been provided to him by the informer. He then took the cocaine to the informer and delivered it over to him. The informer in turn turned it over to his contact in the police force.
On the second occasion which gave rise to the first of the two charges against the Appellant, a substantially larger amount of cocaine was involved and the undercover police officer appeared on the scene with the informer. Substantially the same procedure was adopted on this occasion as the first occasion.
The third transaction did not involve the informer at all, but only the undercover police officer. On this occasion a yet more substantial amount of cocaine was involved and on this occasion the undercover police officer accompanied the Appellant to the house of Lee where the money was handed over and the cocaine provided directly to the undercover police officer. On each of these occasions there was a considerable amount of importuning on the part of either the informer or the undercover police officer or both.
It was submitted on behalf of the appellant, both at trial and on appeal, that the above circumstances were such as to justify him in invoking the defence of entrapment if indeed such a defence is recognized in Canadian law. Both courts below, however, held that the circumstances which I have outlined did not constitute entrapment and that in any event entrapment does not constitute a defence to a criminal charge in Canada. It is these two findings which form the basis of the grounds of appeal to this Court which are described as follows in the factum filed on behalf of the appellant:
(i) Whether the Court of Appeal erred in ruling that the conduct used by the police in this case directed at instigating and procuring the commission of a criminal offence by the accused did not in law constitute an entrapment or an abuse of process?
(ii) Whether the Court of Appeal erred in ruling that entrapment does not constitute a defence to a criminal charge?
[page 470]
(iii) Whether the failure of the Crown to call the undercover police agent, Donald Langvin, or procure his attendance at the trial restricted the accused from making a full answer and defence to the charges and thereby constituted an abuse of process for which the proceedings ought to have been stayed?
As will hereafter appear the defence of entrapment has been recognized in a number of cases in the Supreme Court of the United States, but it is categorically denied by the courts in the United Kingdom as going to the guilt or innocence of the accused, although some consideration may be given to it in regard to sentence. This is made plain in the following passage from a judgment of Lord Chief Justice Widgery in R. v. Mealey and Sheridan (1974), 60 Crim. App. R. 59, at p. 62, where he says that it is
... quite clearly established that the so-called defence of entrapment, which finds some place in the law of the United States of America, finds no place in our law here. It is abundantly clear on the authorities, which are uncontradicted on this point, that if a crime is brought about by the activities of someone who can be described as an agent provocateur, although that may be an important matter in regard to sentence, it does not affect the question of guilty or not guilty.
In the same case Lord Widgery observed that a policeman
... must endeavour to tread the somewhat difficult line between showing the necessary enthusiasm to keep his cover and actually becoming an agent provocateur, meaning thereby someone who actually causes offences to be committed which otherwise would not be committed at all.
The approach in the United States stems from a judgment of the Supreme Court in Sorrells v. United States (1932), 287 U.S. 435, where an undercover police agent posing as a tourist induced a local resident to obtain liquor for him, and Chief Justice Hughes, speaking for the majority, after discussing entrapment as a defence, went on to say at p. 442:
A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.
[page 471]
These observations were expressly affirmed in the Supreme Court in Sherman v. United States (1958), 356 U.S. 369 and in United States v. Russell (1973), 411 U.S. 423, in the latter of which cases Mr. Justice Rehnquist expanded on the reasoning for recognizing the limitations of the defence of entrapment when he said, at p. 434:
Nor does it seem particularly desirable for the law to grant complete immunity from prosecution to one who himself planned to commit a crime, and then committed it, simply because government undercover agents subjected him to inducements which might have seduced a hypothetical individual who was not so predisposed.
The latter quotation indicates the different approaches adopted in the United States to the validity of the defence of entrapment where opportunity to commit a crime has been presented to an accused by the police.
If it be shown that an accused's character or record was such that he might have been predisposed to committing such a crime as is alleged and that he merely took advantage of the opportunity created by the undercover organization of the police to commit the crime, he is obviously under these circumstances not entitled to rely on the defence of entrapment in the same way as one whose record and character are free of blemish and who can show that his involvement with the crime was devised through the "creative activity" of an agent provocateur.
Although there is no authoritative judgment in Canada wherein it has been found that the facts support a defence of entrapment, there are nonetheless a number of cases in which the elements of such a defence are discussed. These cases are extensively reviewed by Laskin, C.J. in Kirzner v. The Queen, [1978] 2 S.C.R. 487, where it will be seen that the weight of authority is to the effect that in a case where the evidence discloses that the crime in question would not have been committed save for the "calculated inveigling or persistent importuning" of the police it may then be apparent that it was the creative activity of the police rather than the intention of the accused which gave rise
[page 472]
to the crime being committed. In such event the essential element of mens rea would be absent and the accused's defence would be established.
The Canadian approach to the defence is best illustrated in the case of Kirzner, supra, where the Chief Justice made the following statement at p. 494:
The problem which has caused judicial concern is the one which arises from the police-instigated crime, where the police have gone beyond mere solicitation or mere decoy work and have actively organized a scheme of ensnarement, of entrapment, in order to prosecute the person so caught. In my opinion, it is only in this situation that it is proper to speak of entrapment and to consider what effect this should have on the prosecution of a person who has thus been drawn into the commission of an offence.
It was contended in the present case that Amato was subjected to a threat of violence against himself if he failed to cooperate with the police plan for procuring the drug. If this had in fact been the case I am satisfied that it might well have supported a defence of entrapment, but a careful study of the evidence fails to disclose to me that there was any such threat although the police officer who was allegedly seeking drugs for some "strong arm" operators from the United States did make mention of the fact that they carried firearms and this apparently made Amato nervous.
Whether the activities of the police can be said to have amounted to the "calculated inveigling or persistent importuning" by the police mentioned by Mr. Justice Laskin (as he then was) in R. v. Ormerod, [1969] 2 O.R. 230, at p. 238, must depend on the facts of each case and in the present case, although drug transactions were suggested to Amato by an agent provocateur, this is not of itself enough to invoke the defence of entrapment or to affect the fact that Amato must have known that what he was doing was wrong.
In the case of Lemieux v. The Queen, [1967] S.C.R. 492, Lemieux was charged with breaking and entering a dwelling house where the police had secured the consent of the owner and had lured the accused into participating in the break-in. Here
[page 473]
there was mens rea but the accused was ultimately acquitted in this Court on the ground that the owner having consented there was no actus reus. In the course of his reasons for judgment which were delivered on behalf of this Court, Mr. Justice Judson said, at p. 496:
Had Lemieux in fact committed the offence with which he was charged, the circumstance that he had done the forbidden act at the solicitation of an agent provocateur would have been irrelevant to the question of his guilt or innocence. The reason that his conviction cannot stand is that the jury were not properly instructed on a question vital to the issue whether any offence had been committed.
These remarks have been widely characterized as obiter dicta but while it is true that they were not necessary to the determination of that case, I prefer to regard them as support for the proposition that the mere fact that the crime was committed at the "solicitation" of an agent provocateur does not, standing alone, support a defence of entrapment.
In my view it is only where police tactics are such as to leave no room for the formation of independent criminal intent by the accused that the question of entrapment can enter into the determination of his guilt or innocence.
It was further contended in the present case that the failure of the Crown to call the agent provocateur, Langvin, as a witness resulted in the accused being unable to cross-examine him and to thus being denied the right of making full answer and defence to the charges. The appellant characterized this method of conducting the case as being an abuse of process which should have resulted in the proceedings being stayed. In my opinion, the failure to call Langvin, who was apparently unavailable to both parties, did not amount to an abuse of process; not only does the evidence not disclose any such abuse, but no such question arises in the present case because of the finding made at trial that any disadvantage to which the defence might have been subjected by the absence of Langvin did not affect the trial judge's being "prepared for the sake of these reasons for judgment, to assume that the findings of fact ought to
[page 474]
be made on the basis of the evidence tendered by the Defence". This finding in my view mitigates against any conclusion that Langvin's absence from the stand can be characterized as having resulted in any disadvantage to the accused which could justify a finding of "abuse of process" with an accompanying stay of proceedings.
For all these reasons I would dismiss this appeal.
Appeal dismissed, LASKIN C.J. and ESTEY, MCINTYRE and LAMER M. dissenting.
Solicitor for the appellant: Sydney B. Simons, Vancouver.
Solicitor for the respondent: R. Tassé, Ottawa.