Entrapment or the rule against entrapment is a limit on how police conduct their investigations. Police can entrap someone in one of two ways: (1) police will entrap someone if they offer that person an opportunity to commit an offence when police do not have reasonable suspicion that the person is currently committing that offence and (2) even if police have reasonable suspicion, they cannot induce someone to commit an offence. These two types of entrapment flow from the fundamental concerns that police should not be in the business of creating crime either by randomly virtue testing people they do not suspect are involved in crime or by strongly encouraging people to commit crimes.
The defence of entrapment works differently than most other legal defences
Entrapment does not function like other legal defences in two ways. First, the accused person bears the burden of proving that they were entrapped on a balance of probabilities. This means that an accused must prove it is more likely than not that the police entrapped them in either of the two ways just noted. For other legal defences, like self-defence, the accused only needs to raise an “air of reality” which is the same as a reasonable doubt about whether the defence applied.
Second, where an accused succeeds in proving they were entrapped, the defence does not function quite the same as other defences. If an accused successfully raises a defence like self-defence (which is a justification or excuse for otherwise illegal action) or mistaken identity (which raises doubt about an essential element of the offence) then they are entitled to a “not guilty” verdict, which is also known as an acquittal. By contrast, a successful claim of entrapment results in a stay of charges. This is because entrapment is state misconduct, and it would be unfair to convict someone that was only charged in the first place because of that misconduct. Importantly, this means that an accused can argue they were entrapped, even after they have been found guilty of the offence.
Why do we need a rule against entrapment?
Some types of crime present police with unique investigative challenge. Offences like drug trafficking are particularly difficult for police to discover because all the participants are interested in the crime taking place and try to conceal their criminal activity from outsiders. Compare this to crimes that involve violence or damage or theft of property, which often leave behind physical evidence or victims or other witnesses who call police. Drug trafficking and also some kinds of internet crimes or sexual offences like child luring do not generate this kind of evidence or (in the case of child luring only after it is too late).
To meet these investigative challenges, police have various tools at their disposal including recruiting of confidential informants and police agents and the use of undercover operations.
The rule against entrapment protects against certain kinds of police misconduct that are prone to happen during undercover police operations. Thus, the rule must strike a balance between the legitimate needs of police and the equally important need to prevent police from randomly virtue testing the public or inducing people to commit crime.
What is reasonable suspicion?
“Reasonable suspicion” is a legal term of art that means that a police officer has reasonable grounds to believe there is a possibility of crime. The “reasonable” in reasonable suspicion requires that police officers can point to objective facts (as opposed to their own subjective beliefs) to support the possibility of crime. Thus, the reasonable suspicion standard requires more than a purely subjective “mere suspicion” or a hunch. That said, reasonable suspicion is a lower standard than reasonable and probable grounds standard used for search warrants and arrests. Reasonable suspicion deals with the possibility of crime while reasonable and probable grounds deals with the probability of crime.
If the distinctions between mere suspicion, reasonable suspicion and reasonable and probable grounds seems a bit thin, they are. In practice, the dividing line between the two legal standards is not easy to draw, nor is it easy to say when a hunch supported by an officer’s training and experience becomes reasonable suspicion.
1. Entrapment by offering an opportunity
If police offer an opportunity to commit an offence to someone without having reasonable suspicion, then that person is entrapped if they accept the opportunity (if they refuse the opportunity then there would be no charges and the case would never make it to court).
In this situation courts will commonly say that the police have engaged in “random virtue testing.” The problem of random virtue testing is that nobody (virtuous and vicious alike) should be offered the opportunity to commit an offence purely at random. The police must have reasonable suspicion that the person is already committing the kind of offence the police will offer them the opportunity to commit before they offer it. Thus, if a police officer forms “reasonable suspicion” that a person is importing narcotics, the police cannot then provide an opportunity for that person to participate in illegal gambling.
As noted above, reasonable suspicion is not easy to identify, nor is it always easy to say what counts as an opportunity. Reasonable suspicion will always depend on the specific facts of the case and “opportunity” can depend on the specific words police used.
Bona Fide Inquiries –reasonable suspicion in a place instead of a person
Police do not always have to have reasonable suspicion that a person is engaged in a certain kind of crime based on information about that person. Sometimes police can have a reasonable suspicion about a person based on a reasonable suspicion that crime is happening in a place. Where this happens, police can offer opportunities to anyone in that place because they are carrying out a “bona fide inquiry” (bona fide is just Latin for “good faith”).
Reasonable suspicion in a place is necessary for a bona fide inquiry, but it may not be sufficient. Our Supreme Court has recently directed that trial judges should consider other factors including how the place itself was defined when deciding whether an investigation was bona fide. If there is a bona fide inquiry, police do not need to have reasonable suspicion over any particular person in that place before offering them an opportunity to commit an offence.
2. Entrapment by inducing the commission of an offence
Even if police have reasonable suspicion, entrapment may still occur if a state agent induces the commission of the offence rather than simply providing an opportunity to commit an offence. To determine whether inducement occurred, a court will look at a variety of factors, including the following:
- The type of crime being investigated and whether techniques other than entrapment were available to detect the crime
- Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime
- The persistence and number of attempts made by the police before the accused agreed to committing the offence
- The type of inducement used by the police including: deceit, fraud, trickery or reward
- The timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity
- Whether the police conduct involves exploitation of human characteristics such as the emotions of compassion, sympathy and friendship
- Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction
- The proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves
- The existence of any threats, implied or express, made to the accused by the police or their agents; and
- Whether the police conduct is directed at undermining other constitutional values
Entrapment is a powerful defence, but it is also a highly technical one that can be difficult to establish. It is always a good idea to consult a lawyer if you have been charged with a criminal offence to understand what defences are available in your particular situation.
This blog is not intended and does not constitute legal advice. Instead, it provides some preliminary, legal information about entrapment. If you’ve been charged with a criminal offence, contact one of our experienced criminal defence lawyers today.