Focus On

Defences - Entrapment

Thursday, January 26, 2017 @ 7:00 PM  


Appeal by the Crown from a stay of proceedings on the basis of entrapment. After receiving a tip from a confidential informant that the respondent, a licensed firearms dealer, was selling firearms to individuals who did not have the required licence, an undercover officer, posing as a hunter, went to the respondent’s hunting and fishing supplies store, posing as a hunter. Although informed by the officer that he did not have a licence, the respondent sold the officer a hunting rifle. The trial judge concluded that the Crown was required to prove on a balance of probabilities that the police had a reasonable suspicion that the respondent was engaged in criminal conduct when the undercover officer provided him with the opportunity to commit a crime. The trial judge accepted that the police believed that they had a reasonable suspicion that the respondent was engaged in criminal activity based on the information they had obtained, but she found that she was unable to determine whether the suspicion was objectively reasonable. The trial judge then stayed the proceedings on the basis that the police had engaged in random virtue-testing.

HELD: Appeal dismissed. The trial judge did not misapprehend the legal test for entrapment. In light of the proven facts, the Crown failed to establish that the police had a reasonable suspicion that the respondent was already involved in criminal activity when the undercover officer provided him with an opportunity to commit a crime. Even though the trial judge misspoke when she said the burden of proof shifted, it did not vitiate the essential conclusion that the Crown had an evidentiary burden that it failed to meet in terms of establishing reasonable suspicion or a bona fide inquiry. Reasonable suspicion had to exist when the officer asked the respondent to sell him a rifle and he made it clear that he did not have a licence to purchase firearms. There was no evidence that, at this point, the information regarding the respondent’s alleged criminal activity was possibly reliable, nor was there any information as to any temporal connection between the information provided by the informant as to criminality and when the criminality occurred. The trial judge correctly set out the law on reasonable suspicion and correctly applied the standard of proof to the facts when she concluded that the Crown had not established that the police had a reasonable suspicion the respondent was already engaged in criminal activity when they targeted him. The proof of entrapment brought the administration of justice into disrepute, thereby disentitling the state to a conviction.