A 19-year old boy, David, has bought tickets to a music festival. He is excited to go with his friends from school. They’ve all just finished their first year of university and want to celebrate during the summer. Someone in David’s group chat suggests they pick up some MDMA (Molly) to try. None of the group has done any drugs before, but they are considering experimenting. One of David’s friends buys the drugs and brings them to the festival.
At the festival, David’s friend leaves him with the drugs and goes to the washroom. David is left on his own. He relaxes and enjoys the weather. David looks around and sees an attractive girl around his age smiling at him. She walks over and starts talking to him. After some small talk, she asks David if he has any Molly. David is slightly put off, but he replies that he does. The girl says she forgot to bring hers and asks if she can buy a couple of tablets for herself and her friend. David says maybe later and looks to see where his friend went. The girl is insistent that she wants to feel good now and persists in asking for the drugs. David doesn’t put up a fight and agrees: he produces two tablets of Molly. The girl takes the drugs, gives David some money, and leaves. A couple of minutes later, David is arrested for the possession of drugs and the possessing drugs for the purpose of trafficking.
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David was clearly not a drug dealer or trying to sell drugs for any commercial gain. David was 19-years old. He had never used drugs in his life. He had no intention of selling drugs. He wanted to have a good time with his friends at the music festival. The attractive girl was one of several undercover cops who were approaching young boys to buy drugs. Even though he didn’t plan on selling drugs, David sold some drugs to her. As a result, he is now facing a criminal record for drug charges for the rest of his life.
BC is home to an impressive number of music festivals: Breakout, FVDED in the Park, Basscoast, Shambhala, Squamish, SKOOKUM. Every year, there are dozens of people like David who are arrested at music festivals. They generally fall prey to substantial undercover operations planned and executed by the police.
On the one hand, it is important to be careful and avoid putting yourself in such a situation. On the other hand, it may seem offensive that the police are using their extensive training and resources to approach and arrest kids at music festivals for selling drugs. What can David do now that he has been charged? Is the undercover operation legal?
What is Entrapment?
Entrapment, broadly speaking, is a defence available when a law enforcement officer induces someone to commit a criminal act, when that person would not have otherwise committed that act. Canada has adopted its definition from a US Supreme Court Case called Sorrells v United States (1932), where it defined entrapment as follows:
The conception and planning of an offence by an officer, and his or her procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.
Entrapment is not a substantive defence, but rather is related to preventing the abuse of process. Courts have the jurisdiction to “withhold its processes from the prosecution on the basis that such would bring the administration of justice into disrepute” (R v Amato, [1982] CarswellBC 661 (SCC) at para 68; R v Mack, [1988] CarswellBC 701 (SCC) at para 73). According to the Supreme Court of Canada, the concern is that the executive branch of government, through the deception and trickery of its officers, are abusing the legal process and the judiciary to obtain convictions. Allowing cases to be prosecuted based on evidence that was obtained in this manner would undermine the public’s confidence and faith in the criminal justice system. As a result, the remedy is generally a stay of proceedings.
The leading case on entrapment is the Supreme Court of Canada decision in R v Mack, [1988] CarswellBC 701. Mack establishes the defence of entrapment in Canadian law. Procedurally, entrapment is only raised as an issue after the Crown has proved its case beyond a reasonable doubt. This gives the accused a chance to be acquitted before raising the defence of entrapment. If the Crown does prove its case, then the burden of proof falls on the accused to prove entrapment on a balance of probabilities (Mack at para 166).
When Can the Police Entrap You?
First, the general rule from Mack is that the police can only provide an opportunity to a person to commit a crime when the officer has a reasonable suspicion that the person is already engaged in a particular criminal activity. In other words, officers cannot engage in “random virtue testing”. This is where an undercover officer—with no reasonable suspicion of criminal activity—will “test” a person’s virtue by giving them a clear opportunity to commit a criminal act, such as selling drugs. Without an existing and reasonable suspicion that you are engaged in selling drugs, for example, this testing is impermissible.
However, the exception is when the police are involved in a bona fide investigation where they reasonably suspect criminal activity is occuring (Mack at para 122; R v Barnes, [1991] CarswellBC 11 (SCC) at para 23). When there is such an investigation, the police can approach any person in the area with the opportunity to commit the particular offence being investigated. Moreover, BC Provincial Court has held that statistical evidence is not required to establish reasonable suspicion (R v Chu, 2009 BCPC 76 at para 28).
The police can therefore engage in random virtue testing in two situations:
The person is reasonably suspected to already be engaged in criminal activity.
The physical location is reasonably suspected to be a place where criminal activity is occurring.
However, even if either of these situations are met, a police officer still cannot go beyond providing an opportunity to commit a criminal act (Mack at paras 122-123). That is, they cannot go so far as to induce the criminal act. The SCC identifies several factors that can assist in determining when the police have crossed the line into inducing criminal acts. For example, the type of crime, the type of inducement used, the timing, the persistence, exploitation, proportionality, and whether an average person would be induced (Mack at paras 139-148).
Case law generally does not analytically go through every factor, but the factors in Mack underpin a judge’s decision. For instance, in R v El-Sheikh-Ali, [1993] CarswellOnt 4337 (Ont Ct J), the judge held that the undercover officer went too far in trying to lure the accused with a sexual relationship and deliberately presenting herself as a “sex object” (El-Sheikh-Ali at para 20). The timing of the inducement here was before the drugs were sold, the inducement used was clearly sexual, and there was persistence. Additionally, the accused was a vulnerable immigrant who had been divorced for six years. His ex-wife and two children were also barred from entering Canada from Lebanon, he therefore admitted to being lonely and looking for female companionship.
Despite the decision in El-Sheikh-Ali, suggestive or flirty behaviour by an undercover officer is generally permissible and not sufficient to constitute an inducement.
Another case in Ontario provides some clarification of when police go beyond providing an opportunity to commit a crime and into inducing the criminal act itself. In R v S (J), [2001] CarswellOnt 68 (Ont CA), some undercover officers approached some young concertgoers at a restaurant near the venue. The targeted youth was found to be naive, hesitant, and not selling for profit. He was hesitant and unsure of what to do with the requests to buy marijuana. He looked to his friends for support. He was found to have sold the drugs out of goodwill to a fellow concertgoer. It was found that he would not have sold the drugs if not for the officers’ persistent requests. The court held that the actions of the officers went beyond providing an opportunity to commit an offence and into inducing the commission of the offence.
Related: “I am Being Arrested By the Police. I Need to Speak to a Lawyer”
Entrapment at Music Festivals
The case law on entrapment at music festivals is limited. In R v MacLeod, 2011 BCSC 1812, the BC Supreme Court held that a music festival could be the subject of a bona fide inquiry. In other words, a music festival could be reasonably suspected of being a place where criminal activity is occurring, namely drug trafficking. In support of their decision, the court made an analogy to raves. They cited prior cases where sting operations were held at Pacific Coliseum during raves (R v Yee, 2009 BCPC 369; R v Chu, 2009 BCPC 76). In both those cases, the defence of entrapment was raised, and in both cases it was dismissed because the location was held to be the subject of a bona fide investigation.
Conclusion
The current law is not favourable to accused persons caught by these undercover operations. While entrapment is available as a legal defence, it is exceedingly difficult to prove. Generally, the police set up an investigation for criminal activity prior to executing their undercover operations. Since statistical evidence is not required, it can be easy for the Crown to prove that there is a bona fide investigation of criminal activity in a particular location.
Once an investigation has begun in a particular location, the police may legally pursue random virtue testing of any person in that location. The only limit remaining on the police is the grey area between presenting an opportunity to commit a crime and actually inducing the person to commit a crime. Case law suggests that only the more egregious examples of police conduct will result in the defence of entrapment being successful, such as offering sexual relations or browbeating a naive youth who had no prior intention to sell. It is unlikely that this breaches will be found in most cases, such as David’s above. In R v Chu, 2009 BCPC 76, the judge cited two cases where the officer’s persistence and dress, as well as the accused’s reluctance and lack of desire to sell were “not sufficient to support the claim of entrapment” (Chu at para 34). In these two cases, the undercover officers were at raves asking for ecstasy. In both cases, the accused acquiesced, sold to the officers, and the defence of entrapment was dismissed.
It may be helpful to try and distinguish a music festival from a rave, but MacLeod has held that a music festival can also be the subject of a reasonable suspicion of drug trafficking.
Of course, an individual’s circumstances may be so severe that the defence of entrapment becomes available. The Mack factors of when an officer’s conduct goes beyond providing an opportunity will have to be examined with respect to each case. However, in general, entrapment is a defence that will rarely be successful unless there is a substantial error by the police.
If you feel you have been entrapped by a police investigation please contact us for assistance.
