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Lecture 11

LAWS 2302 Lecture Notes - Lecture 11: Mental Disorder, Human Frailty, Partial Defence


Department
Law
Course Code
LAWS 2302
Professor
Michael Smith
Lecture
11

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Criminal Law March 23rd 2016
Entrapment
R. v. Mack- appellant was charged with possession of narcotics with intent to traffic.
Momotuik wasn’t a police officer, nut was a dealer who was working with the police.
Momotuik began a dialogue with Mack about buying drugs form him. This lasted for 6
months. Initially, Momotuik was continuously contacting Mack, with no success to buy.
At a yoga retreat together, 3 months in, they did a little bit of cocaine with each other.
Mack still refused to deal in drugs though. Mack even requested Momotuik to leave him
alone after he visited and called him many times after. During another interaction, near
the end of the 6 months, Momotuik showed him a gun during a conversation where veiled
threats were thrown at Mack. Mack felt threatened, so he did the deal out of fear and
getting Momotuik to leave him alone. When Mack was giving a full delivery to
Momotuik, he was arrested. From the persistence, and veiled threats, the defence argued
entrapment. Entrapment can be relative to police ‘agents,’ not just on the actual officer.
The crown argued there was only 1 kind of entrapment, which is from an objective
standard, asking if the police conduct was beyond what it acceptable. The defence argued
there is 2 kinds of entrapment, from an objective and subjective standard. This subjective
standard takes into account the pre-disposition of the individual to actually do the act.
The SCC sided with the crown, that it was only a policy defence. This policy aspect, at
the ignorance of the subjective standard, aims to limit state powers, so as to avoid an
abuse of powers. The state of mind was ignored, only looked to pressures and factors by
the police.
The accused has the onus to prove entrapment. It is a very difficult defence to prove
R. v. Barnes- question was if the individual was subject to random subject targeting. The
undercover officer looking to buy drugs, who approached on a ‘hunch’ (because of his
actions, clothing, her experience), asked a man and his friend for some marijuana. She
was initially turned down. On persistence, she bought some from him, and arrested him.
At face value, a hunch isn’t enough for a reasonable suspicion, it must be based on
reasonable factors as to the possibility. But, the court didn’t think so, stating the area in
which this took place in was enough to provide a reasonable suspicion (high drug crime
area). This is an issue, it supposes non-legal factors (ie minorities, low socio-economic
status) as possible reasonable suspicions
Entrapment is a common-law defence
Excluding evidence
If you are charged, but argue a Charter violation (ie illegal search and seizure), a solution
is to dismiss certain evidence, which could prompt an acquittal
It balances the rights of the accused, and the interests of the public. For the public, they
take into account its safety, its level of trust in the CJS if there is an acquittal, etc.
Even if the test is met for excluding evidence, there is still a weighing of interests
(between the accused and the public) which affects the decision
Mental Incapacity
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