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Lecture

January 20 Lecture

5 Pages
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Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
William Watson

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WDW325H1 January 20, 2011 Abuse of Process Lecture
2
Abuse of Process: Two Types
Entrapment, Prosecutorial abuse of process
General rule: courts have the power to prevent the misuse of its procedure in a way that would a) be
unfair to the accused or b) bring the administration of justice into disrepute
Section 7 of the Charter
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice
RECALL
1. Imprisonment is a deprivation of liberty right
2.Laws or conduct is only illegal if it is not in keeping with the principles of fundamental justice;
-principles of fundamental justice include trial fairness and fair play within the system
Entrapment
-basic argument: but for the police, I would not have committed this crime
-problem with argument; still committed the actus reus with the requisite mens rea
-abuse of process for the police to entrap people into committing criminal offences
Entrapment - R v. Amato (1982 SCC)
FACTS: Mr Amatos manager had a friend (Don) looking for cocaine, Amato said he could not help. A few
days later Don called Amato; Amato said he did not know where to get drugs. Amato got a new job; Don
called there asking Amato for drugs and continues to call 15-20 times over 3 months. Amatos ex-
girlfriend agreed to sell Don 1gm of cocaine, Amato facilitated exchange. Eventually sold ½ ounce of
cocaine for $1100.
But: Don was actually a police informer with a drug-related record who was paid to introduce police to
traffickers; Godwin was a police officer and Dons handler. After the $1100 deal, Don and Godwin put on
pressure for more and more drugs. Amato said Look, I am not a dealer. As far as Im concerned Im not
doing this voluntarily.. Im into this predicament because Ive been pushed this far.. as soon as this is over
I dont want to see any of the both of you again
-Godwin calls 7-8 times in one day, was told he would be attacked, produced more drugs
Trial judge/BCCA evidence falls short of entrapment, BCCA suggested that entrapment should
not be a defence but should mitigate sentence (UK approach)
ISSUES: should entrapment be a defence? S.7(3)
-common law defence, controls against overzealous law enforcement that leads an innocent person to
commit crime
2) What constitutes entrapment?
US approach: 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.
Canadian Approach: to constitute entrapment
a)Scheme must originate with police
b)Purpose to obtain evidence of crime not committed
c)So shocking and outrageous to bring administration of justice into disrepute
3) What is the appropriate remedy? Options:
a) dismissal of charges/acquittal
b) quash the charges (charges were invalid from the beginning)
c) stay the prosecution (no longer entitled to have a trial)
Chose Stay of Proceedings
-not an acquittal, finding that crown is not entitled to conviction
www.notesolution.com
-crown forfeits right to trial because of their conduct or conduct of police
-only available in the clearest of cases where compelling an accused to stand trial would violate the
communitys sense of fair play and decency and to prevent the abuse of the courts process through
oppressive or vexatious proceedings
(R. v. Young)
-the test for proving entrapment is quite difficult to meet because of the severe remedy
Was Amato entrapped? No; solicitation by a state agent is not sufficient, persistent solicitation is not
enough, police action must be so shocking as to bring the administration of justice into disrepute
R. v. Mack (1988 SCC)
FACTS: Momotuik was a drug dealer in Ontario, brought to Vancouver to act as a police agent. Mack was
a former drug user and dealer who had given up drugs. Momotiuk called Mack a number of times to get
involved in large scale importing and Mack refused. Momotuik approaches Mack again, he went for a
walk, produced a gun and said someone could get lost and Mack agreed to get involved. Obtained a
sample of cocaine, Momotuik tested it and told Mack to get as much as he could; Mack tried to get a pound
but only got 12oz ($27000), charged and argued he was entrapped.
Test for Entrapment: a) police provide an opportunity to commit an offence without
acting on a reasonable suspicion that this person is already engaged in criminal activity or
pursuant to a bona fide inquiry OR b) police have a reasonable suspicion or are acting in the
course of a bona fide inquiry but they go beyond providing an opportunity and induce the
commission of an offence
Method A)
-police are not allowed to randomly approach people and get them to commit offences: random virtue
testing
-if they dont have a reasonable suspicion that the person is involved and they pursue them, it is
entrapment
-they may get information that causes them to start a police investigation to test the waters, which is not
random virtue testing
Method B)
-if they go beyond an opportunity to commit an offence and actually induce them to commit the crime, it is
entrapment
-asking to sell drugs is presenting an opportunity but is not inducement, and is not entrapment
R. v. Mack
-culpability is not the issue (actus reus and mens rea exist)
-focus on police conduct and effect of police conduct on accuseds state of mind
-consider what the average non-predisposed person would do; not what accused would do
-no random virtue testing allowed
-the test of whether it is providing an opportunity or inducement focuses on an objective test; whether a
reasonable person would commit the same offence as a result of certain conduct
-it does not matter if the person has criminal records for the same offence, it only matters if a reasonable
person would do the same thing
Factors to be considered:
a) type of crime
b) availability of other techniques police must be able to match ingenuity of criminal but must also use
other available techniques before entering the fray’ (police should be equally creative/scheming as
criminals are but no greater police caused person to be induced after their initial negative answer)
c) persistence of police
d) type of inducement used by police (fraud, deceit, trickery, reward, threats)
e) timing of police conduct (when in the lifespan of the criminal activity did the police get involved, how
long did it take to get the person to be induced)
www.notesolution.com

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Description
WDW325H1 January 20, 2011 Abuse of Process Lecture 2 Abuse of Process: Two Types Entrapment, Prosecutorial abuse of process General rule: courts have the power to prevent the misuse of its procedure in a way that would a) be unfair to the accused or b) bring the administration of justice into disrepute Section 7 of the Charter Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice RECALL 1. Imprisonment is a deprivation of liberty right 2. Laws or conduct is only illegal if it is not in keeping with the principles of fundamental justice; -principles of fundamental justice include trial fairness and fair play within the system Entrapment -basic argument: but for the police, I would not have committed this crime -problem with argument; still committed the actus reus with the requisite mens rea -abuse of process for the police to entrap people into committing criminal offences Entrapment - R v. Amato (1982 SCC) FACTS: Mr Amatos manager had a friend (Don) looking for cocaine, Amato said he could not help. A few days later Don called Amato; Amato said he did not know where to get drugs. Amato got a new job; Don called there asking Amato for drugs and continues to call 15-20 times over 3 months. Amatos ex- girlfriend agreed to sell Don 1gm of cocaine, Amato facilitated exchange. Eventually sold ounce of cocaine for $1100. But: Don was actually a police informer with a drug-related record who was paid to introduce police to traffickers; Godwin was a police officer and Dons handler. After the $1100 deal, Don and Godwin put on pressure for more and more drugs. Amato said Look, I am not a dealer. As far as Im concerned Im not doing this voluntarily.. Im into this predicament because Ive been pushed this far.. as soon as this is over I dont want to see any of the both of you again -Godwin calls 7-8 times in one day, was told he would be attacked, produced more drugs Trial judgeBCCA evidence falls short of entrapment, BCCA suggested that entrapment should not be a defence but should mitigate sentence (UK approach) ISSUES: should entrapment be a defence?S.7(3) -common law defence, controls against overzealous law enforcement that leads an innocent person to commit crime 2) What constitutes entrapment? US approach: 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. Canadian Approach: to constitute entrapment a) Scheme must originate with police b) Purpose to obtain evidence of crime not committed c) So shocking and outrageous to bring administration of justice into disrepute 3) What is the appropriate remedy? Options: a) dismissal of chargesacquittal b) quash the charges (charges were invalid from the beginning) c) stay the prosecution (no longer entitled to have a trial) Chose Stay of Proceedings -not an acquittal, finding that crown is not entitled to conviction www.notesolution.com
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