January 20 Lecture

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University of Toronto St. George
Woodsworth College Courses
William Watson

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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