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Lecture 2

Lecture 2 - Abuse of Process.docx

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LECTURE 2: ABUSE of TRIAL PROCESS RECAP: 2 ways to establish entrapment: 1. Random virtue testing - no reasonable suspicion about the person or the place 2. Have reasonable suspicion but go beyond providing an opportunity Abuse of Process- 2 types Legal term for when court process is abused by one of the players  Entrapment : abusive process by police in investigation  Prosecutorial Abuse of Process  Other forms exist as well. General Rule: courts( trial judges) have the power to prevent the misuse of its procedure in a away that would: Be unfair to the accused  Want process to be fair - due process Bring the administration of justice into disrepute  Test that comes up  Don't want the process to impact the reputation of the process in general  Is now part of the section 7 of the charter Section 7: recall:  Imprisonment is deprivation of liberty  Laws or conduct is illegal if and only if it is inconsistent with the principles of fundamental justice  Every investigation and trial must be conducted in accordance with principles of fundamental justice  Principles of fundamental justice applies to crown conduct and state conduct as well as the law itself  P of F J - application to process and procedural law Entrapment:  Basic argument: but for the police, I would not have committed this crime  Required conduct on part of police which induces offender to commit the office, not to reveal commission of a criminal offence.  Unfair to let the police induce people to commit an offence and then to punish it  Problems:  Actus rues with the requisite mens reas are both proven. Must have proven the Actus Reus and Mens reas to use this defence  Abuse of process for the police to entrap people to commit a criminal offence R v. Amato (1982) Facts:  Set up an arrangement for sale 1.2 ounce of cocaine for 1100 after Don had constantly pressured him to find him drugs.  Don was an undercover informant. Goodwin was the officer who handled him. After the deal went through, Don and officer out more pressure on Amato to get them more drugs.  Told them he is not a dealer and for them to leave him alone. Goodwin started pressuring him and furthermore threatening him.  He gets more cocaine and is caught due to entrapment. Trial Judge:  BC court of Appeal as well  Evidence said that he falls short of entrapment  Entrapment is not a defence but may be a mitigating factor for lesser sentence ( follows UK approach as a sentencing principle) Issues: Should it be a defence s. 7(3) Common law defences in Canada. It is a full defence. Controls overzealous law enforcement that lead an innocent people to commit crime Acts as a control over Police misconduct/ that goes too far. What constitutes entrapment? US:  2 requirements: Criminal design ( criminal plan) originates in the mind of the government officer It involves persuasion, deceit, or inducement intro commission of the criminal act  Then the government is estopped from persecution Canadian Test:  Scheme must originate in the mind of the government officer  Purpose of the plan must be to obtain evidence of a crime not yet committed. Must not have already committed this offence before.  It must be so shocking and outrageous that it would bring administration of justice into disrepute. Would it tarnish the reputation of the criminal justice system in the eyes of the public if they knew about it. What is the approach remedy?  Options:  Dismissal of charges - acquittal since found not guilty  It is intellectually dishonest  Not the right remedy  Quash the charges  The charges are invalid from the beginning and therefore cannot be convicted  There is a valid reason for the charge so the analysis of entrapment is far off in the proceedings  Stay the prosecution  Not an acquittal  No adjudication  Finding that crown is not entitles to conviction independent of the facts of the case regardless of evidence to prove Actus rues and mens rea  Crown forfeits the right to trial because of the conduct of the police.  Only available in the clearest of the cases where compelling the accused to have a trial would violate our sense of decency and play ( fair and just criminal process) - R. v. Young Was Amato entrapped?  NO:  Solicitation by 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:  Mack was a ex-drug user and dealer  Momotuick, a drug dealer brought to BC to act as police agent who attempted to get him involved in large scale importation of drugs.  Momotuick threatened Mack who then agreed.  Sold 12 oz and was charged but argues he was entrapment  TEST: - Police must provide an opportunity to commit an offence without acting on a reasonable that this person is already engaged in criminal activity or without acting pursuant to a bona fide in inquiry.  Random virtue testing in entrapment when there is no reason to suspect criminal activity.  Police have reasonable suspicion o at acting in the course of a bona fide inquiry but they do beyond providing an opportunity and induce the commission of an offence.  They may be suspicious but can't do more than present the op
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