LECTURE 2: ABUSE of TRIAL PROCESS
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
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
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
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
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
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.
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)
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
Acts as a control over Police misconduct/ that goes too far.
What constitutes entrapment?
Criminal design ( criminal plan) originates in the mind of the
It involves persuasion, deceit, or inducement intro commission of the
Then the government is estopped from persecution
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?
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
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
Finding that crown is not entitles to conviction independent of the
facts of the case regardless of evidence to prove Actus rues and mens
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?
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
R v. Mack ( 1988, SCC)
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
- 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
They may be suspicious but can't do more than present the