WDW101Y1 Lecture Notes - Fide, Mens Rea, Trial

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2 Feb 2013
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JAN, 17TH 2013
WDW325 Lecture 2
Abuse of Process
Criminal trial: Judge, black robe red sash “Your honor”
Justice of the Peace (JP): No legal training is requires, appointed
- Remand court, black robe green sash, they have a limited number of things to do in
the justice system, ie, remand court “Your worship”, can reside over bail hearings,
has the power to issue search warrants
- Remand: one your release has been determined, the next place that the case will go
is Remand
- There are limits to what one can and cannot do from conduct that can be abusive in
the justice system
Abuse of process 2 Years
- Police Abuse of Process (entrapment)
- Prosecutorial Abuse of Process
Courts can act to prevent the misuse of its process
a. be unfair to the accused (fairness prejudice) OR
b. bring the administration of justice into disrepute (integrity prejudice)
Courts must step in if the circumstances violate sense of fair play or are
oppressive/vexatious (don’t allow conduct that is abusive)
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
1. Imprisonment is a deprivation of liberty right
2. Law/conduct violates s.7 IF AND ONLY it is inconsistent with the “principles of
fundamental justice” (includes trial fairness)
- We don’t want police to be creating crimes and criminals
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
Nonetheless, it is an abuse of process for the police to entrap people into committing
criminal offences
R. v. Amato (1982), S.C.C.
FACTS: Mr. Amato’s 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
Don called him 15 20 times over 3 months
Amato’s 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 who was paid to introduce police to traffickers;
Godwin was a police officer and Don’s handler
JAN, 17TH 2013
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 I’m concerned I’m not doing this
voluntarily…I’m into this predicament because I’ve been pushed this far…as soon as this is
over I don’t want to see any of the both of yous again.”
Godwin calls 7 or 8 times in one day –he had people who were “expecting” drugs
Godwin told Amato he would protect him; had guns for protection; also Amato if he did not
come up with the drugs, his people would “come looking for him”
Came up with 2 ½ ounces of cocaine -- ARRESTED
Trial judge/B.C.C.A. evidence falls short of entrapment; B.C.C.A. suggested that
entrapment should not be a defence but should mitigate sentence (U.K. approach)
(1) Should entrapment be a defence -- s. 8(3)?
Common law defence
Controls against overzealous/over excited law enforcements that leads an
innocent people to commit crime
(2) What constitutes entrapment?
U.S. approach
criminal design originates in the mind of the government officers
use persuasion, deceitful representation, or inducement to lure the accused
into the commission of a criminal act
the government is estopped (prohibited) from prosecution
Canadian approach
scheme must originate with police
purpose to obtain evidence of crime not committed “info about a future
bring the administration of justice into disrepute
- The criminal design/plan had to originate from a government official, have to use
persuasion, deceit or inducement to commit the criminal offence, the government
prohibit the right to proceed trial
(3) What is the appropriate remedy?
dismissal of charges acquittal
quash the charges
stay the prosecution
Not an acquittal
Finding that Crown is not entitled to conviction
Crown forfeits right to trial because of the conduct of police
“clearest of cases” where compelling accused to stand trial would violate the …
community’s sense of fair play and decency or to prevent the oppressive or vexatious
proceedings (R. v. Young)
(4) Was Amato entrapped? NO
Solicitation by a state agent is not sufficient (asking someone to commit an
offence is not entrapment)
JAN, 17TH 2013
Persistent solicitation is not enough
Police action must be so shocking as to bring the administration of justice
into disrepute
R. v. Mack (1988, S.C.C.)
- 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; had given up drugs
- Momotuik called Mack a number of times to get involved in large scale importing;
Mack refused
- Momotuik approach Mack again; went for a walk; produced a gun and said
“someone could get lost”; 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 12 oz ($27,000)
- Charged and argued he was entrapped
(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 without acting
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
R. v. Mack
culpability is not the issue (actus reus and mens rea exist and can be proven)
focus on police conduct and effect of police conduct on accused’s state of
consider what the average non-predisposed person would do not what
accused would do
no random virtue testing allowed
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”
(c) persistence of police
(d) type of inducement used by police (fraud, deceit, trickery, reward, threats)
(e) timing of police conduct
(f) exploitation of human emotions/vulnerable people
(g) infringement of other Charter values
Judge decides, not jury (even if it’s a judge jury situation)
Raised after all elements are proved (which the jury will decide)
Stay of proceedings entered INSTEAD of conviction
Accused still entitled to acquittal if Crown cannot prove actus reus and mens