WDW325.JAN20.docx

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Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
Dena Demos

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- Quiz next week - Tutorial assignment due next week ABUSE OF PROCESS - 2 types o Entrapment o Prosecutorial abuse of process - GENERAL RULE: courts have the power to prevent the misuse of its procedure in a way that would o Be unfair or the accused; OR o Bring the administration of justice into disrepute - Anything conduct or misconduct on part of state actor either relates to profound unfairness to accused or admin of justice into disrepute is an abuse of process - Abuse processes on part of the police (entrapment), crown (prosecutorial abuse of process) - What are the limits of control on how state actors due their job in admin of justice, e.g. charter limits police activity - Originally this was a common law doctrine (offences have to be codified) 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 excepti in accordinace with the principles of fundamental justice - RECALL 1) Imprisonment is deprivation of liberty right 2) Laws or conduct is only illegal IF it i not in keeping with the “principles of fundamental justice” - POJ of fundamental justice includes trial fairness - Any offence that has a threat of emprisonment violates section 7, but the POFJ saves it, IF BOTH are violated than it is shot down - POFJ includes principles of fair trial rights, and the notion of fairplay in the system, the requirement that people conduct themselves in a fair manner in the adversarial system e.g. crowns can’t cheat as a result of section 7 ENTRAPEMENT - Basic argument –“but for police, i would not have committed this crime” - Problems with this argument –still committed the actus reus with the requisite mens rea, by the time you argue entrapment theres no doubt you committed the offence and likely had the intent and knowledge required for the mes rea, but just have the additional argument that the state made me commit the offence, usually we deal with an explanation of why people commit and offence at the sentencing stage (e.g. mental illness, or other mitigating factors to reduce sentence...don’t give free passes) - Abuse of process for the police to entrap people into committing criminal offences - Unfair for police to manufacture crime and make people commit crimes that people otherwise would not have committed, offends society’s sense of justice if police were able to control and affect people to commit crimes they woudlnt’ have and they get commited - The crown has come down to say that it IS an offence, not a free pass - Constitiute as a abuse of process under section 7 for police to entrap R. v. Amato (1982) S.C.C. (pre charter case) 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 go t anew job; Don called there asking Amato for drugs. Don called him 15-20 times over 3 months. Amato’s ex gf agreed to sell Don 1 gm of cocaine; Amato facilitated exchange. Eventually sold ½ ounce of cocaine $1100. BUT Don was police informant, with drug-related record who was paid to introduce police to traffickers’ Godwin was a police officer and Don’s handler after the $1100 deal, Don and Godwin put on pressure for more and more drugs. Amato said “Look, I am not a deal, im doing this voluntariy, dont’ want to have anything tod eal with you. Godwin calles Amato 7-8 times a day, suggests protection because people are after him if he doesn’t come up with the drugs ,had had people who were expecting drugs, Godwin would protect him - Trial judge/B.C>C>a – evidence fall short of entrapment’ BCCA suggested that entrapment should not be a defence but should mitigate sentence (UK approach) ISSUES: 1) Should entrapment be a defence s. 7(3) - Common law defence; common law defences can exist, does not need to be codified like criminal code - Controls against overzealous law enforcement that leads an innocent people to commit crime - The real offence is the misconduct of the police, don’t want circumstance where we are allowing/encouraging/endorsing police misconduct by giving a small discount on sentence, if you get to the of demo entrapment that police have gone so far over the line the only appropriate method is terminating the trial, if you get the point of showing entrapment its so much more offensive to our sense of fairplay the only way to fix it is to terminate it. Have problems of mandatory sentencing, what if it was an offence that has mandatory minimum sentencing so you can’t get a discount for sentencing. Normally mitigating factors are specific to the accused not mistakes of the criminal justice system 2) What constitutes entrapment? - US approach –“when the criminal design oringates, not with th ecccused, but is conceived in the mind of the gov’t officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is stopped by sound public policy from prosetuion” ;1) police came up with criminal plan, 2) the accused was convinced/persuaded to commit offence by police...after establishing this two the government is prevented from prosecution - Canadian approach to constitute entrapment a) Sceheme must orginate with police; can’t be entrapped if you are already engaged in criminal conduct by the time you come into oncatct with police, police have to start the ball rolling for the criminal offene b) Purpose to obtain evidence of crime not committed; “manufacturing a crime” they weren’t investigate a crime, but trying to convince you to commit a crime that they can gather evidence for c) Conduct so shocking and outrageous to bring administration of justice into disrepute 3) What is the appropriate remedy? OPTIONS a) Dismissal of charges—acquittal; doesn’t really represent what happens in the case of entrapment, judicial finding that there is no actus reus and mens rea, but entrapment there is these two elements, would be distortion of legal principle if it was acquittal b) Quash the charges; means that charges that were invalid from the beginning, e.g. if police don’t have reasonable guards to investigate you in the first place...doesn’t apply because police does have reasonable guards etc. c) Stay the prosecution o STAY OF PROCEEDINGS  Not an acquittal  Finding that the crown is not entitled to conviction  Crown forfeits right to trial because of their conduct or conduct of police, no longer entitled to have a trial  Only available “in the clearest of the cases’’ –“where compelling an accused to stand trial would violate the...community’s sense of fair play and decency and to prevent the abuse of the court’s process through oppressive or vexations proceedings) (R. v. Young)  Because the remedy you get is absolute termination of case, we set the bar for entrapment is very high 4) Was Amato entrapped? - NO o Solicitation by a state agent is not sufficient; not enough to get an invitation by undercover police officer o Persistent solicitation is not enough; they have to do something that is shocking in terms of how they interact that pushes them over the line from persistent solicitation to entrapment and abuse of process o Police action must be so shocking as to bring the administration of justice into disrepute o 5/4 split in S.C.C. (usually sit either 9,7, or 5)...as close as you can get, reasonable judges can disagree of application of the law, they don’t disagree about what the law should be R. v. Mack (1988, SCC) FACTS: Momatuik was drug dealer in Ontario; brought to Vancouver to act as a police agent, Mack was a former drug user and dealer and had given up on drugs. Momtuik 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. Momotuik was acting under direction of police and as a result he becomes swept up in police rules, can’t just a drug dealer to do what police officers can’t do. 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; Police can’t randomly go to people to get them to commit crimes and arrest them, thats an abuse of process  random virtue testing if they don’t have any suspicion, they may get information that causes them in good faith to start police investigation, don’t know whose involved want to test the waters, need a creative way to test who will do it, if it is legitimate than it isn’t random virtue testing, OR b) Police have a reasonable suspricion or are acting in the course of a bona fide inquiry but they go beyond provide an opportunity and induce the commission of an offence; even if they have reason to believe, b
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