Entrapment: Bringing the Administration of Justice into Disrepute? (Aliu Imoro v. Her Majesty the Queen)
September 29th, 2010
This November, the Supreme Court of Canada (SCC) will be revisiting the doctrine of entrapment in Aliu Imoro v. Her Majesty the Queen. The defense of entrapment claims that the defendant would not have broken the law if he or she had not been “tricked” into committing the offense by law enforcement officials. In Canada, the doctrine of entrapment has been refined by the SCC in three major decisions: R v. Amato,  2 S.C.R. 418 [Amato], R v. Mack,  2 S.C.R. 903 [Mack], and R. v. Barnes,  1 S.C.R. 449 [Barnes]. Currently, the doctrine of entrapment seeks to strike a balance between two objectives: 1) recognizing that police should have considerable leeway in the techniques they use to investigate criminal activity; and 2) recognizing that police power to investigate criminal activity cannot be untrammeled. 
In Mack at para. 119, Lamer J. identified two situations in which entrapment would arise:
There is, therefore, entrapment when:
(a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides, or
(b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
In Barnes, the first branch of the entrapment test as laid out in Mack was elaborated to define the contours of when an accused has been subjected to random-virtue testing. The majority of the court held that:
Random virtue‑testing only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:
(a) the person is already engaged in the particular criminal activity, or
(b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.
Although the SCC has outlined the factors for entrapment, a brief survey of its application in lower court cases across the country demonstrates a difficulty in its application [see for example, R v. Swan, 2009 BCCA 142: a rather interesting case that applies the entrapment doctrine to police powers in a “dial-a-dope” context). Therefore, the arrival of this case before the Supreme Court presents an opportune moment to provide some clarification.
What happened to Aliu Imoro?
The police received an anonymous telephone tip that a black male was selling drugs on the twelfth floor of an apartment building in Toronto. (Note: The date of the call was redacted from the warrant, as well as the identity of the caller. Additionally, the caller was unable to provide what type of drug was being sold or the identity or further description of the male selling the drugs). An undercover cop, Officer Matthews, went to the apartment building alone to investigate the tip. He gained entry into the building after someone held open the lobby doors for him, then took the elevator to the twelfth floor with an East Indian male who was behind him. When the elevator doors opened, a black male, later identified as Mr. Imoro, approached the elevator and said “Hey, come with me”. Matthews, unsure of why this was said to him, responded with, “You can hook me up?” Imoro responded, “Yeah, man.” Both the East Indian male and Matthews followed Imoro to an apartment. Inside the apartment, Imoro sold marijuana to the East Indian man with no exchange of words. The East Indian male left the residence, and a deal was then done between Matthews and Imoro for forty dollars worth of powdered cocaine. Matthews asked for and received Imoro’s telephone number to arrange future purchases. Based on this transaction, the Toronto Police Services applied for and received a warrant to search the apartment. The next day, Matthews went back to the same apartment for another drug transaction. Once the deal was complete, other officers entered and immediately executed the search warrant. Imoro was charged with two counts of trafficking cocaine, two counts of possession of proceeds of crime, possession for the purpose of trafficking marijuana and possession for the purpose of trafficking cocaine.
Issues Before the SCC
Three issues will be brought before the SCC:
1) Did the under cover police officer entrap the appellant by asking “you can hook me up?”
2) Can the issue of entrapment be determined by a trial judge as a Charter application prior to a finding of guilt?
3) Is exclusion of evidence pursuant to s. 24(2) of the Charter available as a remedy for entrapment?
In regard to the first issue, the trial court held that entrapment occurred at the time of the initial contact between Matthews and Imoro. By asking, “you can hook me up”, the police provided Imoro with an opportunity to sell drugs, and the police did so without reasonable suspicion that Imoro was engaged in drug trafficking. Contrary to the trial judge’s finding, the OCA found that the officer’s question did not give rise to entrapment. The appeal court characterized the officer’s question simply as a step in the police’s investigation of the anonymous tip, rather than an opportunity for Imoro to traffic in drugs. The opportunity to commit the crime occurred in the apartment, and at that time, Matthews had more than reasonable suspicion considering he had witnessed the drug transaction between Imoro and the East Indian man.
With respect to the second issue, the trial judge held that as she was sitting without a jury, she could consider whether the undercover officer’s conduct amounted to entrapment at the outset of the trial. In other words, there was no impediment to making a finding of entrapment before determining culpability of the accused. The OCA held that while the SCC did not distinguish between jury and non-jury trials when outlining the criminal procedure pertaining to entrapment in Mack; whatever the mode of trial, the judge ought to consider entrapment only after a finding of guilt.
Finally, concerning the third issue, that of available remedies, the trial judge recognized that the standard remedy where entrapment is established is a stay of proceedings. However, since she accepted that there was no procedural impediment to making a finding of entrapment before determining the culpability of the accused, and that s. 7 of the Charter is engaged when a finding of entrapment is made, a remedy pursuant to s. 24(2) of the Charter could be considered. The OCA did not decide the issue since the appeal court set aside the trial judge’s finding of entrapment. However, writing in obiter, Laskin J.A. said that a s. 24(2) remedy is ill-suited for a finding of entrapment.
What will the SCC do?
It is always rather difficult to predict what will happen in a case on appeal. With respect to the first issue, the answer to whether Imoro was entrapped by police will depend on the extent of power that judges believe should be granted to police in the investigation of crimes. As aforementioned, the doctrine of entrapment seeks to balance competing objectives surrounding crime investigation techniques. Whether the question “you can hook me up” will be considered as an opportunity for Imoro to traffic in drugs will turn on whether it is is characterized as a legitimate investigation of a tip, or as a question that led Imoro to commit a crime. The former characterization of the evidence emphasizes a crime control approach to police powers, while the latter characterization emphasize a due process approach. The tip that led to investigation of the building in question was specific enough to direct the officer to the twelfth floor, but on the same hand, it was vague enough so that the identification of Imoro was based solely on his race. It will be interesting to see what extent of powers the SCC will grant to the police in this case.
With respect to the latter two issues, in my opinion, it is likely that the SCC will hold that the issue of entrapment cannot be determined by a trial judge as a Charter application prior to a finding of guilt. Accordingly, I do not see the exclusion of evidence under s. 24(2) of the Charter being available as a remedy. The basis of this opinion derives from Lamer J.’s decision in Mack, whereby he explicitly states:
Before a judge considers whether a stay of proceedings lies because of entrapment, it must be absolutely clear that the Crown had discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence.
The reason for this procedural requirement being that “it protects the rights of an accused to an acquittal where the circumstances so warrant.” I find it difficult to see how the SCC will be able to read this statement as being limited to jury trials. It so follows then that s. 24(2) could not be held as a remedy, and this is in line with a stay of proceedings being the traditional remedy for entrapment.
[filed: Criminal Procedure]