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Entrapment: Bringing the Administration of Justice into Disrepute? (Aliu Imoro v. Her Majesty the Queen)

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, [1982] 2 S.C.R. 418 [Amato], R v. Mack, [1988] 2 S.C.R. 903 [Mack], and R. v. Barnes, [1991] 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]

5 Responses to “Entrapment: Bringing the Administration of Justice into Disrepute? (Aliu Imoro v. Her Majesty the Queen)

  1.               m.diane kindree

     

    Does Mr. Imoro have a criminal history?
    If the prosecution can demonstrate a previous history of similar crime doesn’t this make it more difficult to prove entrapment?

    I do not think this case is an example of entrapment because of the following reasons:

    1. compelling evidence (undercover officer witness to a drug transaction) that involved a specific individual found in a specific location (black male, 12th floor) and was not some random person. Also, Mr. Imoro showed a propensity for continuing to commit a crime when he completed a second drug transaction with the undercover officer.
    2. the undercover officer did not use coercive techniques to pressure Mr. Imoro to commit a crime rather, he initiated converstion with him using a common drug phrase (“you can hook me up”). This phrase provided the opportunity for Mr. Imoro to initiate the illegal acts. The undercover officer did not implant the idea for Mr. Imoro to commit a crime as he was allegedly already selling drugs (based on the tip) prior to the officer commencing his investigation.

    Has the court defined the differences between a sting and entrapment?

  2.               m.diane kindree

     

    Based on the reasoning above I do not believe this case meets the test for exclusion of evidence pursuant to s. 24(2). Why?

    Mr. Imoro’s response to “you can hook me up” did not support a legal defence of entrapment otherwise his response would have been “what are you talking about”, “no way”, “I don’t sell drugs”, “I think you have mistaken me for a drug dealer” and “please leave my apartment”. Mr. Imoro failed to limit his criminal liability in this matter (not induced) and that was his choice.

    Once again, based on my limited reasoning and definition of entrapment, I believe the trial judge must allow the Crown to prove their case “beyond a reasonable doubt” and also, the Crown should clarify, during the trial proceedings, the standard undercover police protocol and initiating conversation (defined language) used to investigate a person of interest who is suspected of dealing in drugs.

  3.               m.diane kindree

     

    Admissability is a question of law for the judge alone. The judge has the discretion to exclude under S. 24(2). My understanding is that the canon of exclusions can include character, habit, hearsay, relevance of evidence, opinion, and many other exceptions.

    What about the admissability of evidence of character (one’s disposition based on previous incidents) and habit (regular response to a repeated specific situation and based on frequency of occurrence)? Once again, receivability is up to the judge and may be based on a number of competing considerations in weighing the probative value against the prejudiced effect (alleged entrapment).

    Does the strength of the evidence support the probative value in this case?
    1. proximity of time of the similar acts
    2. similarity in detail to the charged conduct
    3. alleged pattern of conduct and specific circumstances surrounding similar acts
    4. distinct features that unify the incidents
    5. link between previous or similar acts and the accused

    Standard of relevance vs. discretion to exclude:
    Even if evidence is relevant, material and admissable, it may still be excluded if the trial judge, in her/his discretion, believes there are competing considerations which outweigh the probative worth of the evidence (ex aequo et bono: “in justice and fairness”).

  4.               Laura Achoneftos

     

    Hi Diane, thanks for your comments. Some answers to a few of your questions.

    Q1) Does Mr. Imoro have a criminal history? If the prosecution can demonstrate a previous history of similar crime doesn’t this make it more difficult to prove entrapment?
    A1) I’m unaware of the criminal history of Imoro. It wasn’t mentioned in any level decision. In R v. Mack, it was held that predisposition, past, present or suspected criminal activity is relevant only to determination of whether opportunity provided by police was justifiable. So, there must be connection between past conduct and provision of opportunity. I hold that to mean if there’s a past history of trafficking drugs, it would be easier for police to justify providing the opportunity to sell drugs. If however the appellant had a criminal record of a different crime, let’s say theft, then that past conduct wouldn’t be relevant to justifying the police presenting an opportunity for an accused to sell drugs.

    Q2) Has the court defined the differences between a sting and entrapment?
    A2) I unfortunately do not know the answer to this. If I come across the answer, I will let you know.

    Also, your comments on admissibility/evidence under s.24(2) are insightful. An issue in this case is whether s.24(2) is even available as a remedy. When you raise the issue of exclusion of evidence under s. 24(2) in court, the accused has to prove a Charter violation first. My understanding of criminal procedure and trial practice (still just a law student) is that you would raise this issue of the Charter violation and the exculsion of evidence (a Charter application) at a voir dire (which is a trial within a trial). This would take place before the trial is underway. The reason for this is that if you can exclude the evidence, the Crown may not have a case against the accused. The court system is set up to promote efficiency. This was one of the main reasonings of the trial judge when she accepted that a s.24(2) remedy was available. The clarification that is needed by the SCC is whether such a Charter application could be brought forth considering entrapment is traditionally a defence that is raised once the accused has already been proven guilty of the crime. The reason for this being that if the accused is found to be innocent, then they will be acquitted of the charges, and they don’t even have to raise an entrapment defense. The SCC may not even go through a s. 24(2) analysis (like the OCA decision) because they hold that entrapment can’t be raised on a Charter application prior to a finding of guilt. Hope that helps!

  5.               m.diane kindree

     

    Hi Laura,

    Thanks very much for your well written, informative and helpful responses to my questions.

    In the case of R. v. Mack the accused indicated to the police informer that he was not interested in dealing drugs (because of prior arrests and convictions; he was declaring himself “done”) but was repeatedly approached (badgered?) and was at one point shown a handgun (intimidation or coercive force) during the discussion about providing drugs for a deal for which he was arrested. The SCC determined this was convincing evidence that the commission of the offence was induced because this was not a consensual offence (based on the contextual evidence) and did support the doctrine of entrapment not that of a bona fide investigation. In this case, the court needed to preserve the “purity of the administration of justice and prevent an abuse of judicial process”. It follows that entrapment is an abuse of process. The question of whether the SCC may or may not go through a s. 24(2) analysis could be answered by Lamer C.J. in this clarifiying statement he made in Mack:

    “This statement should not be taken to mean that the police may not approach people on a random basis in order to present the opportunity to commit an offence, in the course of a bona fide investigation. The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry.

    Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:

    the person is already engaged in the particular criminal activity, or
    the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. ”

    I do think the Charter application s. 24(2) would be very well suited to a case of “criminalization of non-predisposed individuals” but I have serious doubts if it will be considered a remedy in this case.

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