Entrapment

R. v. Bayat, 2011 ONCA 778, a child luring case, deals with the law on entrapment.  A helpful analysis of the law follows:

 

[15]         In Mack, Lamer J. explained the basis for entrapment in these terms at p. 956:

I take this statement [from R. v. Amato, [1982] 2 S.C.R. 418] to mean that the police are entitled to provide opportunities for the commission of offences where they have reasonable suspicion to believe that the individuals in question are already engaged in criminal conduct. The absence of a reasonable suspicion may establish a defence of entrapment for two reasons: firstly, it may indicate the police are engaged in random virtue-testing or, worse, are carrying on in that way for dubious motives unrelated to the investigation and repression of crimes and are as such "mala fides".  [Emphasis added.]

[16]         And later at p. 959:

To summarize then, the police must not, and it is entrapment to do so, offer people opportunities to commit crime unless they have a reasonable suspicion that such people are already engaged in criminal activity or, unless such an offer is made in the course of a bona fide investigation. In addition, the mere existence of a prior record is not usually sufficient to ground a "reasonable suspicion". These situations will be rare, in my opinion. If the accused is not alleging this form of entrapment the central question in a particular case will be: have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?  [Emphasis added.]

[17]         In Imoro, at para. 13, this court interpreted Mack to mean that on the lack of reasonable suspicion branch of entrapment the court must make two findings: “first, a finding that the police provided an opportunity to commit an offence; and second, a finding that the police did so without reasonable suspicion”. In that case, the court found that the initial police contact with the accused did not amount to providing an opportunity to commit an offence. An opportunity was given later, but by that time the officer had the requisite reasonable suspicion. Accordingly, entrapment was not made out.

[18]         The appellant makes a similar argument here. In her very helpful submissions, Ms. Dellandrea argues that when the interchange with the respondent is examined, the officer never provided the respondent with an opportunity to commit an offence, as that concept is understood in the entrapment context.  Alternatively, at the very least such opportunity was not given until well into the communication at a time where the officer had a reasonable suspicion that the respondent was engaged in child luring by reason of the respondent’s own messages to “Natasha”.

[19]         I agree with the appellant’s submissions.  The issue is a difficult one and the line between simple investigation and offering an opportunity to commit an offence will sometimes be difficult to draw. In my view, the trial judge erred in failing to consider whether the officer’s conduct in simply opening up a dialogue with the respondent constituted an opportunity to commit an offence. As is apparent from the passage in the trial judge’s reasons set out above at paragraph 13, the trial judge held that the reasonable suspicion had to exist from the moment the officer contacted the respondent. He failed to consider whether that initial contact was an offer of an opportunity to commit an offence. In my view, it was not. The initial contact was no more than a step in an investigation, the equivalent of a knock on a door.

[20]         Detective Howe, in the guise of Natasha, offered to be added as a “friend” to the respondent’s MSN account. This act could not be construed as an opportunity to commit the offence of child luring. After the initial contact was made, the respondent took the initiative in opening up communications with Natasha. The respondent asked to view Natasha. The photograph provided by the officer in response to this request was neutral. It could in not be construed as sexually provocative or as offering an opportunity to commit an offence. The respondent took the lead in engaging in ever more explicit sexual discussions even though by then he believed that Natasha was a child. The officer gave the respondent several opportunities to withdraw from the discussion. However, the respondent chose to carry on.

[21]         Counsel for the respondent argues that the officer’s conduct in targeting the respondent through his MSN account was materially different from the usual method used by the police of entering a chat room.  See for example, R. v. Alicandro, 2009 ONCA 133. While I appreciate that there is a difference, in my view, it is not a legally material distinction. In the chat room type of investigation, police officers initially make themselves available to chat with everyone in the chat room, and then may enter a dialogue with particular individual. In this case the police officer made himself available to chat with a particular individual from the outset. In both situations, if it is the accused who takes the lead in directing the conversation, the element of offering an opportunity to commit the offence of child luring is not made out. There is a difference between simply providing an opportunity to chat or talk, and providing an opportunity to commit the offence of child luring.

[22]         The respondent further submits that if this court were to find that the trial judge erred in failing to consider whether the officer gave the respondent an opportunity to commit an offence, we should remit the matter back to the trial judge. He submits that this is essentially a factual issue to be determined by the trier of fact. I do not agree. In a judge alone trial, where the trial judge has made all the necessary findings of fact to support a finding of guilt, or those facts are not in dispute, the appellate court may substitute a finding of guilt on a Crown appeal from acquittal: R. v. Cassidy, [1989] 2 S.C.R. 345 at 354-55. The same test should apply on a Crown appeal from a stay of proceedings.

[23]         In this appeal, the relevant facts are uncontested and undisputed. They are set out in the transcripts of the communications between the respondent and the officer and in the trial judge’s reasons. It only remains for this court to apply the legally correct test for entrapment to those undisputed facts. The trial judge’s adverse finding of credibility against the officer on whether he was engaged in a bona fide investigation, or had a reasonable suspicion, do not affect the preliminary question of whether the facts reveal an opportunity to commit an offence. I am satisfied that there was no opportunity to commit an offence as that requirement was interpreted by this court in Imoro