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What is entrapment and when can the defence be used?

You have probably heard the word “entrapment” in American television legal shows. For the purposes of this blog, entrapment refers to the legal defence that can be claimed by an accused in response to evidence of the commission of a crime. In other words, entrapment is the conception and planning of an offence by an officer, and his or her procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer. The standard remedy for successfully raising the defence of entrapment is a stay of proceedings.

The Defence of Entrapment

The defence of entrapment does not serve as a justification or excuse. Rather, it is a form of an abuse of process application that can result in a stay of proceedings. This application is entirely separate from the issue of guilt or innocence of the accused. It is dealt with separately from a trial and on the merits. So, in a nutshell, entrapment is not a formal defence in law but instead a procedural disentitlement to convict on the basis of abuse of process and fairness. You may be wondering why this is the case. Well, keep reading to find out.

The doctrine of entrapment relies on the notion that certain police strategies and tactics leave no room for the formation of independent criminal intent by the accused, and therefore they should not be held liable. The judicial system disapproves of unacceptable police conduct in investigating crimes. The goal is to balance the interests of police flexibility in the tactics and techniques they use to investigate criminal activity, particularly, in consensual crimes, which are difficult to detect by conventional crime against the use of police tactics that would offend society’s notions of decency and fairness. The defence of entrapment allows courts to weed out law enforcement tactics and trickery that society would consider improper, and unfair.

When is the Defence of Entrapment Available?

This defence is available when:

  1. legal authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity;
  2. legal authorities provide a person with an opportunity to commit an offence without acting pursuant to bona fide inquiries; or
  3. although having such a reasonable suspicion or acting in the course of a bona fide inquiry, legal authorities go beyond providing an opportunity and induce the commission of an offence.

It should be noted that the defence of entrapment is granted only in the clearest of cases, such as where the administration of justice is objectively brought into disrepute.

The Burden of Proof

The trier of fact must be satisfied that the Crown prosecutor has proven the elements of the offence beyond a reasonable doubt. If the Crown discharges its burden, then the accused bears the burden of proof to demonstrate by a preponderance of evidence that the prosecution is an abuse of process. The standard of proof required by the accused is on the balance of probabilities. The part of the entrapment test that requires reasonable suspicion imposes the burden upon the defence to establish on a balance of probabilities that neither of the test criteria is satisfied.

The Aitken Robertson Team

If you or someone you know is charged with a criminal offence and he or she believes that they were subjected to police trickery, then a defence may be available. You can contact our office for a free 30-minute consultation. Our team will provide you with an assessment of your case and any potential defences that may be viable options for your matter.

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