Some police investigative techniques often leave an accused person feeling that the police tricked them into committing a crime. Whenever police employ tactics that influence an accused to commit crimes by the use of trickery, persuasion or fraud it can be considered ‘police entrapment’.
Generally, the case against an accused is much more persuasive when police are able to arrest the accused in the act of committing the offence. This causes officers to sometimes structure and plan their investigations in such a manner that leads to them finding an accused in the act of committing a crime. These types of investigations sometimes cross the line from random virtue testing to unquestionable police entrapment.
What Constitutes Entrapment?
Simply, police entrapment occurs when officers influence an accused person into committing a crime that but for the police coercion they would not have.
If, for example, police have information that a particular person is selling drugs and they arrange a drug purchase with this person, without the use of undue influence, it would not rise to the level of police entrapment. However, if during the process of making arrangements to purchase drugs the undercover officer threatened the dealer that would be considered police entrapment.
For a police entrapment defence to be successful it needs to be demonstrated that the police techniques involved an abuse of process and fairness. There are two relevant and determinative branches in testing for police entrapment:
- Reasonable Suspicion
- Offer Opportunity or Act to Induce Commission of Offence
When police commence an investigation they require reasonable suspicion prior to targeting the accused. They require some grounds to commence investigating or they risk violating a person’s Charter Rights.
Offer Opportunity or Act to Induce Commission of Offence
When assessing whether police unlawfully entrapped an accused It must be determined if they merely offered an opportunity to commit the offence, or if they acted to encourage the commission of the offence. If they acted to induce the commission of the offence by trickery, persuasion, or fraud then police entrapment may have occurred.
Are Sting Operations Entrapment?
Strictly speaking, a sting operation is separate from police entrapment. But, police entrapment can occur during the course of larger operation and investigation. It’s not uncommon that during the course of the sting operation police can exert tremendous pressure and influence on a subject of the investigation. This does not necessarily mean that the entire project raises to the level of police entrapment.
The problem for the Courts is that police are afforded much freedom while conducting undercover projects. Not every example of police trickery, pressure tactics or heavy-handed persuasion will amount to entrapment even if Charter Rights were violated. It often requires repeated patterns of bad-faith on behalf of police to convince Courts that entrapment occurred.
In recent years, there has been some media attention given to specific types of police undercover projects that come very close to police entrapment. One such example is the Mr. Big sting operations.
Mr. Big Sting
Mr. Big, or the Canadian Technique, is a sting operation used to get confessions out of cold case suspects. It has a high conviction rate and success in uncovering terrorists and resolving cold murder cases. Because of the highly influential police tactics, and the overt jeopardy much criticism has been levelled that Mr. Big strings are complex cases of police entrapment that prompting false confessions, and of violating Charter 7 Rights.
How the Mr. Big Sting Works.
The police create a fake criminal organization and entice the (usually financially struggling) suspect to join. They start off paying them for small criminal acts, bringing them further into the gang over time.
Eventually, the suspect meets the supposed kingpin of the criminal organization, Mr. Big. In reality, Mr. Big is a police interrogator. He addresses the cold crime and compels them to confess as a sign of loyalty or to help them out.
The technique is effective, but there has much criticism of the sting operation. For example, the fictitious organization usually pays the suspect well for the work they do. As a result, people may make a false confession in order to maintain their new lifestyle.
Providing that the police have reasonable suspicion this technique is difficult to prove as involving police entrapment. The criminal activity the police coerce the suspect to do is not what they are on trial for, instead it is the confession.
What to do if you are the Victim of Police Entrapment
If you are facing criminal charges, the first step should always be to hire a criminal defence lawyer. A criminal lawyer can help you determine if police entrapment applies to you.
There are many entrapment myths, such as a belief that police need to reveal themselves if asked, that persist. You need to know whether or not an entrapment claim is worth pursuing before going to trial.
William Jaksa is a Toronto criminal defence lawyer who helps his clients find the right defence for their specific case and needs. Contact William Jaksa today to schedule an appointment.