RETHINKING THE BONA FIDES DAVID M. TANOVICH · RETHINKING THE BONA FIDES OF ENTRAPMENT ... 4 R v Mack, [1988] 2 SCR 903, [1989] 1 WWR 577 [Mack cited to SCR]. On the same ... develop

RETHINKING THE BONA FIDES OF ENTRAPMENT

DAVID M. TANOVICH†

I. INTRODUCTION

In the ageless war on consensual crimes, the police often resort to subterfuge in an effort to trap an individual into committing an offence. The common refrain is that such stratagems are necessary as a means of crime control be-cause there is often no victim to file a complaint. In Canada, the police ap-pear to set traps most frequently in drug cases, particularly on the street.1 Allowing the police to target areas to facilitate drug crime, in an apparent effort to defeat it, has the potential to harass, tempt, and ultimately engulf countless individuals in the criminal justice system. In addition, being poor and racialized makes it more likely you will be harassed and tempted as the “war on drugs” has a disproportionate impact on poor and racialized com-

† Professor of Law and Academic Director, Law Enforcement Accountability Project

(LEAP), University of Windsor. I wish to thank my research assistant Minoo Alipour Birgani (2010) for her help in preparing the entrapment survey and the Law Foundation of Ontario whose grant made her assistance possible. I also wish to thank the many read-ers who offered their insightful comments and, in particular, an anonymous reviewer who provided detailed feedback that led to a sharpening of the arguments in this article. An earlier version of this article was presented at the “Criminal Defences: The Top Ten List” conference of the Ontario Criminal Lawyers’ Association, 27 November 2009.

1 A survey was conducted of criminal cases from 1989 to 2009 in which there was some indication that entrapment had been raised. The sources included Quicklaw, the Crimi-nal Reports, Canadian Criminal Cases, and the Weekly Criminal Bulletin. 151 entrapment cases were identified. Drug cases made up 77% of these cases. More than half of the drug cases involved cocaine while marijuana or hashish cases made up approximately one quar-ter. Stays were entered in 21% of the drug cases. Prostitution and related offences ac-counted for approximately 5% of the cases.

418 U.B.C. LAW REVIEW VOL. 43:2

munities.2 Judicial control and Charter scrutiny of putative entrapment tech-niques that contain “the potential for abuse inherent in such low-visibility exercises of discretionary power”3 is, therefore, essential to protect against overreaching and discriminatory policing.

Historically, regulating the solicitation of crime by police was not high on the Supreme Court of Canada’s radar. It was not until 1988, in R v Mack,4 a case involving drug trafficking, that the Court finally recognized entrapment as a live issue. Justice Lamer (as he then was) writing for the Court, expressed concern over the ability of the judiciary to protect individuals and the justice system from overreaching policing, and found jurisdiction for an entrapment defence in the common law/Canadian Charter of Rights and Freedoms5 (sec-tion 7) abuse of process doctrine.6 In doing so, he rejected the American sub-jective “state of mind” or predisposition test7 in favour of a largely objective

2 See David M Tanovich, The Colour of Justice: Policing Race in Canada (Toronto: Irwin

Law, 2006) at ch 5 [Colour of Justice]. See also Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen’s Printer for Ontario, 1995) at 83–90; David A Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (New York: The New Press, 2002) at 48–52; Kenneth B Nunn, “Race, Crime and the Pool of Surplus Criminality: Or Why the ‘War on Drugs’ Was a ‘War on Blacks’” (2002) 6 J Gender Race & Just 381.

3 Justice Iacobucci in R v Mann, 2004 SCC 52 at para 18, [2004] 3 SCR 59 [Mann], speak-ing in the context of street-level police encounters.

4 R v Mack, [1988] 2 SCR 903, [1989] 1 WWR 577 [Mack cited to SCR]. On the same day it released Mack, the Court handed down the companion case R v Showman, [1988] 2 SCR 893, [1989] 1 WWR 635 [Showman].

5 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

6 Justice Lamer (as he then was) had been a member of the Justice Estey dissent in R v Amato, [1982] 2 SCR 418, 140 DLR (3d) 405 [Amato], which similarly recognized an entrapment defence under the abuse of process doctrine. The majority opinion in Amato concluded that entrapment did not arise on the facts and therefore did not address the broader substantive question of the existence of the defence.

7 For a summary of the American and English approaches to entrapment, respectively, see AD Johnson & R del Carmen, “The Entrapment Defense: Current Issues, Problems, and Trends” (2009) 45:2 Criminal Law Bulletin 294; David Ormerod & Andrew Roberts,

2011 THE BONA FIDES OF ENTRAPMENT 419

inquiry into the police methodology whether it be “opportunity buys,” de-coys, or stings. As a consequence, the Court rejected entrapment as a sub-stantive defence in the traditional sense of focusing on the culpability of the accused.8 Instead, it created a procedural defence, to be raised after a finding or plea of guilt with the burden of proof on the accused. The remedy is a stay of proceedings as opposed to an acquittal.9

“The Trouble with Teixeira: Developing a principled approach to entrapment” (2002) 6 Int’l J Evidence & Proof 38.

8 That is not to suggest that police conduct that resembles entrapment may not offer an elements defence—for example, in cases where the police decide to lay charges to address conduct that they have incited, such as an individual shouting in public or refusing to identify themselves to express displeasure at being harassed by the police. The case of R v Osbourne, 2008 ONCJ 134, 78 WCB (2d) 205 [Osbourne], provides a good illustration of an elements defence. Officers from Toronto’s Anti-Violence Intervention Strategy (TAVIS) unit saw Osbourne standing on the street with another individual. Both men, who are Black, were walking home from a soccer game. When the officers approached in their vehicle, Osbourne refused to answer their questions. He did so in a loud and profane manner. He and his friend then walked away. The officers got out of their vehicle and fol-lowed. Both men were now saying, “you guys are always harassing us.” At this point, one of the officers wanted to know their identities as in her view, they had committed a crimi-nal offence (by shouting) and had jaywalked. The incident escalated, as the officer de-manded that the men put their hands to their side and identify themselves. Osbourne be-gan waving his arms in the air and made contact with one of the officers. He was charged with causing a disturbance and assaulting a police officer. The trial judge acquitted Os-bourne. In her view, his actions were attributed solely to the conduct of the officers, and Osbourne was “within his rights in asking to be left alone, no matter how rudely he ex-pressed it” (ibid at paras 17–22). See also R v Homer, 2009 ONCJ 530 (available on QL); R v Osbourne, 2008 ONCJ 134, 78 WCB (2d) 205; R v Linton, 2007 ONCJ 255, 48 CR (6th) 224; R v A(L), 2005 ONCJ 546, 72 WCB (2d) 490; R v Gyimah, 2005 ONCJ 83, 30 CR (6th) 267; R v Green, [2004] OJ No 5757 (Ct J) (QL). All of these cases involved racialized individuals.

9 In R v Swan, 2009 BCCA 142 at para 46, 244 CCC (3d) 108 [Swan], the Court of Ap-peal held that, “[w]here the Court finds entrapment, it has, by definition, found that the circumstances gave rise to the ‘clearest of cases’ entitling the affected individual to a stay of proceedings.” In R v Imoro, 2010 SCC 50 (available on CanLII) [Imoro (SCC)], the Su-preme Court of Canada left open whether evidence obtained through entrapment could be excluded under subsection 24(2) of the Charter.


In determining the parameters of the prohibited entrapment zone, Justice Lamer recognized that because of the difficulty detecting cases involving vic-timless or consensual crimes, the state must be given “substantial leeway” to develop and utilize effective investigative techniques.10 Using tactics that provide an opportunity for the accused to commit a crime was seen by Justice Lamer as necessary and, therefore, a reasonable limit on the individual’s right to be left alone. The state goes too far, however, where it engages in random virtue testing, embarks on an investigation for an improper purpose or in-duces an individual to commit an offence. Consequently, Mack established that entrapment will be made out where the police provide an opportunity for an individual to commit an offence in circumstances where:

· they do not have reasonable suspicion that the person targeted is involved in the criminal activity under investigation (i.e. individual-ized suspicion), or they are not acting pursuant to a bona fide inves-tigation;

· even assuming individualized suspicion or a bona fide investigation, the police induce the individual to commit the offence through de-ceit, fraud, trickery or reward, violence or other conduct.11

The issue in Mack (and its companion case, Showman) was whether the police had induced the commission of the offence. Justice Lamer developed a sensitive and sophisticated approach to inducement, identifying a number of relevant factors to consider.12 On the facts of the case, the Court concluded

10 Mack, supra note 4 at 916. 11 Mack, supra note 4 at 959, 962, 964–65. See also R v Barnes, [1991] 1 SCR 449 at 460,

121 NR 267 [Barnes] (summarizing the approach from Mack). 12 These factors include:

(1) the type of crime being investigated and the availability of other techniques for the police de-tection of its commission;

(2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

(3) the persistence and number of attempts made by the police before the accused agreed to com-mitting the offence;

(4) the type of inducement used by the police including deceit, fraud, trickery or reward;


that the police had gone too far in trying to get Mack to return to his crimi-nal past and had induced him to traffic in cocaine. In particular, Justice Lamer pointed to the persistence of the police requests (approximately seven-teen attempts to get him to supply cocaine) and refusals, the threatening be-haviour of the police operative,13 and the length of time (six months) to get him to agree to traffic.14

Three years later Lamer, now Chief Justice, penned the majority decision in the last significant Supreme Court of Canada decision on the elements of the entrapment defence.15 That case was R v Barnes, another case involving

(5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;

(6) whether the police conduct involves an exploitation of human characteristics such as the emo-tions of compassion, sympathy and friendship;

(7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

(8) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

(9) the existence of any threats, implied or express, made to the accused by the police or their agents;

(10) whether the police conduct is directed at undermining other constitutional values.

Mack, supra note 4 at 965–66. 13 Ibid at 977–79. At one point, Mack went for a walk in the woods with the police opera-

tive, who pulled out a gun and said “a person could get lost” out there. Mack was later told to “get his act together.”

14 The Court reached an opposite conclusion in Showman, supra note 4. Justice Lamer, for the Court, concluded that while the police had used the accused’s friend to facilitate a number of marijuana transactions with an undercover officer, there was no undue exploi-tation. The Court was also not satisfied that repeated phone calls over the span of a few days to try to get Showman to participate in the drug sale were out of the ordinary.

15 The only other post-1991 Supreme Court entrapment decisions are R v Pearson, [1998] 3 SCR 620, 233 NR 367 [Pearson]; R v Campbell, [1999] 1 SCR 565, 237 NR 86 [Camp-bell]; Imoro (SCC), supra note 9. Pearson addressed the issue of whether an appellate court has jurisdiction to set aside a conviction and limit the new trial to a post-verdict en-trapment hearing. Pearson did not address the elements of the defence. In finding such ju-risdiction, Chief Justice Lamer and Justice Major re-iterated that entrapment is not an af-firmative defence going to guilt or innocence but rather a special defence that is raised af-ter a finding of guilt. In Campbell, the Court did not address the elements of entrapment


drug trafficking.16 While Barnes did not alter the entrapment test,17 it pro-vided the Court with an opportunity to elaborate on the bona fide investiga-tion part of the first branch of the test in the context of the targeting of a high-crime area and use of opportunity buys.18 The Court split eight to one on this issue with Justice McLachlin (as she then was) dissenting.19

except to the extent of concurring with the trial judge’s findings of reasonable suspicion and no inducement. The issue was whether notwithstanding compliance with Mack, the use of reverse stings (that is, where the police are the suppliers rather than purchasers of the drugs) is itself an abuse of process since the police are breaking the law. The conduct in Campbell took place before legislative changes to the Controlled Drugs and Substances Act, SC 1996, c 19, which provides immunity in some reverse sting cases. The Court held that reverse stings are not per se an abuse of process and that a case-by-case approach is re-quired to determine the issue. It ordered a new abuse of process hearing so that the Crown could disclose what advice it had given the police about their conduct and what impact that had on whether their conduct was an abuse of process. And finally, in Imoro, the Court held, without any discussion of the elements of the defence, that there was no en-trapment on the facts of the case. Imoro is discussed further below.

16 Barnes was found guilty of trafficking, possession for the purpose of trafficking and pos-session of hashish. Barnes, supra note 11 at para 6.

17 Ibid. Indeed, at page 460, Chief Justice Lamer, in setting out the two principal branches of the test, quoted directly from Mack.

18 An “opportunity buy” has been defined as: . . . [a] term used in police drug enforcement that usually refers to the specific instance where, any person—as opposed to a targeted person—is given the opportunity to sell drugs to an undercover officer in an area that the police consider a “target area.”

R v Sterling, [2004] OJ No 3355 at para 4 (Sup Ct J) (QL) [Sterling]. 19 Justice L’Heureux-Dubé also wrote a partial dissenting opinion but not on the issue of

whether the investigation was a bona fide one. On that point, she concurred with the Chief Justice. Justice L’Heureux-Dubé dissented on whether the Court should set aside the order of the Court of Appeal to send the case back to the trial judge to make a deter-mination on the question of inducement. The trial judge had stayed the case on the basis of the first prong of Mack and had not addressed the inducement prong. Justice L’Heureux-Dubé would have set aside the order for a new trial and remit the case back to the trial judge to enter a conviction, because in her view inducement was not a live issue on the evidence. The majority disagreed and refused to interfere because the Crown had not sought leave to appeal that part of the Court of Appeal’s decision.


In stark contrast to his broad approach to inducement in Mack, Chief Justice Lamer developed a narrow conception of what constitutes a bona fide investigation. This was particularly surprising given that he recognized that this was an exception to the general requirement of individualized suspi-cion.20 As the Chief Justice noted, “[t]he basic rule . . . 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 . . . .”21 According to the majority, the police act pursu-ant to a bona fide investigation, as it relates to opportunity buys, where (i) they are acting in good faith in pursuit of crime (i.e. where the investigation is not undertaken for, or influenced by, improper purposes);22 and (ii) they target individuals in geographically tailored locations where they have rea-sonable suspicion that the criminal activity under investigation is occurring.23 The majority also recognized that although randomness is permitted in the selection of the individual, there is no random virtue testing in this context because of the link between the crime under investigation and the location at which individuals are approached.24 On the facts of the case, the majority concluded that there was no entrapment. As noted earlier, Justice McLachlin dissented in Barnes. In her view, a “more refined test for bona fide inquiry”,25

20 In their discussion of Barnes, Ormerod & Roberts observe that the majority approach

“undermines the principal safeguard in Mack.” Supra note 7 at 51. 21 Barnes, supra note 11 at 463 [emphasis added]. 22 In Mack, supra note 4 at 956–57, Justice Lamer provides an example of a police officer

who targets individuals on parole because of his dislike of parole. Another example would be where the investigation is influenced, consciously or unconsciously, by gender, race, sexual orientation, or class. See Brown v Durham Regional Police (1998), 43 OR (3d) 223, 167 DLR (4th) 672 at para 39 (CA).

23 Barnes, supra note 11 at 460–62. 24 It was necessary for the Court to make this clarification as the trial judge had found that

random virtue testing had occurred because of the absence of individualized suspicion and because of the distance between where the accused was approached and the location where drug trafficking was occurring most frequently.

25 Barnes, supra note 11 at 482 [emphasis added].


which takes into account other considerations and places a greater emphasis on equality, is necessary to prevent discriminatory and overreaching policing. As will be discussed in Part III, she concluded that the investigation in Bar-nes was too broad to be considered a bona fide one.

As is clear from the Supreme Court’s approach to entrapment in Mack and Barnes, there are three core elements of the defence: individualized sus-picion, bona fide investigation, and inducement. As noted earlier, Barnes is the last significant Supreme Court of Canada decision on the elements of the entrapment defence and it is now twenty years old. During this time, there have been significant Charter decisions from the Supreme Court in unrelated contexts that involve many of the core values that animated the Court’s ap-proach to entrapment. We also now have a better sense of the nature and breadth of discriminatory policing, particularly as it relates to systemic ra-cism and racial profiling.26 It is time, therefore, to rethink some of these core elements. That is the purpose of this article.27

Part II of the article examines the impact of R v Kang-Brown,28 a recent Charter case dealing with expectations of privacy and sniffer dogs, and the meaning of reasonable suspicion, which plays a central role in the entrapment analysis. Part III is the heart of this piece. It examines the Supreme Court’s decision in Barnes and, in particular, Justice McLachlin’s dissenting opinion and her recognition of the potential for discriminatory policing inherent in putative entrapment techniques. It then turns to highlighting the link be-tween systemic racism and entrapment in cases decided following Barnes. Finally, it turns to the impact of R v Clayton,29 another recent Charter case dealing with arbitrary detention and roadblocks, and Kang-Brown on the

26 See e.g. Colour of Justice, supra note 2. 27 The academic literature post-Mack/Barnes in Canada is almost non-existent. The only

other articles are Paul M Hughes, “Temptation and Culpability in the Law of Duress and Entrapment” (2006) 51 Crim LQ 342; Michael Stober, “The Limits of Police Provoca-tion in Canada” (1992) 34 Crim LQ 290. There are also a few short case annotations. See e.g. Tim Quigley, “Annotation of R v Sterling” (2004) 23 CR (6th) 54.

28 R v Kang-Brown, 2008 SCC 18, [2008] 1 SCR 456 [Kang-Brown]. 29 R v Clayton, 2007 SCC 32, [2007] 2 SCR 725 [Clayton].


bona fide investigation branch of the defence. These cases have created a new constitutional minimum standard for any police conduct that interferes with constitutionally protected interests. That minimum standard is compliance with the common law “reasonable justification” test (commonly referred to as the ancillary powers doctrine). It is argued that entrapment triggers Clay-ton/Kang-Brown scrutiny because it interferes with the constitutionally pro-tected rights of privacy and equality. The article’s thesis is that Justice McLachlin’s dissent, which incorporates a “reasonable justification” test, should be taken to be the correct methodological approach for assessing what constitutes a bona fide investigation. With this broader approach, there is room for a greater emphasis on equality considerations—most notably, the concern about discriminatory policing. The impact of this approach is con-sidered in the context of a number of cases involving racialized individuals and neighbourhoods.

II. A CLEAR MEANING FOR REASONABLE SUSPICION

A. THE IMPACT OF KANG-BROWN

Reasonable suspicion factors prominently in the entrapment assessment. It is linked to both the individualized suspicion and bona fide inquiries that make up the first prong of the entrapment test.30 However, neither Mack nor Bar-nes defined reasonable suspicion. In Mack, the Court assumed it existed without any analysis of the evidence. Justice Lamer, as he then was, did ob-serve however that the target’s suspected criminality must relate to the crime under investigation31 and that the target’s criminal record is a relevant but not conclusive factor.32 In addition, Chief Justice Lamer observed in Barnes

30 Barnes, supra note 11 at 463. 31 In particular, he noted that there has to be “some rational connection and proportionality

between the crime for which police have this reasonable suspicion and the crime for which the police provide the accused with the opportunity to commit.” Mack, supra note 4 at 958.

32 Mack, supra note 4 at 958–59. Since the only evidence in Mack to support a finding of reasonable suspicion appeared to be his criminal record for drugs including one entry in


that “the officer’s decision to approach the accused, based on a ‘hunch’ or ‘feeling’ rather than extrinsic evidence, also indicates that the accused did not, as an individual, arouse a reasonable suspicion.”33 With respect to rea-sonable suspicion and locations, the Court was satisfied in Barnes that there was sufficient evidence to reasonably suspect that the targeted area was a high crime area for drugs based on the testimony of an officer who provided some crime statistics for the area.

Over the last few years, reasonable suspicion has become a familiar legal standard as the Supreme Court has used it as a legal threshold in recognizing new police powers under the common law ancillary powers doctrine.34 Most recently, in Kang-Brown, Justice Binnie (Chief Justice McLachlin concur-ring) and Justice Deschamps ( Justice Rothstein concurring) accepted that reasonable suspicion is situated between a mere possibility and probable cause.35 Justice Binnie quoted with approval the following academic com-mentary on the meaning of reasonable suspicion:

the year that the entrapment scheme began, it would seem that his record was conclusive. Indeed, as Michael Stober, supra note 27, has observed:

One may question the basis of the Supreme Court’s finding in favour of reasonable suspicion on the facts in Mack. Was it linked to the accused’s record only? It could not be the accused’s predis-position to commit the offence as he persistently refused offers. Moreover, there was not ongoing criminal enterprise and the accused testified that he was no longer involved in drugs.

33 Barnes, supra note 11 at 460. 34 See e.g. Mann, supra note 3. 35 Kang-Brown, supra note 28 at paras 75–77, 164–67. Kang-Brown concerned whether the

police have the power to conduct sniffer-dog searches under the ancillary powers doc-trine. The Supreme Court was divided. Four justices (LeBel, Fish, Abella, and Charron JJ) held that there is no authority at common law for sniffer-dog searches. Five justices (McLachlin CJC, Bastarache, Binnie, Deschamps, and Rothstein JJ) held that the police could conduct such a search where they had reasonable grounds to suspect that the search would yield contraband. Justice Bastarache, however, went further than the other four jus-tices in that he recognized a power to search with a dog where the reasonable suspicion re-lates not to any one individual but to the general area where the search is taking place. Jus-tice Bastarache did not take issue with either Justice Binnie’s or Justice Deschamps’ ap-proach to the meaning of reasonable suspicion. Finally, while there was a majority on the reasonable suspicion issue, there was also a six-person majority that concluded that the search was unreasonable (Chief Justice McLachlin and Justice Binnie concluding that


[T]he fundamental distinction between mere suspicion and reasonable sus-picion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead . . . the suspicion must be supported by factual ele-ments which can be adduced in evidence and permit an independent judicial assessment. . . . What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of prob-ability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must ex-ist . . . .36

Both Justices Binnie and Deschamps also approved of R v Simpson,37 where the Ontario Court of Appeal held that reasonable suspicion is a “con-stellation of objectively discernible facts which give the detaining officer rea-sonable cause to suspect that the detainee is criminally implicated in the ac-tivity under investigation.”38 That Court recognized that “an objectively dis-cernible standard” serves to “avoid indiscriminate and discriminatory exer-cises of the police power.”39

Kang-Brown thus makes it clear that reasonable suspicion is a higher standard than a hunch or mere suspicion but a lower standard than reason-able grounds to believe. It is an evidence-based standard that requires suffi-cient information to enable an independent judicial assessment of the facts upon which the suspicion is based.40 Since Mack, many of the cases dealing

there was no reasonable suspicion, and Justices LeBel, Fish, Abella, and Charron conclud-ing that there was no lawful authority).

36 Kang-Brown, supra note 28 at para 75, quoting from Peter Sankoff & Stephane Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999) 24 CR (5th) 123 at 125–26.

37 R v Simpson (1993), 12 OR (3d) 182, 79 CCC (3d) 482 (CA) [Simpson cited to OR]. 38 Ibid at 202 [emphasis added]. 39 Ibid. While this is true, it must also be noted that reasonable suspicion is a low threshold

and that the police often interpret innocuous or equivocal conduct as suspicious because they are looking at through a discriminatory lens. See Colour of Justice, supra note 2 at 135–37; David Tanovich, “The Colourless World of Mann” (2004) 21 CR (6th) 47.

40 See R v Lal (1998), 130 CCC (3d) 413 at 423, 56 CRR (2d) 243 (BCCA), cited with approval in Kang-Brown, supra note 28 at para 77. See also the discussion of the impact of


with reasonable suspicion under the individualized suspicion prong have in-volved the sufficiency of information given to the police from an informer or from an anonymous or Crime Stoppers tip. Many of these cases have in-volved a robust approach that has served to protect individuals from over-reaching policing.41

III. REFINING THE BONA FIDE INVESTIGATION INQUIRY

A. R V BARNES

On 12 January 1989, Philip Barnes and a friend were walking near the Gran-ville Mall area of Vancouver. This area of Vancouver has been described as follows:

Granville Mall, located in downtown Vancouver, occupies a six-block stretch of Granville Street, a major north-south thoroughfare running through the entire city. The diversity of the Granville Mall area—which features theatres, restaurants, major department stores, large office towers, and within the ra-dius of one block, the Vancouver Art Gallery, convention facilities and the

Kang-Brown on the reasonable suspicion standard in R v Williams, 2010 ONSC 1698 at para 44 (available on CanLII) [Williams].

41 See e.g. Swan, supra note 9 (no reasonable suspicion in a “dial-a-dope” operation where police obtained accused’s cell phone number from list containing 150–250 numbers of possible drug traffickers and called and asked whether he was “working”); R v Arriagada, [2008] OJ No 5791 (Sup Ct J) (QL) [Arriagada] (uncorroborated information provided by an unproven and anonymous tipster insufficient to establish reasonable suspicion. The information provided by the tipster, who asked to remain anonymous, was that “there was a drug dealer dealing cocaine in Toronto in the 32 Division area, that this person went by the name of Rocky, was Philipino (sic), of medium build and in his early twenties. The tipster provided a telephone number for Rocky.” This information was held to be insuffi-cient in absence of any corroboration to permit police to call number and ask for “half a B.”). See also R v Gosselin, 2010 BCPC 164 (available on CanLII); R v Nosworthy, 2010 ONSC 743 (available on QL) [Nosworthy]; R v Mann, supra note 3; R v Meerza, [2006] OJ No 2983 (Sup Ct J) (QL); R v B(S), 2005 ONCJ 121 (available on CanLII); R v Pe-ters (2002), 92 CRR (2d) 122, 53 WCB (2d) 75 (Ont Sup Ct J); R v Benedetti (1997), 200 AR 179, [1997] 7 WWR 330 (CA); R v Virgo (1993), 67 OAC 275, 22 WCB (2d) 458 (CA); R v Cahill (1992), 12 BCAC 247, 13 CR (4th) 327 (CA).


Law Courts—means that on a daily basis literally thousands of individuals will frequent the Mall.42

Barnes was ensnared by a “buy and bust” operation conducted by the Vancouver Police Department and was eventually persuaded to sell one gram of hashish to an undercover officer for fifteen dollars. The judgment does not tell us whether Barnes was racialized or Aboriginal. However, it is clear that the officers were engaged in profiling.43 In explaining why she ap-proached Barnes and his friend, the undercover officer testified that she had “a hunch, a feeling that they’d—possibly might be in possession” because “[t]hey fit my general criteria. I look for males hanging around, dressed scruffy and in jeans, wearing a jean jacket or leather jacket, runners or black boots, that tend to look at people a lot.”44

A majority of the Court concluded that while the police did not have rea-sonable suspicion to link Barnes to drug trafficking, the police were engaged in a bona fide investigation. Chief Justice Lamer, for the majority, noted that the police conduct was motivated by “the genuine purpose of investigating and repressing criminal activity.”45 In addition, the police had “reasonable grounds for believing that drug-related crimes were occurring throughout the Granville Mall area.”46 While the majority recognized that the size of the area could be a relevant consideration in assessing bona fides,47 it is not clear when

42 Barnes, supra note 11 at 484 (per McLachlin J, as she then was). A similar description was

provided by the trial judge. See ibid at 457. 43 For other cases where there was affirmative evidence that the police targeted the individ-

ual because he or she fit a “profile,” see R v McGivern, 2007 YKTC 29, 74 WCB (2d) 614; Sterling, supra note 18; R v Savoie, [1990] BCJ No 1943 (Co Ct) (QL).

44 Barnes, supra note 11 at 456. 45 Ibid at 460. 46 Ibid. The reference to “reasonable grounds for believing” was a misstatement as it is clear

that Chief Justice Lamer had in mind reasonable grounds for suspecting given the other references in the judgment to reasonable suspicion.

47 Chief Justice Lamer noted, ibid at 462, that:

in many cases, the size of the area itself may indicate that the investigation is not bona fide. This will be so particularly where there are grounds for believing that the criminal activity being investi-gated is concentrated in part of a larger area targeted by the police.


it would be an issue in cases involving drugs. As described earlier, the Gran-ville Mall area involves six blocks of high-volume traffic and the particular location where Barnes sold the drugs was not known for trafficking. Never-theless, the majority held, in the absence of any evidence, that targeting any smaller area would not have been as effective.48 Chief Justice Lamer was also concerned that the traffickers would “modify” their techniques to respond to the police targeting. The problem with this argument is that it could serve to justify an even larger area.49 Finally, no concern was raised by the fact that Barnes had been profiled and the implications of that for future investiga-tions.

Such a concern was, however, raised in the dissenting opinion of Justice McLachlin (as she then was). In her view, the presence of reasonable suspi-cion and a valid criminal investigation were not sufficient to constitute a bona fide investigation and a more vigorous balancing of the competing in-terests of crime control and fairness was necessary.50 She grounded her con-cern in the constitutional principles of privacy and equality:

To paraphrase La Forest J in Wong . . . the notion is that individuals should be free to go about their daily business—to go shopping, to visit the theatre, to travel to and from work, to name but three examples—without courting the risk that they will be subjected to the clandestine investigatory tech-niques of agents of the state. A further risk inherent in overbroad undercover operations is that of discriminatory police work, where people are interfered with not because of reasonable suspicion but because of the colour of their skin or, as in this case, the quality of their clothing and their age.51

For Justice McLachlin, a bona fide investigation is one that has taken into account and balanced the relative harms by examining such factors as, the

48 Ibid at 461. 49 It is also not clear what modifications he had in mind. 50 As Justice McLachlin observed, the Court in Mack recognized these competing interests

as the individuals “interest in being left alone, free from state intrusion, and the interest in not being induced by the state to commit an offence . . . .” and the “state’s competing in-terest in protecting society from crime.” Supra note 11 at 480.

51 Barnes, supra note 11 at 481–82 [emphasis added].


likelihood of criminal activity at the location targeted, the seriousness of the crime, the “number of legitimate activities and persons who may be affected,” and the “availability of other less intrusive techniques.”52 It ultimately re-quires consideration of “whether the interception at the particular location where it took place was reasonable having regard to the conflicting interests of private citizens in being left alone from state interference and of the state in suppressing crime.”53 As will be discussed later, this is the essence of the “reasonable justification” test from the common law ancillary powers doc-trine. Applying her reasonable justification test to the facts of the case, Justice McLachlin concluded that the police investigation in Barnes was not a bona fide one. The area was simply too large and involved a diverse array of daily activities involving thousands of individuals. In addition, there was no evi-dence that trafficking was taking place at the location where Barnes was ar-rested or any evidence of rotating locations to avoid detection. Finally, the actual crime itself was not that serious as it involved a small amount of hash-ish and the police could have used their observation skills to detect traffick-ers.

B. THE LINK BETWEEN DISCRIMINATORY POLICING AND ENTRAPMENT

Justice McLachlin was right to be concerned about the discriminatory effects of putative entrapment techniques in Barnes, particularly with respect to the bona fide investigation exception which does not require individualized sus-picion. Indeed, since 1991, we have a much better sense of the problem from both an empirical and experiential perspective, particularly as it relates to systemic racism and racial profiling. It is now recognized that racial profiling is a serious problem in Canadian society and is a “day-to-day reality in the 52 Ibid at 482 53 Ibid at 482–83 [emphasis added]. Justice McLachlin also expressed her balancing test in

terms of: . . . whether the state’s interest in repressing criminal activity in the particular case outweighs the interest which individuals have in being able to go about their daily lives without courting the risk that they will be subjected to the clandestine investigatory techniques of agents of the state.

Ibid at 480.


lives of those minorities affected by it”.54 Moreover, entrapment is a breeding ground for racial profiling, as evidenced by the number of drug cases involv-ing racialized individuals.55 This social reality provides compelling justifica-tion, in addition to the doctrinal developments discussed in the next section, for reconsideration of the Barnes test. The effects of racial profiling are sub-stantial and cannot be ignored in assessing the permissible limits of street-level policing. Over-policing of racialized neighbourhoods causes tremen-dous psychological and physical harm, mistrust and alienation.56

54 Peart v Peel Regional Police (2006), 217 OAC 269, 43 CR (6th) 175 at para 94 (CA)

[Peart]; R v Brown (2003), 64 OR (3d) 161, 173 CCC (3d) 23 (CA). Findings of racially influenced policing were made in R v Moran, 2010 ONSC 1894, 208 CRR (2d) 264; R v Ahmed (2009), 72 CR (6th) 187 (Ont Sup Ct J); R v Nguyen, 2006 ONCJ 95, 69 WCB (2d) 554; R v Safadi, 2005 ABQB 356 (available on CanLII); R v Campbell, [2005] QJ No 394 (Crim & Pen Div) (QL); R v Peck, [2001] OJ No 4581 (Sup Ct J) (QL); Phipps v Toronto Police Service, 2009 HRTO 877 (available on QL); Nassiah v Peel (Regional Mu-nicipality) Services Board, 2007 HRTO 14 (available on QL).

55 For example, of the seven reported criminal decisions in 2010 (as of August 25) on Quicklaw, at least four involved racialized accused. See Imoro (SCC), supra note 9; Wil-liams, supra note 40; R v Faqi, 2010 ABPC 157 (available on CanLII) [Faqi]; Nosworthy, supra note 42. In only one of the other three 2010 cases is there reference to the accused being White. For pre-2010 criminal entrapment cases involving racialized accused, see R v Yee, 2009 BCPC 369 (available on CanLII) [Yee]; R v Chu, 2009 BCPC 76, (available on CanLII) [Chu]; R v Chau (4 March 2008), Vancouver 182032-2-C (Prov Ct) [Chau]; Arriagada, supra note 42; Sterling, supra note 18; R v Peters (2002), 92 CRR (2d) 122 (Ont Sup Ct J); and, R v Virgo, [1992] OJ No 2352 (Gen Div) (QL). There are likely other unreported cases as well. However, because race is often erased in criminal and con-stitutional litigation, it is difficult to track entrapment cases involving racialized litigants. See the discussion of this phenomenon in David M Tanovich, “The Charter of White-ness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System” (2008) 40 Sup Ct L Rev (2d) 655; David M Tanovich, “The Further Erasure of Race in Charter Cases” (2006) 38 CR (6th) 84.

56 See Colour of Justice, supra note 2; Paying the Price: The Human Cost of Racial Profiling (Toronto: Ontario Human Rights Commission, 2003) [Paying the Price]. See also Peart, supra note 55 at para 43.


Three entrapment cases illustrate the necessity of engaging in a vigorous equality analysis as part of the bona fide assessment. In R v Sterling,57 mem-bers of the Toronto Drug Squad East set up an opportunity buy operation on Eglinton Avenue East between Markham Road and McCowan Road (ap-proximately a half mile area). At 9:45 p.m., an undercover officer observed a “possible suspect” walking down a road in that designated area. The follow-ing is summary of the officer’s evidence:

The possible suspect was described as a “black male wearing a football shirt with #20 on it”. At the preliminary, and at this hearing, he added the follow-ing about his initial observations:

1. The possible suspect was a “young black male with baggy clothes”. And that, this was consistent with some complaints about drug activ-ity he had heard previously from area residents.

2. The young black male was “meandering around, looking around, and looked approachable”. By “approachable” he means “a possible suspect”.58

It is clear on his evidence that the officer used race in deciding to provide an opportunity buy to Mr. Sterling. On its face, this may appear to fall in line with the decisions of the Supreme Court of Canada in Mann and Clayton where the Court held the police were entitled to take into account race when deciding whether to detain the accused. However, neither decision applies in this context. In both cases, a crime had just been committed and the police were engaged in reactive policing, looking for a suspect that was described in part by his Aboriginal or racial background. This is a well known exception to the prohibition of using race in the exercise of discretion by police.59 In addition, in Mann, the description of the suspect who had just committed a break and enter was more detailed than in Sterling, while in Clayton, the po-

57 Sterling, supra note 18. 58 Ibid at paras 6–7. 59 As the Ontario Human Rights Commission noted in Paying the Price, supra note 56 at 6,

it is not racial profiling when the police investigation is based on “actual behaviour or on information about suspected activity by someone who meets the description of a specific individual.”


lice roadblock was limited to the crime scene and occurred within minutes of receiving the tip. These circumstances made it unlikely that race would be used indiscriminately to subject countless individuals to a detention, search, and questioning.60

In Sterling, the police were not engaged in reactive policing. They were not looking for a suspect that had just committed a trafficking offence and who was described, in part, by the colour of their skin. In fact, it was just the opposite. They were looking for someone to commit a crime. Moreover, even if it could be said that the police were trying to address “complaints” about crimes that had been committed, they did not have a meaningful description or other limiting features to ensure that race would not become a proxy for interdiction. At the end of the day, the officer in Sterling was essentially say-ing that the usual offender in this area for drug trafficking is a young Black male wearing baggy clothing; the accused fit that description and, therefore, became a “possible suspect.” This is the essence of racial profiling because innocent young Black men in the area would be subjected to targeting not because they exhibited objectively suspicious behaviour or matched the de-tailed description of a known criminal but because they were Black. Conse-quently, in Sterling, race and the potential for profiling should have been considered by the trial judge in assessing whether this was a bona fide investi-gation. As Professor Quigley observed in his Annotation to the case:

60 In Mann, supra note 3 at paras 4–5, the break and enter suspect was described as 21 years

old, Aboriginal, male, 5 feet 8 inches, 165 pounds, and wearing a black jacket with white sleeves. He was identified as “Zacharey Parisienne.” Mann was detained a few blocks away from the crime scene. As it turned out, Mann was not the suspect and, in fact, was wear-ing clothing that did not match the suspect’s. Mann was wearing “a pullover sweater with a kangaroo pouch pocket in the front.” This has led many to be critical of the Court’s reli-ance of the race-based suspect description in this case. See Tim Quigley, “R v Mann: It’s a Disappointing Decision” (2004) 21 CR (6th) 41 at 44–45; David M Tanovich “The Colourless World of Mann” (2004) 21 CR (6th) 47; Colour of Justice, supra note 2 at 159–60. In Clayton, supra note 29, a roadblock of the entrances of a strip club was set up four minutes after the police received a 911 call that a number of Black men were stand-ing in front of the club wielding guns. For a discussion of the use of race in Clayton, see David M Tanovich, “Ignoring the Golden Principle of Interpretation” (2008) 42 Sup Ct L Rev (2d) 441 at 454–57.


The extent to which young black men with baggy clothes affected the police assessment of both the requisite reasonable suspicion and the target area would seem to be relevant, especially after the arresting officer indicated that his reason for stopping the accused related to these factors. Thus, even though a reasonable suspicion and a defined target area were present, the ex-tent to which both of these factors relied upon race and racial profiling should have been a live issue.61

Providing an opportunity buy to a racialized person because of their clothing and skin colour also occurred in R v Faqi.62 In Faqi, undercover po-lice officers operating as part of “Operation Shot Glass” were targeting bars in downtown Calgary for drug trafficking. While in the Melrose Bar, the officers testified that they decided to approach the accused because of his baggy jeans which apparently did not “fit” with the “upper scale kind of business type people who attend, a little bit older . . . people very well dressed”,63 and because he was Black. The officer testified that based on these observations, the accused and his friend were the most likely and best candi-dates to buy drugs from. No further evidence appears to have been elicited from the officer about his beliefs about race and drug trafficking. After drinking, eating, and playing pool, one of the officers pretended to make a telephone call looking to purchase some cocaine. When he came back to the group, he advised them that he was having trouble. Eventually, the accused left the bar and returned with drugs for the officer. The trial judge stayed the proceedings:

In the court’s conclusion, this is not a bona fide inquiry, nor did the police have reasonable suspicion to target the accused. The police in this case were not using their powers properly. They were engaged in a test of the accused’s virtue based on negative stereotyping. . . . In essence, the police in this case were profiling the accused based on his clothing and the colour of his skin.64

61 “Annotation,” supra note 27. See also the discussion in David M Tanovich, “Moving Be-

yond ‘Driving While Black’: Race, Suspect Description and Selection” (2005) 36 Ottawa L Rev 315.

62 Faqi, supra note 55. 63 Ibid at para 4. 64 Ibid at para 14.


Another entrapment case where concerns about race were raised is the trial decision in R v Imoro.65 In that case, the police were investigating an anonymous tip of drug activity in a particular apartment complex on Jane Street in Toronto. The only description they had was that the seller was Black and that selling was taking place on the twelfth floor. When an under-cover police officer arrived at the twelfth floor, he made eye contact with the accused. The accused said “come with me” to another person on the floor. The officer thought Imoro was talking to him and asked “can you hook me up?” The trial judge concluded that Imoro was entrapped at this point be-cause he was offered an opportunity to commit an offence in the absence of individualized suspicion or a bona fide investigation in accordance with Bar-nes.66 As part of her reasoning, Justice Spies expressed concern about the vagueness of the description the police relied upon in the case and its invita-tion for discriminatory policing:

There is no question that the tip did not provide any physical description of the black male selling drugs, save that he was on the 12th floor of the build-ing, nor did it provide a name or telephone number for him. The identifica-tion of an individual solely on the basis of race without more is a problematic aspect of this case. David Tanovich has pointed out that merely race-based descriptions often give rise to harassment, intimidation, false arrests, vio-lence, engendering of a mistrust of the police and criminal justice system, among others. Endorsing the use of such bare suspect descriptions by the po-lice is something to be cautioned. In my view, the fact that Mr. Imoro hap-pens to be black, and happened to be on the 12th floor, did not corroborate the tip in any way.67

On appeal, the finding of entrapment was set aside. The Court of Appeal agreed with the trial judge that there was no reasonable suspicion when the

65 R v Imoro (2008), 235 CCC (3d) 86, 59 CR (6th) 109 (Ont Sup Ct J), rev’d Imoro

(SCC), supra note 9 [Imoro (SCJ)]. The issue of race was not discussed in the Court of Appeal judgment or in the brief endorsement by the Supreme Court of Canada.

66 With respect to Barnes, the trial judge held that there was no reliable information that would have led the police to conclude that drugs were being sold on that floor. See Imoro (SCJ), ibid at paras 52–53.

67 Ibid at para 51.


officer asked the accused “can you hook me up” but then held the question did not constitute an opportunity to commit an offence, but rather a step in the investigation of the anonymous tip.68 Once Imoro responded positively and invited the officer into his apartment where the officer saw a drug deal take place, the police had the requisite suspicion and there was, therefore, no entrapment.69 In its short endorsement, the Supreme Court of Canada simi-larly held that there was no entrapment, observing that “[t]he appellant him-self allowed the police officer to witness a criminal drug transaction. The appellant was not induced to commit a crime, but was actually engaged in his criminal activities.”70

Unfortunately, the appellate courts did not address the broader race con-cerns identified by the trial judge and its possible impact on the analysis. For example, the courts could have concluded that the problems of racial profil-ing justify a more strict approach to what constitutes an “opportunity.” It is hard to understand how a question like “can you hook me up?” does not amount to an invitation for an individual to commit an offence or is any dif-ferent than the question posed by the officer in Barnes which was “Got any weed?”

Having identified reasons to be concerned about systemic racism in the specific context of entrapment, how is this relevant to the bona fide analysis? It is, of course, true that where police are using opportunity buys to address crime they reasonably suspect is occurring in a targeted area, they do not have to provide any reason on the entrapment hearing as to why they selected any particular individual. The upshot is, that in many cases, the issue of whether the individual was asked to provide drugs because of race will be difficult to prove absent an admission. For example, if asked, the officer’s testimony may be that the accused was approached for a drug deal because he was walking down the street and not because he fit the profile of the usual offender. Or, the officer may assert that the fact that the accused is Black is either a coinci-dence or simply consistent with the racial make-up of the area. This does not, 68 R v Imoro, 2010 ONCA 122 at para 16, 251 CCC (3d) 131, aff ’d Imoro (SCC), supra

note 9. 69 See ibid at paras 15–16. 70 Imoro (SCC), supra note 9.


however, remove the relevance of race or the problem of racial profiling from the analysis. In cases where a finding of profiling is available on the evidence, entrapment will be made out because the police investigation will be tainted by having been conducted for an improper purpose. That is what occurred in Faqi. But even outside of those cases, the concern about, and damage caused by, the over-policing of racialized individuals and neighbourhoods can im-pact on how “refined” or “sensitive”71 (to quote Justice McLachlin) the bona fide inquiry must be in a particular case. How systemic racism can impact the bona fides analysis is discussed in the next section. We first need to address how Justice McLachlin’s reasonableness approach, which opens the door for an anti-racist analysis, should now be seen as the law in light of recent Char-ter cases.

C. THE IMPACT OF CLAYTON AND KANG-BROWN

This article’s thesis is that Justice McLachlin’s balancing approach in Barnes is now constitutionally mandated following a series of recent cases involving the ancillary powers doctrine. The ancillary powers doctrine recognizes that where a police power interferes with liberty or freedom and is grounded in the execution of the duties of the police, the lawful exercise of that power requires some justification (i.e. demonstrating that the intrusion is both rea-sonable and necessary).72 In R v Godoy,73 the Supreme Court adopted the following test of reasonable justification as set out in Simpson:

71 Barnes, supra note 11 at 75 72 See R v Dedman, [1985] 2 SCR 2, 20 DLR (4th) 321 [Dedman], and its application of

the Waterfield test from R v Waterfield, [1964] 1 QB 164, [1963] 3 All ER 659 [Water-field]. Prior to Dedman, the Supreme Court had relied on Waterfield in R v Stenning, [1970] SCR 631, 10 DLR (3d) 224; R v Knowlton, [1974] SCR 443, 33 DLR (3d) 755.

73 R v Godoy, [1999] 1 SCR 311, 168 DLR (4th) 257 [Godoy]. In Godoy, the Supreme Court, applying the ancillary powers doctrine from Waterfield, recognized a police power to forcibly enter a dwelling where it is necessary to ascertain the health and safety of a 911 caller. In Godoy, the 911 call was disconnected before it could be determined whether or not there was an emergency.


[T]he justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the im-portance of the performance of that duty to the public good, the liberty in-terfered with, and the nature and extent of the interference.74

The Godoy analysis has been applied in a number of subsequent cases in-volving the judicial creation of police powers or sanctioning of investigative techniques including Mann,75 R v Orbanski,76 Clayton,77 and Kang-Brown.78 Based on these cases, and, in particular the latter two, it would appear that all judicially created police investigative powers that interfere with constitution-ally protected rights must now satisfy the common law ancillary powers test of “reasonable justification” to pass constitutional muster under sections 7 (the relevant site for entrapment given its abuse of process roots), 8, or 9 of the Charter. This principle was firmly established in Clayton where Justice Abella, in the context of the power to conduct a roadblock following a gun call, held:

If the police conduct in detaining and searching Clayton and Farmer amounted to a lawful exercise of their common law powers, there was no vio-lation of their Charter rights. If, on the other hand, the conduct fell outside the scope of these powers, it represented an infringement of the right under

74 Quoting from Simpson, supra note 37 at 499. 75 In Mann, supra note 3, the Supreme Court recognized a limited power to conduct inves-

tigative detentions applying the ancillary powers test of reasonable justification. A central element of that power is the existence of reasonable suspicion that the individual is impli-cated in a particular crime.

76 R v Orbanski, 2005 SCC 37, [2005] 2 SCR 3 [Orbanski]. In Orbanski, the SCC, relying on the application of the ancillary powers doctrine in Dedman, recognized a power to question drivers about their sobriety and to require them to perform sobriety tests.

77 Clayton, supra note 29. Clayton recognized, in accordance with the ancillary powers doc-trine, a power to conduct a reasonably tailored roadblock in cases involving a “genuine risk of serious bodily harm to the public.”

78 Kang-Brown, supra note 28 at paras 49–53 (as per Binnie J). As commented on at note 35, the issue in Kang-Brown was whether the police had a power, under the ancillary pow-ers doctrine, to conduct searches of individuals in bus terminals using sniffer dogs.


the Charter not to be arbitrarily detained or subjected to an unreasonable search or seizure. . . .

The statement that a detention which is lawful is not arbitrary should not be understood as exempting the authorizing law, whether it is common law or statutory, from Charter scrutiny. Previous decisions of this Court are clear that where a detention by police is authorized by law, the law authorizing de-tention is also subject to Charter scrutiny. The courts can and should develop the common law in a manner consistent with the Charter. The common law regarding police powers of detention, developed building on R v Waterfield and Dedman v The Queen is consistent with Charter values because it re-quires the state to justify the interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive to liberty than rea-sonably necessary to address the risk. The standard of justification must be commensurate with the fundamental rights at stake.79

She later observed that “[i]n determining the boundaries of police pow-ers, caution is required to ensure the proper balance between preventing ex-cessive intrusions on an individual’s liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protect-ing the public.”80

Does the ancillary powers’ reasonable justification test apply in the en-trapment context. Some may argue that what is at issue is not a police power but an investigative technique. A further argument would be that the addi-tional Charter scrutiny of Clayton/Kang-Brown does not apply to entrap-ment because there is no interference with liberty (i.e. the target is not de-tained when entrapped) or property. These arguments, however, are not grounded in either principle or precedent. It is true that no reference is made to ancillary powers in Mack even though Justice Lamer was a member of the Dedman majority, which used this doctrine in assessing the reasonableness of impaired driving checkpoints. However, Justice Lamer did not have to make a choice between using abuse of process or the ancillary powers doctrine. In 79 Clayton, supra note 29 at paras 19, 21 [citations omitted]. See also Cloutier v Langlois,

[1990] 1 SCR 158, 105 NR 241 [Cloutier]. 80 Clayton, supra note 29 at para 26 [emphasis added].


fact, the ancillary powers doctrine informs the abuse of powers doctrine, and this is precisely what Justice Lamer recognized in Mack. He essentially identi-fied a common law power in the police to engage in entrapment-like conduct under judicially controlled circumstances to ensure reasonable limits and no abuse of process.81

The distinction between a police power and investigative technique is far too fine to matter for the application of Clayton scrutiny. The focus should be on conduct not on the characterization. Indeed, in Godoy, Chief Justice Lamer refers to the ancillary powers test applying where the “police conduct constitutes a prima facie interference with a person’s liberty or property.”82 The issue between “power” and “technique” seems to have been put to rest with Justice Binnie’s opinion in Kang-Brown. In Kang-Brown, Justice Binnie recognized that a sniffer dog “is an investigative tool, not a ‘police power’ such as the powers to detain or to arrest.”83 Nevertheless, he held that the Court was responsible under the Charter to judicially control, using section 8 and the ancillary powers doctrine, new techniques and equipment used by the police in their fight against crime.84

As to the nature of the interference, entrapment clearly interferes with liberty. It threatens an individual’s right to be free from arbitrary state inter-ference and free from the state tempting an individual to commit an offence through random virtue testing. Interestingly, in R v Big M Drug Mart Ltd,85 a case involving religious freedom and Sunday closing laws, Justice Dickson, as he then was, defined freedom as if he were thinking about entrapment:

81 Mack, supra note 4 at 916–18, 941–42 [emphasis in original]. 82 Godoy, supra note 73 at para 12 [emphasis added]. 83 Kang-Brown, supra note 28 at para 54. 84 Ibid. Although Justice Binnie was writing for himself and the Chief Justice, it is clear that

Justices Bastarache, Deschamps, and Rothstein were concurring on this issue of using the ancillary powers doctrine to judicially recognize and control new police techniques. See ibid at paras 145, 149–59 (per Deschamps and Rothstein JJ); ibid at paras 224–25 (per Bastarache J).

85 [1985] 1 SCR 295, 18 DLR (4th) 321.


Freedom can primarily be characterized by the absence of coercion or con-straint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and cannot be said to be truly free. One of the ma-jor purposes of the Charter is to protect, within reason, from compulsion or restraint.86

Entrapment also impacts on liberty and equality because it can place an entire neighbourhood, shopping mall, or other area under the watchful eye of the state; thereby subjecting its residents to over-policing and harassment. There is a parallel to be found here with the Supreme Court’s harm analysis in R v Labaye.87 In Labaye, Chief Justice McLachlin, for the majority, recog-nized a public confrontation prong of her harm test for obscenity. Ground-ing this prong is the “autonomy and liberty of members of the public, to live within a zone that is free from conduct that deeply offends them.”88 Entrap-ment threatens the right of those that live, work, or play, in a zone that is free from confrontation with police operatives seeking to purchase contraband or sex from them. It is for many of those who live in these areas deeply offensive conduct given the mistrust of the police and marginalization that is often present in those neighbourhoods that are most likely to be subjected to puta-tive entrapment tactics.

The ancillary powers reasonable justification analysis has also been ap-plied in cases involving privacy issues such as assessing the police power to search incident to an investigative detention89 or arrest.90 Indeed, Clayton

86 Ibid at 336. 87 2005 SCC 80, [2005] 3 SCR 728. 88 Ibid at para 40. 89 See Mann, supra note 3 at paras 38–45. The Court recognized a power to conduct a pat-

down search of a detainee when there are reasonable grounds to believe that the safety of the officer or others is at risk.

90 See Cloutier, supra note 79 at 185–86. Cloutier applied the ancillary powers doctrine (at 181–82) and Clayton-like analysis to recognize a police power to conduct a frisk search following an arrest for officer safety where the objective is pursuit of the ends of criminal justice (e.g. officer and public safety, preventing escape or preservation of evidence). See also R v Caslake, [1998] 1 SCR 51 at paras 19–21, 155 DLR (4th) 19, where the Court


makes it clear that the analysis extends beyond physical liberty to interfer-ence with other core elements of our fundamental freedoms or constitution-ally protected interests including privacy (specifically referred to in Clayton) and equality. As discussed above, privacy (recognized in Mack91 and Barnes92) and equality (recognized in Mack93 and Barnes94) are both implicated by en-trapment.

One last argument in favour of a more rigorous bona fide inquiry needs to be addressed. In Kang-Brown, Justice Bastarche, in dissent and alone on this point, was of the view that the ancillary powers doctrine authorized a dog-sniffer search on the basis of either individualized reasonable suspicion or, in cases where the search occurs at a place of public transportation where “the police had a reasonable suspicion that drug activity might be occurring at the terminal, and reasonably informed passengers were aware of the fact that their baggage may be subject to a sniffer-dog search.”95 This is, in general terms, the bona fide test for entrapment. While it is true that a sniffer-dog search is more intrusive of privacy than an opportunity buy, the latter is not far removed from the dog-sniffer context. Indeed, when one factors in lib-erty, equality, and privacy interests implicated by entrapment, there is little difference between the two intrusions. What is significant about Kang-Brown is that Justice Bastarche was alone in extending reasonable suspicion to the location. Four justices held that individualized suspicion was required

expanded the Cloutier analysis by imposing both a subjective and objective analysis in as-sessing the purpose of the search. It held that a search of a vehicle six hours after the ac-cused’s arrest did not fall under the incident to arrest power because its purpose according to the searching officer was a routine inventory search and not a search for evidence.

91 Mack, supra note 4 at 941. 92 Barnes, supra note 11 at 479, 480–83 (per McLachlin J). 93 In rejecting a subjective or predisposition approach to entrapment, Justice Lamer was

concerned about equality. As he noted in Mack, supra note 4 at 955, “[t]o justify police entrapment techniques on the ground that they were directed at a predisposed individual is to permit unequal treatment” [emphasis added].

94 Barnes, supra note 11 at 481–82 (per McLachlin J). 95 Kang-Brown, supra note 28 at para 215.


for use of a sniffer dog.96 While this is not to suggest that the Supreme Court will abandon the generalized suspicion part of the bona fide inquiry, it is rea-sonable to think that they would now apply a more robust balancing test than applied by the majority in Barnes.

What should that balancing test look like to ensure compliance with the ancillary powers doctrine? Justice McLachlin, as she then was, identified a number of relevant factors in Barnes. There are other relevant factors that we can identify to help protect against discriminatory policing. Taking all of these into account, the police and courts should consider whether the police conduct is reasonable by carefully examining:

· The crime being investigated (i.e. its seriousness); · The likelihood of crime at the particular location where the indi-

vidual was targeted; · The nature of the location;

· Is the area residential or commercial? · What is the diversity of activity that takes place? · How many people regularly travel through the area? · What is the racial make-up of the location? · Is racial profiling an identified problem? · Does the location raise other equality concerns?

· The specificity of the location; · Time of day and number of individuals likely to be impacted by the

targeting; · How often opportunity buys have been used in the particular area; · The availability of other investigative techniques.

The impact of adding Clayton to the bona fide inquiry can be seen in a number of cases. For example, the equality concerns present in cases involv-ing racialized neighbourhoods may limit the ability of the police to conduct opportunity buys. For example, not permitting such techniques where the drug being sought is marijuana or hashish. We might also apply more strictly some of identified factors above, such as the size of the area and the availabil-

96 See supra note 35 for a breakdown of the opinions in Kang-Brown.


ity of other investigative techniques. We may also seek community input on whether and, to what extent, opportunity buys should be permitted.

R v Yee97 provides another opportunity to consider the impact of a more “refined” approach. In that case, the police conducted an undercover buy operation for ecstasy at a Rave dance party at the Pacific Coliseum in Van-couver. There were apparently upwards of five thousand people at the rave. The operation known as “Project Twilliger” used three undercover officers to approach individuals looking to purchase ecstasy. Again, given the size of the targeted group in such a confined area, there was the potential for a signifi-cant number of individuals to be confronted by the operation. Notwith-standing that the police may have had reasonable suspicion that ecstasy was being sold at this particular rave based on prior incidents, the investigation had, given the size of the targeted group, all of the hallmarks of random vir-tue testing. In addition, there was no evidence regarding how “random” the approaches were. Is it a coincidence, for example, that the three recent British Columbia cases dealing with ecstasy opportunity buys at Pacific Coliseum raves involved accused with Asian names?98 Applying a more “refined” ap-proach to the bona fides of the investigation may have led the Court in Yee to come to a different conclusion.99

IV. CONCLUSION

This article has attempted to summarize the Canadian law on entrapment. It has tried to demonstrate that Charter cases post-Barnes have breathed new life into entrapment and require us to re-think many of its constituent ele-ments. In particular, cases like Clayton and Kang-Brown raise the strong pos-sibility that the Court will now engage in a more vigorous balancing as part of the bona fide analysis to protect against discriminatory policing. The focus of the article has been on entrapment in the “war on drugs.” However, we will need to continue to think creatively as our courts are confronted with new issues as entrapment becomes a tool to investigate crimes involving terror-

97 Yee, supra note 55. 98 In addition to Yee, supra note 55, see Chu, supra note 55; Chau, supra note 55. 99 The trial judge concluded that there was no entrapment.


ism100 and internet offences that are difficult to detect without elaborate sting or undercover operations. If, in fact, we begin to see a more “refined” and “sensitive” bona fide investigation inquiry, we may see entrapment become a more meaningful way of holding our system accountable for the arrest of largely vulnerable and marginalized individuals for activity that the police have set in motion, as well as for the police harassment of countless others who resist the temptation.

100 The issue of entrapment and terrorism prosecutions has received academic treatment in

the United States, where there have been more terrorism prosecutions than in Canada. See e.g. Jon Sherman, “A Person Otherwise Innocent: Policing Entrapment in Preventa-tive, Undercover Counterterrorism Investigations” (2009) 11 U Pa J Const L 1475; Dru Stevenson, “Entrapment and Terrorism” (2008) 49 BCL Rev 125. In Canada, there have only been two post-9/11 terrorism prosecutions (R v Khawaja (2008), 238 CCC (3d) 114, 79 WCB (2d) 888 (Ont Sup Ct J) and the Toronto 18 case). However, the issue has been raised in two of the Toronto 18 prosecutions. See “Toronto 18 member found guilty: Defence alleges entrapment” CBC News (21 January 2010), online: CBC News <http://www.cbc.ca>. See also “Guilty verdict stands in Toronto bomb-plot trial, judge rules” CBC News (24 March 2009), online: CBC News <http://www.cbc.ca>.

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RETHINKING THE BONA FIDES DAVID M. TANOVICH · RETHINKING THE BONA FIDES OF ENTRAPMENT ... 4 R v Mack, [1988] 2 SCR 903, [1989] 1 WWR 577 [Mack cited to SCR]. On the same ... develop