CREATING A BIG MACK ENTRAPMENT AND THE CHARTERweb4.uwindsor.ca/.../0/...EntrapmentandtheCharter.pdf · CREATING A BIG MACK: ENTRAPMENT AND THE CHARTER By Professor David M. Tanovich

C r i m i n a l L a w y e r s A s s o c i a t i o n ( O n t a r i o ) A n n u a l C o n f e r e n c e ( 2 7 / 1 1 / 0 9 ) P a g e | 1

________________________________________________________________________ This paper is a work in progress. Not to be cited without permission of the author. Please send comments to [email protected].

CREATING A BIG MACK:

ENTRAPMENT AND THE CHARTER

By

Professor David M. Tanovich (Faculty of Law, University of Windsor) (*Academic Director, Law Enforcement

Accountability Project (LEAP))

INTRODUCTION

Entrapment is as old a police tactic as coercive interrogation. In the

ageless war on consensual crimes such as drugs and prostitution, the police

frequently resort to tactics that trick individuals into committing offences. The

common refrain is that such stratagems are necessary as a means of crime control

because there is often not a victim to file a complaint. And, for a long time, our

criminal justice system was not held accountable. Regulating the solicitation of

crime by police was historically never high on the Supreme Court of Canada’s

radar.1 It wasn’t until the late 1970s/early 1980s that the Supreme Court seriously

danced with the idea of an entrapment defence in cases like R. v. Kirzner2 and R.

v. Amato3 but even then did not definitively decide the issue. Similarly, in

1 See the discussion in Levy, “Police Entrapment – A Note on Recent Developments” (1970-71), 35 Sask. L. Rev. 181 and, in particular, his discussion of R. v. Wray, [1971] S.C.R. 272 and R. v. Osborn, [1971] S.C.R. 184 as it relates to the Supreme Court’s unwillingness to use exclusion of evidence and abuse of process as a means of controlling the police and remedying oppressive prosecutions. See too the discussion in Sneideman, “A Judicial Test for Entrapment: The Glimmerings of a Canadian Policy on Police-Instigated Crime” (1973-73), 16 C.L.Q. 81. This is not to say that concern about entrapment was not expressed in the lower courts. Indeed, in a 1916 decision involving selling liquor contrary to the Liquor License Act, a trial judge observed that it is one thing to use trickery to obtain evidence of an offence already committed but quite another “for the purpose of inducing its commission, and inducing its commission in order that the person [engaged in the trickery] may be able to prefer a charge for the offence committed at his solicitation.” See Amsden v. Rogers, [1916] S.J. No. 2 (S.C. Chambers). Nevertheless, it was not until 1970 that a prosecution was stayed as a result of entrapment. See R. v. Shipley [1970], 3 C.C.C. 398 (Ont. County Ct.). 2 [1978] 2 S.C.R. 487. The only other earlier Supreme Court decision of note was the passing obiter comment in R. v. Lemieux, [1967] S.C.R. 492 that solicitation by an agent provocateur is irrelevant to the question of guilt or innocence. 3 [1982] 2 S.C.R. 418. Justice Estey, in dissent and writing for three other justices, was prepared to recognize the legitimacy of entrapment as a relevant inquiry in criminal



England, the House of Lords, as late as 1980 declared in R. v. Sang,4 that no

remedy, outside of sentence mitigation, was available for entrapment.5

Mack: The Supreme Court Recognizes Entrapment

It wasn’t until 1988, in R. v. Mack,6 a case involving drug trafficking, that

the Supreme Court of Canada finally recognized entrapment as a justiciable issue

in criminal trials. Concerned about the ability of the justice system to protect

against over-reaching police investigations, Justice Lamer, as he then was, found

jurisdiction for an entrapment defence in the common law/Charter abuse of

process doctrine.7 In doing so, he rejected the American subjective “state of

mind” or predisposition test for a largely objective inquiry into the police

methodology whether it be opportunity buys or other forms of random virtue

testing,8 use of informers, decoys, stings, or even reverse stings.9 The Court thus

made clear that entrapment is not a substantive defence in the traditional sense

of focusing on the culpability of the accused. It is better conceived of as a narrow

procedural defence aimed at protecting the integrity, purity and dignity of the

administration of justice. Accordingly, the issue is decided by the trial judge after

a finding or plea of guilt, and, the remedy is a stay of proceedings as opposed to

an acquittal.10

trials. The majority opinion limited their decision to a conclusion that no entrapment arose on the facts of the case and, therefore, they did not address the broader substantive question. 4 [1980] A.C. 4 (H.L.). This is to be contrasted with the United States where the Supreme Court recognized entrapment as a defence in 1932 with Sorrells v. United States, 287 U.S. 435. 5 Sang has now been overtaken by statutory and common law developments. See the discussion in R. v. Loosely, [2001] UKHL 53. 6 [1988] 2 S.C.R. 903 [hereinafter Mack]. 7 Justice Lamer had been a member of the Estey dissent in Amato. 8 See, for example, R. v. Barnes, [1991] 1 S.C.R. 449 [hereinafter Barnes]. 9 See, for example, R. v. Campbell, [1999] 1 S.C.R. 565. 10 See R. v. Pearson, [1998] 3 S.C.R. 620 at paras. 8-12. There is strong support for the proposition that a stay must be entered upon a finding of entrapment. In Mack, supra note 6 at para. 153, for example, Justice Lamer pointed out that his legal test of entrapment is designed to catch only the “clearest of cases” which is the test for a stay of proceedings. See also, R. v. Brown (1999), 139 C.C.C. (3d) 492 (S.C.C.) and the discussion in Colvin and Anand, Principles of Criminal Law (3rd ed.) (Toronto: Carswell, 2007) at fn. 597 at 409 (hereinafter Principles of Criminal Law). Most recently, in R. v.



The Entrapment Test

In Mack, the Supreme Court recognized that because of the difficulty of

detection, the state must be given “substantial leeway” to develop and utilize

effective investigative techniques particularly in victimless or consensual crimes.

For Justice Lamer “[i]f the struggle against crime is to be won, the ingenuity of

criminals must be matched by that of the police; as crimes become more

sophisticated so too must be the methods employed to detect their

commission.”11 Using tactics that provide an opportunity for the accused to

commit a crime was seen by the Court as necessary and, therefore, a reasonable

limit on the individual’s right to be left alone by the state. Although Justice Lamer

did not specifically refer to the common law ancillary powers doctrine which

assesses the reasonableness of police powers that arise out of their duty to

investigate crime,12 it is clear that he was engaged in that kind of justificatory

analysis. He essentially recognized a common law power in the police to engage

in entrapment-like conduct under judicially controlled circumstances to ensure

reasonable limits.13

According to Mack, police participation in the manufacture of crime

becomes unlawful entrapment when the defence can establish, on a balance of

probabilities, one of the following prongs:

Swan (2009), 244 C.C.C. (3d) 108 at para. 46 (B.C.C.A.), the Court of Appeal 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.” 11 Mack, supra note 6 at para. 16. 12 According to this doctrine, police powers which interfere with liberty or freedom are only authorized by the common law where (1) the police are acting in the course of their duty; and, (2) the conduct of the police did not involve an unjustifiable use of powers in the circumstances. See, for example, the discussion in R. v. Clayton, [2007] 2 S.C.R. 725 at paras. 19-31 (as per Abella J.) [hereinafter Clayton]; and, R. v. Kang-Brown, [2008] 1 S.C.R. 456 at paras. 49-53 (as per Binnie J.) [hereinafter Kang-Brown]. 13 It would be 11 years later when Justice Lamer, now Chief Justice, would specifically advert to the ancillary powers doctrine to create a police power to break into a private residence in response to a disconnected 911 call. See R. v. Godoy, [1999] 1 S.C.R. 311 [hereinafter Godoy]. The issue of the relationship between the ancillary powers doctrine and entrapment is discussed later in this paper.



(a) The police provide an opportunity to commit an offence in the absence of reasonable suspicion that the target is involved in criminal activity or in the absence of a bona fide investigation;14 or,

(b) The police go beyond providing an opportunity and induce the

commission of the offence through deceit, fraud, trickery or reward, violence or other conduct.15

With respect to the second prong, Mack identifies the following relevant

factors to take into consideration in assessing the issue of inducement:

-- the type of crime being investigated and the availability of other techniques for the police detection of its commission; -- whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;16 -- the persistence and number of attempts made by the police before the accused agreed to committing the offence; -- the type of inducement used by the police including deceit, fraud, trickery or reward;17 -- the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; -- whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;18

14 Mack, supra note 6 at para. 130. The most recognized example of a bona fide investigation is where the police are investigating criminal activity and have reasonable suspicion that the criminal activity under investigation is occurring at a particular geographic location. See Barnes, supra note 8. 15 Mack, supra note 6 at paras. 119; 125; 130. 16 See R. v. Evans (1996), 2 C.R. (5th) 106 (B.C.S.C.) where a stay was entered because of the exploitation of a mentally challenged individual. 17 See R. v. El-Sheikh-Ali, [1993] O.J. No. 2413 (Gen. Div.) where the inducement was the prospect of an intimate relationship. But see, R. v. Chu, [2009] B.C.J. No. 450 (P.C.) where the Court held that the officer’s dancing with the accused in a non-sexual manner at a rave was not an inducement. 18 See R. v. Mandelman (1997), 12 C.R. (5th) 191 (Alta. P.C.).



-- whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;19 -- 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; -- the existence of any threats, implied or express, made to the accused by the police or their agents; and, -- whether the police conduct is directed at undermining other constitutional values.20

As for the application of its legal test, the Mack Court was satisfied that it

had been met on the facts of the case and stayed Mack’s finding of guilt. While

the Court was satisfied that the police had reasonable suspicion to conclude that

he was involved in selling drugs, their methods went too far in trying to get him

to return to his criminal past. In particular, Justice Lamer pointed to the (i)

persistence of the police requests and refusals; (ii) the length of time (six months)

to get him to agree to traffic; and, most significantly, (iii) the threatening

behaviour of the police operative.21

Success Rates Post-Mack

While Mack was successful in securing a stay, there has always been the

sense amongst lawyers and academics that entrapment is a rare finding in

Canadian criminal trials.22 Indeed, one might wonder why it is being featured

with this year’s conference topic of the top ten criminal defences! To test this

assumption, my research assistant (Minoo Alipour Birgani) and I are in the midst

19 See R. v. S.(J.) (2001), 152 C.C.C. (3d) 317 (Ont. C.A.) where the Court of Appeal found that the police had gone too far in approaching a youth at a Marilyn Mason concert to try and purchase marijuana by saying “Come on, man, it's okay, just a dime. It's all right. Do me a favour." There was also evidence that the youth was concerned about his safety because the officer was much bigger and older. 20 Mack, supra note 6 at para. 133. 21 Ibid. at paras. 158-159. 22 See, for example, Stuart, Canadian Criminal Law (5th ed.) (Toronto: Carswell, 2007) at 617.



of conducting a survey of cases on the QuickLaw database where entrapment was

raised as an issue.

We have first examined the second decade of Mack - from 1999 to 2009

(October). We found forty-seven (47) entrapment criminal cases. In nine (9)

cases, there was a finding of entrapment.23 This works out to a nineteen percent

(19%) success rate. Perhaps what is surprising is not the success rate, but rather,

the small number of total cases. A 19% success rate is arguably quite high

considering the narrow roots of the test and the usual deference courts give to

police discretion in the investigative context. We are now embarking on a survey

of the first decade of entrapment post-Mack (i.e. 1988-1998). So far, we have

found fourteen (14) reported cases that were stayed on the basis of entrapment.24

Our initial numbers suggest an approximate success rate of twenty percent

(20%).

23 These cases include R. v. Swan (2009), 65 C.R. (6th) 240 (B.C.C.A.); R. v. Mann, [2009] A.J. No. 893 (P.C.); R. v. Arriagada, [2008] O.J. No. 5791 (S.C.J.); R. v. Imoro (2008), 59 C.R. (6th) 109 (Ont. S.C.J.); R. v. McGivern, [2007] Y.J. No. 40 (T.C.); R. v. Peters, [2002] O.J. No. 496 (S.C.J.); R. v. S.(J.) (2001), 152 C.C.C. (3d) 317 (Ont. C.A.); R. v. Costain, [1999] N.S.J. No. 433 (P.C.); and, R. v. Brown, [1999] 3 S.C.R. 660. 24 See R. v. Mandelman (1997), 12 C.R. (5th) 191 (Alta. P.C.); R. v. Schiller, [1997] O.J. No. 3141 (Gen. Div.); R. v. Evans (1996), 2 C.R. (5th) 106 (B.C.S.C.); R. v. Smith, [1995] N.S.J. No. 285 (C.A.); R. v. Ferrant, [1994] O.J. No. 2599 (Gen. Div.); R. v. El-Sheikh-Ali, [1993] O.J. No. 2413 (Gen. Div.); R. v. Swerbus, [1992] O.J. No. 1870 (P.D.); R. v. Fehr, [1990] A.J. No. 1081 (P.C.); R. v. Dusang, [1990] O.J. No. 1629 (P.C.); R. v. Whellihan, [1990] B.C.J. No. 1678 (S.C.); R. v. Schieman, [1990] O.J. No. 2700 (P.C.); R. v. Kenyon (1990), 61 C.C.C. (3d) 538 (B.C.C.A.); and, R. v. Fortin, [1989] O.J. No. 123 (C.A.).



Entrapment Cases 1999-2009

The Future of Entrapment in Canada

This then brings me to why I wanted to talk about entrapment at this

year’s conference. I suspect that as the war on drugs and guns intensifies under

the Harper regime, that the police will resort to more opportunity buys and

similar tactics. And, it is marginalized and racialized neighbourhoods that will

continue to feel the brunt of this aggressive pro-active policing. How can criminal

lawyers respond? It is my view, that there have been significant Charter

developments since Mack that should serve to strengthen the entrapment

defence. When coupled with the relatively modest success rate applying the

traditional Mack test, I am optimistic that we will see more cases being argued in

the future. With this flurry of activity and judicial development, we may see

entrapment become a meaningful way of holding our system accountable for the

arrest of individuals for activity that the police have set in motion as well as for

the police harassment of countless others who resist the temptation. These



Charter and some additional novel arguments are discussed in the remainder of

this paper.

CHARTER ARGUMENTS

A Clear Meaning for Reasonable Suspicion

As is evident from the first prong of the Mack test, reasonable suspicion

factors prominently in the entrapment analysis. However, Mack did not define

reasonable suspicion and the only guidance from Justice Lamer on its application

comes from his observations that the suspected criminality of the target must

relate to the crime under investigation;25 and, that the target’s criminal record is

a relevant but not conclusive factor.26 Following Mack, some courts refused to

provide a definition while others have looked to other areas of the law for

guidance. For example, in R. v. Cahill,27 Justice Wood observed:

In Regina v. Mack, [1988] 2 S.C.R. 903, Mr. Justice Lamer, (as he then was), did not define the burden or threshold of evidence required to meet the standard of "reasonable suspicion". In my view, it would be unwise to attempt to do so. What will give rise to a reasonable suspicion, in the context under discussion, will necessarily depend on all of the circumstances facing the investigating authorities and thus will vary from case to case.28

Over the last few years, reasonable suspicion has become a familiar legal

standard as the Supreme Court has recognized new police powers under the

common law ancillary powers doctrine.29 Most recently, in Kang-Brown, Justice

Binnie set out the following approach to reasonable suspicion:

25 So, for example, in Mack, supra note 6 at para. 116, Justice Lamer observed:

… there must 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. For example, if an individual is suspected of being involved in the drug trade, this fact alone will not justify the police providing the person with an opportunity to commit a totally unrelated offence.

26 Mack, supra note 6 at paras. 116, 118. So, for example, the Ontario Court of Appeal held in R. v. Fortin, [1989] O.J. No. 123 (C.A.), that proof of drug use did not give rise to a reasonable suspicion that he was a trafficker. The Court stayed his conviction. 27 (1992), 13 C.R. (4th) 327 (B.C.C.A.). 28 Ibid. at para. 20. 29 See, for example, R. v. Mann, [2004] 3 S.C.R. 59 [hereinafter Mann].



75 The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. … Writing about "reasonable suspicion" in the context of the entrapment defence, Lamer J. in R. v. Mack, [1988] 2 S.C.R. 903, thought it unwise to elaborate "in the abstract" (p. 965). … However, in Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted "reasonable suspicion" with reasonable grounds of belief (or, what the U.S. lawyers call "probable cause"):

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [p. 330]

76 The U.S. Fourth Amendment cases were reviewed by the Ontario Court of Appeal in connection with investigative stops based on reasonable suspicion in R. v. Simpson (1993), 12 O.R. (3d) 182, where Doherty J.A. concluded, at p. 202:

These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard ... serves to avoid indiscriminate and discriminatory exercises of the police power. [Emphasis added.]

The Court of Appeal stated that a hunch based on intuition gained by experience cannot suffice as "articulable cause". The Simpson description of "articulable cause" … applies to "reasonable suspicion" in the present context as well. …

77 It is important to emphasize the requirement for objective "articulable" grounds, as did the B.C. Court of Appeal in R. v. Lal (1998), 113 B.C.A.C. 47, at para. 23:

The fundamental point is that the trial judge must be in a position to make an independent assessment of the facts upon which the suspicion is

based.30

Kang-Brown thus makes clear that reasonable suspicion is not a hunch, it

is not generalized suspicion and it requires an objective assessment of the facts.

In addition, the reliability of information obtained from police sources is a

30 Supra note 12 at paras. 75-77.



relevant consideration in assessing whether the standard is met. Since Mack,

most of the cases dealing with reasonable suspicion under the first prong have

involved the sufficiency of the information given to the police from an informer

or from an anonymous or Crime Stopper tip.31 Some of these cases include:

R. v. Swan (2009), 244 C.C.C. (3d) 108 (B.C.C.A.) 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] O.J. No. 5791 (S.C.J.) 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 insufficient in absence of any corroboration to permit police to call number and ask for “half a B.”32 R. v. Imoro (2008), 59 C.R. (6th) 109 (Ont. S.C.J.) No reasonable suspicion based on anonymous tip that Black male on 12th floor of apartment selling drugs to ask Black male on 12th floor of same apartment building “can you hook me up?”

Adding Clayton to the Bona Fide Inquiry In Barnes, the Supreme Court of Canada addressed the second part of the

first prong of the Mack test --- the bona fide requirement. Barnes was convicted

of trafficking one gram of hashish to an undercover officer near the Granville

Mall area of Vancouver. He was ensnared by a “buy and bust” operation

conducted by the Vancouver Police Department. The judgment does not tell us

whether Barnes was racialized. However, it is clear that the officers were engaged

31 In addition to the cases listed below, see R. v. Mann, [2009] A.J. No. 893 (P.C.); R. v. Meerza, [2006] O.J. No. 2983 (S.C.J.); R. v. B.(S.) (2005), 196 C.C.C. (3d) 333 (Ont. C.J.); R. v. Peters, [2002] O.J. No. 496 (S.C.J.); R. v. Benedetti, [1997] A.J. No. 536 (C.A.); R. v. Virgo, [1993] O.J. No. 2618 (C.A.); and, R. v. Cahill (1992), 13 C.R. (4th) 327 (B.C.C.A.). 32 The Court contrasted the case with earlier decisions such as R. v. Townsend, [1997] O.J. No. 6516 (S.C.J.); and, R. v. Bogle, [1996] O.J. No. 1768 (Gen. Div.) where the police had taken neutral steps to confirm the tip. But see R. v. Peters, [2002] O.J. No. 496 (S.C.J.) where similar steps (e.g. leaving a message on a pager, asking if the target could help out) did not serve to corroborate the tip.



in profiling. In explaining why she approached 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.”33

A majority of the Court concluded that while the police did not have

reasonable suspicion to link Barnes to drug trafficking, the police were engaged

in a bona fide investigation and, therefore, the procedural defence of entrapment

failed. The Court noted that the police conduct was motivated by “the genuine

purpose of investigating and repressing criminal activity.”34 In addition, the

police had “reasonable grounds for believing that drug-related crimes were

occurring throughout the Granville Mall area.”35 Despite the fact that the area

involved six blocks and that the particular location where Barnes sold the drugs

was not known for trafficking, Justice Lamer, for the majority, held that:

The police department in this case focused its investigation on an area of Vancouver, a section of Granville Street covering approximately six city blocks, where it was reasonably suspected that drug-related crimes were occurring. In my opinion, they would not have been able to deal with the problem effectively had they restricted the investigation to a smaller area. Although there were particular areas within the Granville Mall where drug trafficking was especially serious, it is true that trafficking occurred at locations scattered generally throughout the Mall. It is also true that traffickers did not operate in a single place. It would be unrealistic for the police to focus their investigation on one specific part of the Mall given the tendency of traffickers to modify their techniques in response to police investigations.36

It seems based on his opinion, that Justice Lamer would limit the balancing in

cases involving so-called “hot spots” to a question of the size of the area and

33 Supra note 8 at 456. 34 Ibid. at 460. 35 Ibid. The reference to “reasonable grounds for believing” was a mis-statement as it is clear that Justice Lamer had in mind reasonable grounds for suspecting given the other references in the judgment to reasonable suspicion. 36 Ibid. at 461 (emphasis added).



whether the target area is “defined with sufficient precision.”37 As he noted, “… in

many cases, the size of the area itself may indicate that the investigation is not

bona fide. This will be particularly so when there are grounds for believing that

criminal activity being investigated is concentrated in part of a larger area

targeted by the police.”38

In her dissenting opinion, Justice McLachlin, as she then was, was

satisfied that a more vigorous balancing of the competing interests should be

undertaken in assessing whether the police investigation is a bona fide one.39 She

grounded her concern 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 techniques 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.40

For Justice McLachlin, a bona fide investigation is one that has taken into

account a measure of the relative harms:

I conclude that determination that the police were operating in the course of a bona fide inquiry within the meaning of Mack requires the Court to consider not only the motive of the police and whether there is a crime in the general area, but also other factors relevant to the balancing process, such as the likelihood of crime at the particular location targeted, the seriousness of the crime in question, the number of legitimate activities

37 Ibid. at 463. For a case where the area was deemed not precise, see R. v. Benjamin, [1994] O.J. No. 1373 (Ont. C.A.) [in Chambers]. Justice Carthy refused to extend the time for the Crown to appeal the stay because in his view there was no merit to the argument that the trial judge had erred. In Benjamin, the targeted area was described by the trial judge as stretching from “Yonge to River Streets along Dundas with undetermined width to the north and south.” 38 Supra note 8 at 462. 39 As she puts it (Ibid. at 480):

The reasoning in Mack recognizes that the law of entrapment is based on a balance of competing interests. On the one hand lie the individual’s interests – the interest in being left alone, free from state intrusion, and the interest in not being induced by the state to commit an offence (Mack, at p. 941). On the other lies the state’s competing interest in protecting society from crime. …

40 Barnes, supra note 8 at 481-482 (emphasis added).



and persons who might be affected, and the availability of other less intrusive techniques. In the final analysis, the question is 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.41

Applying her balancing approach, Justice McLachlin concluded that the police

investigation was not reasonable. The area was simply too large and involved a

diverse array of daily activities involving thousands of individuals. In addition,

there was no evidence that trafficking was taking place at the location where

Barnes was arrested or any evidence of rotating locations to avoid detection.

Finally, the actual crime itself was not that serious as it involved an ounce of

hashish and the police could have used their observation skills to detect

traffickers.

Justice McLachlin was right to be concerned about the discriminatory

effects of putative entrapment and of the need, therefore, to add an equality

analysis to the balancing under Mack. It is now recognized that racial profiling is

a serious problem in Canadian society.42 Over-policing of racialized

neighbourhoods causes tremendous harm. As Justice Doherty noted in Peart v.

Peel Regional Police:

It is offensive to fundamental concepts of equality and the human dignity of those who are subject to negative stereotyping. It fuels negative and destructive racial stereotyping of those who are subjected to profiling. Racial profiling will also ultimately undermine effective policing both by misdirecting valuable and limited resources and by alienating law-abiding members of the community who are members of the targeted race …43

41 Ibid. at 482. 42 As the Ontario Court of Appeal recognized in Peart v. Peel Regional Police (2006), 43 C.R. (6th) 175 (Ont. C.A.) at para. 94:

The community at large and the courts, in particular, have come, some would say belatedly, to recognize that racism operates in the criminal justice system: see e.g. R. v. S.(R.D.), supra; R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.). With this recognition has come an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it.

See too R. v. Brown (2003), 173 C.C.C. (3d) 23 (Ont. C.A.); Phipps v. Toronto Police Service, [2009] OHRTD No. 877; and, Nassiah v. Peel (Regional Municipality) Services Board, [2007] OHRTD No. 14. 43 Peart, supra note 42 at para. 43.



It also causes tremendous psychological and physical harm, mistrust and

alienation.44

The case of R. v. Sterling45 illustrates the dangers of not engaging in an

equality analysis in entrapment cases. In Sterling, members of the Toronto Drug

Squad East set up an opportunity buy operation on Eglinton Avenue East

between Markham Road and McCowan Road (approximately a ½ mile area). At

9:45 p.m., an undercover officer observed a “possible suspect” walking down a

road in that designated area. The following 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 following 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 activity 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".46

It is clear on his evidence that the officer used race in deciding to provide an

opportunity buy to Sterling. This is the essence of racial profiling and should have

been factored in by the trial judge in assessing whether this was a bona fide

investigation. As Professor Quigley observes in his comment on the case:

In the wake of R. v. Mann … and Justice LaForme’s own decision in R. v. Ferdinand …, it is somewhat surprising that he did not consider the issue of the accused’s race and the question of racial profiling in his assessment of reasonable suspicion and target area. 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 those factors.47

44 See Tanovich, The Colour of Justice: Policing Race in Canada (Toronto: Irwin Law, 2005); and, Paying the Price: The Human Cost of Racial Profiling (Toronto: Ontario Human Rights Commission, 2003). 45 (2004), 23 C.R. (6th) 54 (Ont. S.C.J.). 46 Ibid. at paras. 6-7. 47 “Annotation” (2004), 23 C.R. (6th) 55.



Similar equality concerns were raised by Justice Spies in R. v. Imoro.48 In

Imoro, the police received a tip that a Black male was selling drugs on the 12th

floor of an apartment building. When the undercover officer got to the 12th floor,

he saw the accused, a Black male, and asked “can you hook me up?” In addition

to finding the absence of individual or area reasonable suspicion, the trial judge

expressed concern about the risk of 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 building, nor did it provide a name or telephone number for him. The identification 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, violence, engendering of a mistrust of the police and criminal justice system, among others. Endorsing the use of such bare suspect descriptions by the police is something to be cautioned. In my view, the fact that Mr. Imoro happens to be black, and happened to be on the 12th floor, did not corroborate the tip in any way.49

Returning back to the legal test for bona fide inquiry, it is submitted that

Justice McLachlin’s approach is much more consistent with the Charter and, in

particular, the Supreme Court’s now entrenched use of the ancillary powers to

assess the reasonableness of police powers than Justice Lamer’s opinion. As

noted earlier, this doctrine recognizes that where a police power is grounded in

the execution of the duties of the police (as the bona fide inquiry is for

entrapment), the lawful exercise of that power requires some justification (i.e.

demonstrating that the intrusion is reasonably necessary).50 Indeed, following

cases like Godoy, Mann, Clayton, and, Kang-Brown, it would appear that all

police investigative powers that interfere with individual liberty or freedom (such

as privacy and equality) must satisfy the common law test to pass constitutional

48 (2008), 59 C.R. (6th) 109 (Ont. S.C.J.). 49 Ibid. at para. 51. 50 In Godoy, supra note 13 at para. 18, the Supreme Court adopted the following approach to Waterfield developed by Justice Doherty in R. v. Simpson (1993), 79 C.C.C. (3d) 482 at 499 (Ont. C.A.):

[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 importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.



muster under sections 7 (the relevant site for entrapment given its abuse of

process roots), 8 or 9 of the Charter. As Justice Abella held in Clayton, in the

context of the power to detain:

The common law regarding police powers of detention, developed building on R. v. Waterfield, [1963] 3 All E.R. (C.A.), and Dedman v. The Queen, [1985] 2 S.C.R. 2, is consistent with Charter values because it requires 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 reasonably necessary to address the risk.51

She later observed that “[i]n determining the boundaries of police powers,

caution is required to ensure the proper balance between preventing excessive

intrusions on an individual’s liberty and privacy, and enabling the police to do

what is reasonably necessary to perform their duties in protecting the public.”52

Relevant considerations in the balancing should include:

• the crime being investigated;

• 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?

• time of day;

• the racial make-up of the area;

• whether there have been community consultations;

• whether racial profiling is an identified problem in the area;

• whether the targeting involves another section 15 protected group, for example, the targeting of gay bath houses53 or suspected prostitutes;54

• the specificity of the location – the greater the potential for equality harms, the narrower it should be; and finally,

51 Supra note 12 at para. 21. See also Cloutier v. Langlois, [1990] 1 S.C.R. 158. 52 Supra note 12 at para. 26. 53 See, for example, R. v. Zakreski, [2004] A.J. No. 595 (P.C.). 54 See, for example, R. v. P.(N.M.), [1999] N.S.J. No. 279 (P.C.) aff. (2000), 146 C.C.C. (3d) 167 (N.S.C.A.).



• the availability of other investigative techniques.

The New Constitutional Standard of Moral Involuntariness

In Mack, Justice Lamer rejected the characterization of entrapment as a

defence sharing characteristics with duress although he did acknowledge that in

some cases, an alternative duress defence might be available depending on the

nature of the threats. While recognizing that normative or moral involuntariness

grounds defences like necessity and duress, Mack distinguished duress from

entrapment because, in the Court’s view, the latter does not, generally speaking,

involve circumstances which were “truly oppressive and threatening so that the

accused’s decision to break the law is one which the community can both

comprehend and absolve.”55 As Justice Lamer held:

The accused in a typical entrapment situation is not being threatened with death or bodily harm and nor is peril imminent. I agree that there is a limit, imposed by external events, on the accused’s freedom of choice of action in all three cases of duress, necessity and entrapment; there is, however, a great difference in the quality and degree of pressure in the entrapment situation: it is less intense and the circumstances are not morally agonizing to the accused.56

However, in R. v. Ruzic,57 the Supreme Court of Canada held that the

principle of moral involuntariness is now a principle of fundamental justice

under section 7 of the Charter. It then used the principle to read out the

imminence and presence requirements of the statutory duress defence under

section 17 of the Criminal Code. Like entrapment, moral involuntariness does not

negate the actus reus or mens rea of an offence.58 But, for our purposes, the real

significance of Ruzic extends beyond its constitutionalization of moral

involuntariness to the parameters of this new constitutional standard. As Justice

LeBel held:

55 Mack, supra note 6 at para. 93. 56 Ibid. at para. 95. 57 (1998), 128 C.C.C. (3d) 97 (Ont. C.A.). 58 Ibid. at para. 47.



Even before the advent of the Charter, it became a basic concern of the criminal law that criminal responsibility be ascribed only to acts that resulted from the choice of a conscious mind and an autonomous will. In other words, only those persons acting in the knowledge of what they were doing, with the freedom to choose, would bear the burden and stigma of criminal responsibility. … Punishing a person whose actions are involuntary in the physical sense is unjust because it conflicts with the assumption in criminal law that individuals are autonomous and freely choosing agents … It is similarly unjust to penalize an individual who acted in a morally involuntary fashion. This is so because his acts cannot realistically be attributed to him, as his will was constrained by some external force. As Dennis Klimchuk states … the accused’s agency is not implicated in her doing. In the case of morally involuntary conduct, criminal attribution points not to the accused but to the exigent circumstances facing him, or to the threats of someone else. … It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability. Depriving a person of liberty would infringe the principles of fundamental justice if the person did not have any realistic choice.59

Entrapment engages the idea of moral involuntariness because it works to

exploit through temptation the general vulnerability in all of us to commit

offences;60 and, the specific vulnerability of those facing poverty or systemic

racism. It should be pointed out that this latter vulnerability is not grounded in a

propensity analysis but rather in a disproportionate temptation analysis. Crimes

that are most subject to entrapment techniques largely occur in public and in

poor neighbourhoods while race increases the odds that you will be tempted by

the police because of over-policing.

59 Ibid. at paras. 34, 46-47. 60 Unlawful behaviour is systemic in our society from theft, fraud, tax evasion, assault, impaired driving, traffic offences, drug possession. See Thomas Gabor, Everybody Does It: Crime by the Public (Toronto: UofT Press, 1994).



Where the state engages in that exploitation in the absence of good reason

(e.g. reasonable suspicion that the person is already engaged in criminal

behaviour) and with unfair tactics, it cannot be said that the individual is

autonomous, capable of making an informed or real choice to commit the

offence. As Professor Hughes has noted:

… if a person is tempted to commit a crime, he is not fully criminally liable since he did not freely choose to do so. In cases of strong but resistible temptations the agent was more or less volitionally indecisive, and her autonomy was therefore more or less compromised with respect to her consequent actions. In cases of irresistible temptation, the agent was compelled to act as he did. It would therefore be unjust to hold people fully criminally responsible for illegal actions resulting from volitionally impairing temptations. Hence, such temptations ought to be legally exculpatory.61

This then begs the question of what we do with this new constitutional

standard in the entrapment context. At a minimum, it should lead to a more

sensitive and contextually based application of the inducement prong of the

Mack test. Factors such as race, culture and class which impact on vulnerability

and exploitation should now be given more weight in assessing how a reasonable

person would have responded to the police overtures.

The other option is to create a parallel substantive entrapment defence. In

other words, there would be two entrapment defences. The Mack procedural

defence and a section 7 moral involuntariness defence. In thinking about this

question, it is necessary to weigh the costs and benefits. The benefits include the

shifting back of the onus to the Crown to prove no inducement beyond a

reasonable doubt and a verdict of acquittal rather than stay. The costs include

lengthier trials, confusion and possible duplication with the trial judge deciding

the procedural defence and the trier of fact determining the substantive defence.

Since we treat a judicial stay of proceeding as the equivalent to an acquittal, is

there much gained by having a new defence for purposes of remedy? If the

answer is yes, remedy does matter, we could alternatively use section 7 and moral

61 “Temptation and Culpability in the Law of Duress and Entrapment” (2005-2006), 51 Crim. L.Q. 342 at 344.



involuntariness to require an acquittal rather than stay in all entrapment cases

instead of recognizing a new defence. Finally, with respect to the burden of proof,

placing a burden on the accused for defences and Charter applications is

common-place today and there is no evidence that it is having a negative effect.62

It is not clear that this reason alone would warrant creating a new defence given

the attendant costs. These questions will have to be worked out as we think about

the implications of this new section 7 standard in entrapment cases.

NOVEL ARGUMENTS

Offences Incited by the Police (e.g. Cause Disturbance)

Entrapment extends to the police incitement or instigating of criminal

offences. The incitement can presumably be intentional or unintentional. There

are a number of offences in the Criminal Code that are often relied on by police to

charge individuals who react to or resist unwelcomed police interference. These

offences include cause disturbance, mischief, assault police or resist arrest. The

case of R. v. Osbourne63 provides a good illustration of this point.

Officers from Toronto’s Anti-Violence Intervention Strategy (TAVIS) unit

saw Osbourne standing on the street with another individual. Both men are

Black. They 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 followed. Osbourne continued to yell and

swear. Both men were now saying “you guys are always harassing us.” At this

point, one of the officers wanted to know the identities of the individuals. In her

view, they had committed a criminal offence (for shouting) and had jaywalked!

The incident escalated to a detention situation as the officer demanded that the

men put their hands to their side and identify themselves. Two other officers

62 Interestingly enough, in Mack, the trial judge concluded that there was no entrapment. He did observe, however, that he would have come to a different conclusion had the burden been on the Crown. Notwithstanding the burden, the Supreme Court reversed the trial judge’s decision and held that Mack was entrapped and stayed his charge. 63 [2008] O.J. No. 1135 (C.J.).



arrived. Osbourne began waving his arms in the air and made contact with one of

the officers. He was charged with cause disturbance and assault.

Justice Brewer, in a carefully reasoned judgment, acquitted Osbourne of

both offences. In her view, his actions were attributed solely to the conduct of the

officers:

In this case, when the officers drove up to the defendant, he was under no obligation to speak with them. It is unfortunate that Mr. Osbourne chose to express that unwillingness to communicate with the police in such a gratuitously confrontational and obnoxious manner. Nonetheless, he was within his rights in asking to be left alone, no matter how rudely he expressed it. … Constable Grant was operating under the erroneous belief that the defendant was committing the offence of causing a disturbance from the time of his initial outburst … However, the law is clear that yelling and swearing in a public place is not in itself a criminal offence. … I accept that by the time of Mr. Osbourne’s arrest a crowd of between 10 and 15 people had gathered outside of the strip plaza. Some of these people were voicing anti-police sentiments. … I find that people did not begin to come out of the plaza and do more than briefly observe the situation until after the defendant had been unlawfully detained and cautioned for causing a disturbance when there was no disruption of the public peace. But for the actions of the police in disregarding his rights, Mr. Osbourne would not have been yelling and swearing. I find that any disturbance of the public was attributable to the conduct of the police.64

While it is true that some incitement cases may be defended on the basis of

no proof of the elements or on the basis of section 9 and racial profiling,

entrapment offers a viable alternative particularly where there is no question that

the substantive elements are made out. Indeed, it is arguable that Justice Brewer

was applying an entrapment-like analysis. Since racialized individuals like Mr.

Osbourne are more likely to encounter the police on the street because of the

over-policing of racialized neighbourhoods and racial profiling, they are more

vulnerable to voice their right to be left alone. The law should be cognizant of this

social reality and the procedural defence of entrapment offers the courts a

jurisdictional basis to provide a remedy.

64 Ibid. at paras. 17-22 (emphasis added). Justice Brewer acquitted Osbourne of assault on the basis that his actions were a reflex and not intentional.



Mr. Big Strategy

While the procedural defence of entrapment focuses on remedying cases

where the police have gone too far in providing an individual with the

opportunity to commit an offence, there is no reason why it cannot apply to

monitor other police stratagems. Enter Mr. Big. The Mr. Big strategy involves

getting the target to confess to a serious crime, usually murder, to an undercover

officer posing as a crime boss in order to gain ascendance in the organization. It

is a good point of departure to think about an extension of entrapment since it

often involves the police committing (or encouraging or staging the commission

of) offences with the target in an effort to gain his or her trust. To date, there has

been little judicial control over the Mr. Big strategy. Our courts have held that the

voluntary confessions rule does not apply because the target does not know that

they are speaking to the police; and, the constitutional right to silence does not

apply because the target is not detained.65

The lack of judicial supervision is troubling given the number of reported

cases involving the Mr. Big strategy or some variation of it;66 and, the link to

65 See R. v. Bonisteel (2008) 236 C.C.C. (3d) 170, (B.C.C.A.) [hereinafter Bonisteel]; and, R. v. Osmar (2007), 217 C.C.C. (3d) 174 (Ont. C.A.) [hereinafter Osmar]. 66 McIntyre, “Mr. Big hears the secrets – But sometimes, the confession won’t stand up” Winnipeg Free Press (31 October 2009). According to McIntyre, there have been more than 100 Mr. Big cases in Canada since the early 1990s. As for reported cases, in addition to Bonisteel and Osmar, supra note 65, see: R. v. Lowe, [2009] B.C.J. No. 1470 (C.A.); R. v. Boudreau, [2009] N.S.J. No. 67 (S.C.); R. v. Porsch, [2008] B.C.J. No. 2553 (C.A.); R. v. Fiorino (2008), 233 C.C.C. (3d) 293 (Ont. C.A.); R. v. Hathway, [2008] S.J. No. 745 (Q.B.); R. v. Mack, [2007] A.J. No. 1551 (Q.B.); R. v. M.(T.C.), [2007] B.C.J. No. 2705 (S.C.); R. v. Giroux (2007), 228 C.C.C. (3d) 164 (B.C.C.A.); R. v. Wilson, [2007] B.C.J. No. 2892 (S.C.); R. v. Roop, [2007] B.C.J. No. 3019 (S.C.); R. v. Therrien, [2006] B.C.J. No. 3156 (S.C.); R. v. Proulx (2005), 29 C.R. (6th) 136 (B.C.S.C.); R. v. Valliere, [2004] B.C.J. No. 2882 (S.C.); R. v. Ethier, [2004] B.C.J. No. 775 (S.C.); R. v. C.(R.K.) (2004), 184 C.C.C. (3d) 269 (B.C.C.A.); R. v. Holtam (2004), 165 C.C.C. (3d) 502 (B.C.C.A.); R. v. Bicknell, [2003] B.C.J. No. 2312 (S.C.); R. v. B.(B.P.), [2003] B.C.J. No. 3150 (P.C.); R. v. Mentuck, [2001] 3 S.C.R. 442; R. v. F.(G.W.), [2000] B.C.J. No. 1062 (S.C.); R. v. Ferber, [2000] A.J. No. 1405 (P.C.); R. v. Simmonds, [2000] B.C.J. No. 1309 (S.C.); R. v. Redd, [1999] B.C.J. No. 1471 (S.C.); and, R. v. Caster, [1998] B.C.J. No. 3178 (S.C.).



wrongful convictions.67 Indeed, last month, Kyle Unger’s wrongful conviction for

first degree murder was recognized in a Manitoba court.68 Unger was Manitoba’s

first Mr. Big victim and spent fourteen (14) years in prison.69 Entrapment permits

courts to exclude the confession evidence under section 24(2) of the Charter in

cases where the police conduct has induced the confession. In R. v. Imoro,70

evidence was excluded under section 24(2) following a finding of entrapment.

There is no reason why a similar approach could not apply in this context.71 What

needs to be developed are the relevant factors in assessing when the Mr. Big

strategy constitutes an abuse of process. Perhaps the most significant factor

would be whether the police are committing offences or assisting the target to

commit offences in an effort to gain his trust. Other relevant factors might

include whether a specific vulnerability was exploited or whether threats and

violence were directed at the target.72

67 See Moore, “The trouble with ‘Mr. Big’” Ottawa Citizen (2 November 2009); and, Mulgrew, “Study cases further doubt on ‘Mr. Big’ technique” Vancouver Sun (7 October 2009). The latter story refers to a study by Kouri Keenan, a criminology student at Simon Fraser University. 68 See Lampert, “ Kyle Unger acquitted in murder for which he spent 14 years in prison” Winnipeg Free Press (23 October, 2009). 69 See Unger v. Canada (Minister of Justice), [2005] M.J. No. 396 (Q.B.). Additional false confession cases include Jason Dix -- Dix v. Canada (A.G.), [2002] A.J. No. 784 (Q.B.); and, George Mentuck – R. v. Mentuck, [2000] M.J. No. 447 (Q.B.). 70 (2008), 59 C.R. (6th) 109 (Ont. S.C.J.). As Professor Quigley notes in his “Annotation” (pages 110-111), “[t]his decision forges new ground in the selection of a remedy for entrapment. …[T]here would seem to be no reason in principle why exclusion of evidence should not be considered in such cases …” 71 But see the comments in R. v. Joseph, [2000] B.C.J. No. 2800 (S.C.) at para. 66 where the court observed that “[t]here is, in my view, a substantial difference from conduct of the police designed to encourage a potential accused to commit an offence for which he may be prosecuted, and conduct designed to create an atmosphere in which police or their agents gain the trust and confidence of those they suspect of criminal activity and for the purpose of acquiring evidence of past criminal conduct.” However, in Osmar, supra note 65 at para. 48, Justice Rosenberg observed that “I should not be taken as holding that the manner in which the Mr. Big strategy is executed could never shock the conscience of the community and lead to exclusion on common law grounds.” This statement was endorsed by the British Columbia Court of Appeal in Bonisteel, supra note 65 at para. 93. 72 Justice Rosenberg in Osmar, supra note 65 at para. 36 appears to recognize that this might be a relevant consideration when he noted that “this example of the Mr. Big strategy does not contain the elements of a real possibility of an unreliable confession because of abuse of power by a person in authority. There was no abuse of power.”



CONCLUSION

In this paper, I have attempted to summarize the Canadian law on

entrapment. In addition to somewhat dispelling the myth that entrapment

findings are rare, I have tried to demonstrate that post-Mack Charter cases have

breathed new life into entrapment and cases like Clayton; Kang-Brown; and,

Ruzic require us to re-think its parameters. In particular, these cases raise the

strong possibility that the Court will now engage in a more vigorous balancing as

part of the bona fide analysis to protect against discriminatory policing and

recognize the vulnerabilities of particular communities when assessing the

inducement prong of Mack. Finally, this piece has attempted to get criminal

lawyers to think more broadly about entrapment and to try and apply it in other

contexts such as cases where the police have incited the accused to commit

offences like cause disturbance or assault police and confession cases involving

the Mr. Big strategy.

Documents

CREATING A BIG MACK ENTRAPMENT AND THE CHARTERweb4.uwindsor.ca/.../0/...EntrapmentandtheCharter.pdf · CREATING A BIG MACK: ENTRAPMENT AND THE CHARTER By Professor David M. Tanovich