We have all heard or uttered the protest, “But isn’t that entrapment?!” Entrapment is unlawful state conduct. It requires the planning of an offence by an officer, and an “offender” who only commits a crime because of the inducement, trickery, or persuasion of the officer. In other words, someone is tricked or induced or pressured by an officer into committing a crime that he or she would not have otherwise committed.

Another component of entrapment is the lack of a reasonable suspicion that a person would commit the crime given an opportunity to do so. The police cannot target just anyone anywhere. Even conduct that does not amount to entrapment may feel inherently wrong and in conflict with the concepts of fairness and justice. In certain circumstances it may be less obvious whether police conduct results in entrapment.

Let’s put the definition into practice with some commonly used police tactics.

Bait cars

In this popular tactic, a vehicle with keys left in the ignition or valuable items on display, is rigged with surveillance equipment, and left in an area prone to car theft or break-ins. The bait car is monitored from a remote location and may have GPS tracking or features that disable the vehicle from driving or prevent the thief from fleeing the vehicle. Surrey has the highest rate of vehicle theft in Canada and the largest fleet of bait cars in North America.

Why do some people consider bait cars entrapment? Bait cars are “honey traps”; they are highly tempting and identify unknown car thieves because they are left in areas prone to such crimes. Why are bait cars not entrapment? There is no actual inducement or persuasion by an officer. The vehicle is merely there, and thieves identify themselves when they fall for it.

Undercover drug operations

In these scenarios, officers often dress in plain clothes and target people they suspect are involved in drug trafficking. These scenarios play out in wide variety of ways; some amount to entrapment, but many don’t. Let’s look at a few examples.

In one scenario, two officers posing as a couple were working undercover in a mall where they believed someone was trafficking cocaine. Eventually, a man approached one of the officers and asking if the officer had a cigarette, who responded that they did not smoke, but were looking for “rock” (slang for crack cocaine). In response, the man took the officers to someone to arrange a sale, and the man was arrested for trafficking. This scenario did not amount to entrapment because the man in the mall had approached the officers, was not persuaded or pressured, and had some prior history of participating in that type of activity.

In two other examples, police conduct entrapped the offenders. In the first case, the accused had only purchased drugs from an undercover officer after being repeatedly asked to do so by that officer. In a second case, the accused who was only known to the police as a drug user and not a drug trafficker, was put in a situation which induced the drug user to sell drugs. The Court found this was entrapment because the officers did not have a reasonable suspicion that the drug user had previously engaged in drug dealing behaviour, and was therefore tricked or pressured into committing the crime.

Check stops

Check stops are criticized because they occur without a reasonable suspicion that drivers have consumed alcohol. Once a driver is stopped at a check stop and given a breath test from an approved roadside screening device, the argument is that the collection of the person’s breath sample is an unlawful search and seizure, which violates Charter rights. Although a perfectly valid criticism, the courts have deemed check stops lawful, through an exception in the Charter of Rights and Freedoms. That is, keeping society safe from drunk drivers outweighs the violation of someone’s right not to be subject to unlawful search and seizure of their breath sample at a check stop. Are check stops entrapment? They are not entrapment because the person who drives over the legal blood alcohol limit and is caught doing so at a check stop has already committed the crime of drinking and driving. There is no inducement, pressure, or trickery involved by the officers.

Mr. Big undercover operations

These tactics target a suspect from whom the police are seeking to extract a confession for a crime they believe he or she has committed. There is a primary operator, an officer who pursues the target and helps him “join” a gang. The gang and all of its operations are fake, and everyone involved in the operation is an undercover officer. Mr. Big is the “boss”, and eventually interrogates the target about the crime, pressures the target to be “honest” about it, confess, and provide details. The assumed consequences of failing to follow through are usually devastating to the target, such as the threat of bodily harm or financial and social consequences. Mr. Big operations may seem like entrapment when they induce or pressure the target into confessing to a crime when the confession is likely not reliable. Confessions are not reliable when they conflict with or do not make sense compared to other details already discovered. In such cases, the Courts have excluded confessions because of the risk they are false confessions.

Is the police conduct described in the scenarios above, even when it does not amount to entrapment, fair? As the argument goes, if you fall for one of these tactics the chances are you would have committed the crime anyway, but against innocent victims. Should police be using them? It depends on how you feel about such tactics.

If the tactic used does not infringe a person’s rights and freedoms and at the same time protects society from crime, is that a good enough reason to justify it?

Sherry Baxter practices criminal and civil law on Vancouver Island, as well as provides legal research and litigation services. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.