COURT KEEPS 'ENTRAPMENT' DEFENCE UNDER CONTROL

Rejoice! The Ontario Court of Appeal has produced a common-sense
ruling on entrapment and the use of undercover investigations by police.

We never thought we'd write the words common sense and Ontario Court
of Appeal (OCA) in the same sentence. On a whole host of subjects
from gay rights to dividing matrimonial property to free speech and
prisoners' rights, the OCA -- one of the nation's most aggressively
liberal courts -- has used the "judicial review" clause of the
Charter as a sledgehammer to demolish traditional universal rights
and read in new ones that favour special interest groups.

But in the case of Aliu Imoro, a drug dealer from Toronto, the court
has overturned his acquittal by a trial judge who sought to establish
a new, impossibly broad definition of entrapment, the legal doctrine
that holds police may not entice citizens into committing crimes,
then arrest them.

In February 2006, Toronto police received an anonymous tip that a man
was dealing drugs on the 12th floor of an apartment block in the
city's notorious Jane and Finch district. When an undercover officer
was sent to investigate, he exited the building's elevator on the
12th floor and was immediately approached by Imoro, who said, "Come
with me." The officer then asked, "You can hook me up?" To which
Imoro replied "Yeah man." He then led the officer and another
passenger of the elevator into his apartment, where he sold the other
man marijuana and the undercover policeman some cocaine, both from a
stash of prepackaged, single supplies.

The officer returned again the next day, bought more cocaine, then
obtained a search warrant under which various drugs were found in Imoro's home.

Despite all these facts, the trial judge ruled that the policeman's
question, "You can hook me up?" had provoked the defendant to sell
drugs -- in legal parlance it had provided the opportunity to commit
a criminal act that would not have existed without the policeman's
inquiry. The trial judge found that nothing in Imoro's behaviour
prior to that moment had demonstrated or implied he was selling
drugs. The spur for the crime was the officer's question.

While agreeing with the trial judge that police are not permitted "to
randomly test the virtue of citizens, or to offer citizens an
opportunity to commit a crime without reasonable suspicion that they
are already engaging in criminal activity," the OCA said in this
case, the lower-court judge had "mischaracterized" the policeman's
actions and failed "to properly distinguish between legitimately
investigating a tip and giving an opportunity to commit a crime."

Too true.

Police had been summoned to the apartment building by a report of
some selling drugs there, specifically on one floor. When the officer
arrived on that particular floor, the suspect approached him, not the
other way around. Then the suspect took the officer a few feet to his
apartment where he had ready supplies of drugs waiting.

Perhaps if Imoro had not had drugs ready to sell the instant the
officer and the other man entered his apartment, and the officer had
nonetheless encouraged Imoro to find some that he might sell him,
there would be a case for entrapment. But in this case, police had a
tip about a drug dealer that was immediately confirmed when their
officer arrived.

That constitutes reasonable suspicion under any but the most extreme
definitions.

Had the OCA permitted the trial verdict to stand, most undercover
police tactics might have been at risk from sharp defence lawyers
crying "entrapment" at every turn. In this case, the officer would
have had to ask something such as, "Excuse me, sir. Are you an
established purveyor of illegal narcotics, well known as such to
neighbours and residents of this area, who currently has surplus
supplies of these commodities and is engaged, at this moment, in
their vending?"

Thankfully, the appeals court judges set aside the trial court
decision, entered a verdict of guilty and sent Imoro back to the
trial division for sentencing.

We worry, too, about protecting the innocent from unreasonable police
actions, but then, so do most good police officers. But there is a
greater danger of overly aggressive judges erring on the side of
criminals' rights and so hamstringing the police that their already
tough job of catching the bad guys is rendered impossible.