R. v. Mack, [1988] 2 SCR 903

In R. v. Mack, the Supreme Court revisited the issue of entrapment, which had previously been considered by a divided court six years earlier in Amato v. The Queen.

The accused, Norman Lee Mack, testified that he had persistently refused the approaches of a police informant over the course of six months, and that he was only persuaded to sell him drugs because of the informant’s persistence, his use of threats, and the inducement of a large amount of money.

In considering the issue of entrapment in these circumstances, a unanimous court found that the Charter’s focus on protecting the administration of justice from disrepute was a relevant consideration in this case:

It is the belief that the administration of justice must be kept free from disrepute that compels recognition of the doctrine of entrapment. In the context of the Charter, this Court has stated that disrepute may arise from “judicial condonation of unacceptable conduct by the investigatory and prosecutional agencies”: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 281. The same principle applies with respect to the common law doctrine of abuse of process. Conduct which is unacceptable is, in essence, that which violates our notions of “fair play” and “decency” and which shows blatant disregard for the qualities of humanness which all of us share.

In the final analysis, the court determined that the presence of threatening conduct on the part of police went beyond merely providing the accused with an opportunity to commit an offence, and in fact instituted the offence in question.

Perhaps the most important and determinative factor in my opinion is the appellant’s testimony that the informer acted in a threatening manner when they went for a walk in the woods, and the further testimony that he was told to get his act together after he did not provide the supply of drugs he was asked for. I believe this conduct was unacceptable. If the police must go this far, they have gone beyond providing the appellant with an opportunity. I do not, therefore, place much significance on the fact that the appellant eventually committed the offence when shown the money. Obviously the appellant knew much earlier that he could make a profit by getting involved in the drug enterprise and he still refused. I have come to the conclusion that the average person in the position of the appellant might also have committed the offence, if only to finally satisfy this threatening informer and end all further contact. As a result I would, on the evidence, have to find that the police conduct in this case was unacceptable. Thus, the doctrine of entrapment applies to preclude the prosecution of the appellant. In my opinion, the appellant has met the burden of proof and the trial judge should have entered a stay of proceedings for abuse of process.

On this basis, Mr. Mack’s conviction was quashed and a judicial stay of proceedings entered.

Decided by the Supreme Court of Canada on December 15, 1988.
Click here for the full text of the decision.

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