R v Barnes

R. v. Barnes

[1991] 1 S.C.R. 449
Supreme Court of Canada — Lamer C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ. | February 28, 1991

Background

Philip Barnes was walking near Vancouver's Granville Mall when an undercover police officer approached him during a 'buy-and-bust' operation. The officer later testified she picked Barnes based on 'a hunch' — he was 'dressed scruffy' with long hair, fitting her 'general criteria' for someone who might sell drugs. When she asked if he had any 'weed,' Barnes initially said no twice. After the officer persisted, Barnes eventually sold her a small amount of cannabis resin for $15.

Barnes was convicted of trafficking cannabis resin, possession for the purpose of trafficking, and possession of marijuana. However, the trial judge found the police had engaged in 'random virtue testing' and granted a stay for entrapment. The BC Court of Appeal overturned this, ordering a new trial instead of entering convictions.

Issues

1. Did the police officer engage in random virtue-testing that constituted entrapment?
2. Did the Supreme Court have jurisdiction to enter convictions without a Crown cross-appeal?

The Entrapment Test

The Supreme Court clarified the test from R. v. Mack: entrapment occurs when police provide an opportunity to commit an offence without reasonable suspicion that the person is already engaged in criminal activity or without conducting a bona fide inquiry. The Court found that while the officer had no reasonable suspicion about Barnes individually (his appearance wasn't enough), she was conducting a legitimate investigation in an area where drug trafficking was known to occur.

The Court emphasized that when police conduct a bona fide investigation in a location where criminal activity is reasonably suspected, they can present opportunities to any person in that area — even randomly. The Granville Mall was a legitimate target area with documented drug trafficking, making this permissible within a proper investigation rather than random virtue-testing.

Jurisdictional Issue

The Court ruled it had no jurisdiction to enter convictions because the Crown hadn't cross-appealed the Court of Appeal's order for a new trial. Under the Criminal Code's appeal provisions, when there's no Crown appeal, an accused cannot leave the Supreme Court with less than what they gained from the lower court. This preserved the new trial order despite finding no entrapment occurred.

Key Takeaway

Police can approach people randomly during undercover operations if they're investigating a specific area where crime is known to occur — your appearance alone doesn't need to create reasonable suspicion.

This case shows that entrapment defenses are difficult when police can point to legitimate area-based investigations, even if their target selection seems arbitrary or based on stereotypes.