R v Mack

R. v. Mack

[1988] 2 S.C.R. 903
Supreme Court of Canada — Lamer J. | December 15, 1988

Background

Norman Lee Mack was a former drug addict who had given up narcotics and was trying to develop property near De Roche, British Columbia. In 1979, he met Momotiuk (a police informant) through a mutual friend in Montreal. Over six months, Momotiuk persistently tried to get Mack involved in drug trafficking, claiming he represented a large syndicate that needed suppliers.

Mack repeatedly refused these requests. The situation escalated when Momotiuk took Mack for a walk in the woods, produced a pistol, and made veiled threats saying "a person could get lost." When Mack continued to refuse, he was told to "get his act together." Eventually, after being shown $50,000 in cash and facing continued pressure, Mack obtained cocaine from a supplier (who agreed to help "get Doug off me") and was arrested during the delivery.

Issues

1. What constitutes entrapment under Canadian law?
2. Should entrapment be decided by a judge or jury?
3. What is the burden of proof for entrapment claims?

The Supreme Court's Definition of Entrapment

The Court established that entrapment occurs in two situations: (a) when authorities provide an opportunity to commit an offense without reasonable suspicion that the person is already engaged in criminal activity or without a bona fide inquiry, or (b) when authorities go beyond providing an opportunity and actually induce the commission of an offense.

Critically, the Court ruled that entrapment should be assessed objectively — not based on the accused's state of mind or predisposition, but on whether the police conduct would likely induce an average person to commit the crime. The Court rejected the American "subjective" approach that focuses on whether the accused was predisposed to commit the offense.

The Court outlined several factors to consider: the type of crime, whether an average person would be induced, the persistence of police attempts, the type of inducements used (threats, fraud, exploitation of vulnerabilities), the timing of police involvement, and whether the conduct undermines constitutional values.

Procedural Rules

The Supreme Court ruled that entrapment claims must be decided by the trial judge (not a jury) because they involve questions of law and policy about acceptable police conduct. The accused bears the burden of proving entrapment on a balance of probabilities. If entrapment is proven, the remedy is a stay of proceedings — not an acquittal — because the accused did commit the offense, but the state's conduct makes prosecution an abuse of process.

Key Takeaway

Police cannot use threats, persistent pressure over months, and psychological manipulation to induce someone to commit a crime, even if that person has a criminal history.

The Court found that Mack's case involved clear entrapment due to the threats, the six-month campaign of pressure, and the informant's escalating tactics when faced with repeated refusals. This landmark decision protects individuals from overzealous police tactics that go beyond legitimate law enforcement.