The laws that prevent police entrapment exist ostensibly to prevent the innocent from being unjustly convicted and to protect the integrity of the justice system. They’re also unfair, unnecessary, and ultimately harmful.
Two acts constitute entrapment in Canada: the first, known as random virtue testing, is when the police create an opportunity for a person to commit a crime when they have no reason to suspect that person of criminal intent. They are, however, allowed to create opportunities for those they suspect or randomly target people in areas with a problem with a particular type of crime. The principle behind banning random virtue testing is that police are creating a crime and a criminal where none existed, because the person wouldn’t have encountered the temptation otherwise.
Yet this relies on a strange concept of guilt, ascribing criminality not on the basis of the willingness of a person to commit a crime, but on an accident of fate. It means that all of us are potential criminals, but only some of us are culpable. Police are allowed to entrap people in areas with specific crime problems, so someone might be offered the chance to buy drugs from an undercover agent if she lives in a poor, crime-ridden neighbourhood, but avoid criminality if she lives in a peaceful suburb. This disparity is unjust.
In the second form of entrapment, police go beyond creating an opportunity for suspects to commit a crime, and try to actively convince them to break the law. They can offer to sell those suspects drugs, for instance, but they can’t goad them into buying them.
Again, this makes a tenuous distinction between being very willing to commit a crime and being somewhat willing to. A person convinced or goaded into crime, whether by a police officer or by another criminal, is still a person who has made the choice to commit a crime – a person who, in the end, poses a threat to society.
Arguments against entrapment ignore its usefulness. Sting and decoy operations, which often end up along the blurry edges of entrapment, are known to reduce crime and have a strong deterrent effect. These types of operations are also the most effective tools against crimes like corruption, trafficking, and terrorism, which rely on human networks and are increasingly harder to police as criminals turn to cell phones and the internet for communication. Imagine a person suspected of being involved in terrorism. Is it really so unethical to test whether they can be convinced to build a bomb?
Finally, such methods allow police to catch criminals before they harm society. Consider methods like the ones used on the popular show To Catch a Predator. They allow a pedophile to be caught without a child being molested. One might argue that current methods are enough, but what, ultimately, is the difference between a person who solicits sex from a child and a person who says “yes” when offered? The first is a sting, the second is entrapment, and the law that sends the first to prison and lets the second free is a law that must be changed.
Natalya Slepneva is a U3 Cognitive Science student. Write her at natalya.slepneva@mail.mcgill.ca.