Random test shopping is not entrapment

Mike Novakowski
May 09, 2011
By Mike Novakowski
Using an underage test shopper to buy cigarettes does not require a reasonable suspicion the clerk or store is selling to underage buyers, Ontario’s highest court has held. In R. v. Clothier, 2011 ONCA 27, a convenience store was randomly chosen for a spot compliance check from a master list of tobacco vendors. A tobacco enforcement officer went to the store with a 17-year-old test shopper, who bought a package of cigarettes from the 19 year-old clerk and left. At no time did Clothier, the accused, ask for age identification.

Using an underage test shopper to buy cigarettes does not require a reasonable suspicion the clerk or store is selling to underage buyers, Ontario’s highest court has held.

In R. v. Clothier, 2011 ONCA 27, a convenience store was randomly chosen for a spot compliance check from a master list of tobacco vendors. A tobacco enforcement officer went to the store with a 17-year-old test shopper, who bought a package of cigarettes from the 19 year-old clerk and left. At no time did Clothier, the accused, ask for age identification.

The enforcement officer entered and informed Clothier he had sold tobacco to an underage person and issued a certificate of offence under s. 3(1) of Ontario’s Smoke Free Ontario Act (SFOA), which prohibits selling tobacco to anyone under age 19.

At trial before a Justice of the Peace Clothier argued he was entrapped, claiming the charge should be stayed because the test shopping had been done without a reasonable suspicion that he, or the store, had previously sold tobacco to minors. The justice found there had been no entrapment and using test shoppers was an appropriate investigative technique for regulatory offences. Clothier was convicted and fined $50. His appeal to the Ontario Court of Justice was dismissed. The judge ruled the tobacco enforcement officer had conducted a bona fide inquiry and was entitled to do so without a reasonable suspicion.

Clothier appealed to the Ontario Court of Appeal, submitting the doctrine of entrapment applied to regulatory as well as criminal offences. The Crown contended entrapment did not apply.

h3. Entrapment

Entrapment is an aspect of the abuse of process doctrine and reflects judicial disapproval of unacceptable police or prosecutorial conduct in criminal investigations. The doctrine seeks to balance two competing objectives: (1) police must have considerable leeway in the techniques they use to investigate criminal activity but (2) their power to investigate should not be untrammeled.

“The police should not be allowed to randomly test the virtue of citizens by offering them an opportunity to commit a crime without reasonable suspicion that they are already engaged in criminal activity; or worse, to go further and use tactics designed to induce citizens to commit a criminal offence,” said Justice Laskin. “To allow these investigative techniques would offend our notions of decency and fair play.”

When entrapment is proven the essential elements of the offence have been made out but a court will stay the proceedings because fair play would be offended and the administration of justice would be brought into disrepute.

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