Entrapment by phone, posse comitatus and the US Army, Canadian mayors and riots, and inoperable cell phone convictions


Can you be entrapped by phone? The Supreme Court of Canada has confirmed that you can.

One of the ways that entrapment can occur is if the police engage in random virtue testing: presenting an opportunity to commit a crime without a reasonable suspicion that the person being tested is already committing the crime, or that the crime is already occurring in the place where the police are testing random people.

An example of a place where police have a reasonable suspicion that crimes are being committed might be an area where illegal drugs are being sold frequently.

The Supreme Court of Canada concluded that a phone number, believed to be associated with illegal drug sales, could also constitute a place, like a street corner.

While a tip on unknown reliability that a phone number is being used to sell drugs would not be enough to constitute reasonable suspicion, the language used when the phone is answered could provide the reasonable suspicion necessary to ask and see if the person answering the phone is willing to sell drugs.

Also discussed is the US Posse Comitatus Act (1878), which is relevant to President Trump’s threat to use the US military to stop riots and looting which have accompanied peaceful protests over a police officer killing a black man by kneeling on his neck after he was handcuffed and laying on the ground.

A Posse Comitatus, at common law, is a group of citizens mobilized by a sheriff to suppress lawlessness, defend the country, or apprehend someone who has committed a serious crime.

The US Posse Comitatus Act restricted the use of the military to enforce domestic laws. Since it was passed, however, various amendments have been passed that permit exceptions to this limitation.

In Canada, while we do not have a history of using the posse, we do have section 67 of the Criminal Code which required a justice, mayor, sheriff, deputy mayor, or deputy sheriff to, upon being informed of a riot of 12 or more people, to attend as close as is safe and, in a loud voice, read, or cause to be read, the following:

“Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.”

Once this has been read, if people don’t disperse, they commit and offence and are liable to imprisonment for life.

Finally, a Court of Appeal decision is discussed which concludes that you can be convicted for holding an electronic device while driving, even if the device is completely inoperable, or equipped with software that deactivates it in a car.

The decision makes clear that the legislation in question needs to be amended so as to avoid punishing people who are not engaged in an activity that is dangerous.


Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.


An automated transcript of the episode:


Legally Speaking June 4, 2020

Adam Stirling [00:00:00] It’s time for, Legally Speaking, on CFAX 1070 into the second half of our second hour. Michael, good morning. How are you?

Michael T. Mulligan [00:00:05] Good morning. Great to be here. Doing well. Thank you.

Adam Stirling [00:00:07] Always very interesting to see the latest affairs in the world of court rulings and legal decisions that are continuing despite the substantial concerns that we have with Covid-19. Let’s get started, entrapment. Well, what is entrapment? What does that mean?

Michael T. Mulligan [00:00:22] Yes, indeed. So, what we have had in Canada for a number of years now, defined by a case called Mack, case from back in 1998. A definition from the Supreme Court of Canada about what amounts to entrapment. And in Canada, if somebody is entrapped into committing an offence, even if they committed the actual act, they would not be convicted of the offence. And since 1988, it’s been clear that there are two different ways in which a person could become entrapped. The first way in which entrapment can occur is if the police engage in what’s sometimes called random virtue testing. And the idea there would be that if the police present an opportunity to commit a crime when they don’t already have a reasonable suspicion that either the individual person, they’re targeting or the area in which they’re targeting, is a place where crimes have been occurring or a person engaged in a particular type of crime. So, an example of that would be, let’s see, the police decided to just go down on to Fort Street and put a wallet of with the money sticking out of it on the sidewalk. Leave it there and surveil it until somebody picks it up and walks off with a wallet or cash and then runs over and arrest them. Right. The idea would be, look, you didn’t have any reason to think that people were engaging in that kind of crime there. You’re just testing everyone’s virtue, and that’s not permitted.

Adam Stirling [00:02:00] Interesting.

Michael T. Mulligan [00:02:01] So the other way in which entrapment can occur is that if you have that reasonable suspicion. Right. But you go beyond providing an opportunity for somebody to commit an offence and sort of overcome somebody’s reasonable resistance to commit it. So if you went to somebody and said, you know, would you sell me some marijuana, please, Or I guess, that might now be legal in some circumstance, could you send me some cocaine, please? No, no. I want nothing to do with it, I’m a law-abiding citizen. And you plead with them how somebody is going to die, and your mother is addicted, and you know, she’s on the verge of death if you don’t comply. Right.

Adam Stirling [00:02:39] Yes.

Michael T. Mulligan [00:02:39] You virtually overcome the resistance and eventually to bring those. Okay, fine. Right. I don’t want to see anyone die. Here you are. And then you say, aha, I’m an undercover police officer, you’re under arrest. That would also be entrapment.

Adam Stirling [00:02:51] Interesting.

Michael T. Mulligan [00:02:51] And so there’s been a live issue for a number of years now surrounding. What about when police are investigating dial a dope operation? And the way that would play out often is this: the police would get some information saying, you know, somebody is running a dial a dope operation, some nickname, you know, Teddy is operating a dial a dope operation. This is the phone number, right?

Adam Stirling [00:03:14] Yes.

Michael T. Mulligan [00:03:15] And that information might come in by a tip line or some, you know, person trying to give information to police to be released or by whatever means. And then the police would call the number and try to buy drugs. And so, the issue that arose, is that entrapment? Because the issue would be, look, did you have a reasonable suspicion that somebody was selling drugs? Well, on what basis?

Adam Stirling [00:03:39] Hmm.

Michael T. Mulligan [00:03:40] And so that’s the issue that the Supreme Court of Canada answered just this week. And the conclusion the Supreme Court of Canada came to is that a phone number can be treated in roughly the same way as a place could be treated. And the idea there is, let’s say the police had a reasonable suspicion that people were dealing drugs in a particular street corner.

Adam Stirling [00:04:04] All right.

Michael T. Mulligan [00:04:05] Look, you know, we see all these people down here with hand to hand transactions. We have a reasonable suspicion that’s going on in that place. And some person, unknown to them, seems to be going up to people and engaging in some kind of hand to hand.

[00:04:17] Transaction there. You might approach them and see if they would sell you drugs. Right now, you might not have a reasonable suspicion that person is.

Adam Stirling [00:04:25] Is that a crime? Please forgive my ignorance. Is asking to buy drugs a crime?

Michael T. Mulligan [00:04:30] Yes. That could be a crime.

Adam Stirling [00:04:32] All right.

Michael T. Mulligan [00:04:32] This is another important thing the Supreme Court of Canada points out of this case. Simply agreeing to sell somebody drugs is trafficking, offering to can amount to an offence.

Adam Stirling [00:04:41] Wow.

Michael T. Mulligan [00:04:41] So you actually complete the offence of drug trafficking on the phone and you can do so even if you don’t have any drugs.

Adam Stirling [00:04:48] Wow. So, you can lie, but still be a drug trafficker for agreeing to traffic a substance you know you have no possession of.

Michael T. Mulligan [00:04:54] Quite correct.

Adam Stirling [00:04:55] Wow.

Michael T. Mulligan [00:04:55] Right. So, somebody can say this is a bag of cocaine. Would you like to purchase it from me? Sure. Here’s the money and you hand over some talcum powder. You can be guilty of trafficking.

Adam Stirling [00:05:04] Wow.

Michael T. Mulligan [00:05:06] So that was one of the things the Supreme Court of Canada struggled with. You know, how do you deal with these sorts of virtual places, both phone number, and what about other things like an online forum? One if police go to some forum and say, well, anyone here sell me drugs not permitted.

Adam Stirling [00:05:22] Right. Yeah.

Michael T. Mulligan [00:05:23] And so the way they dealt with it; the majority dealt with it. They said, look, a phone number can be a place kind of like the street corner where you have a suspicion that people are dealing drugs even if you don’t know that, that, person is dealing drugs. So, it can be viewed as a place, but a bare tip, they point out, would not amount to reasonable suspicion. So, let’s say you had some Crime stoppers tip saying, you know, somebody named Adam at this number is offering to sell drugs to people. Just call up and, right. You should buy some.

Adam Stirling [00:05:55] Yes.

Michael T. Mulligan [00:05:56] Without more, that wouldn’t be enough because you don’t know who is giving you that tip. Why are they doing it? Maybe they’re out for revenge? Maybe it’s your angry ex roommate, who knows?

Adam Stirling [00:06:03] mmhmm.

Michael T. Mulligan [00:06:03] More is required. But they’ve said that in some cases that, more that would be required and apart from a bare tip of unknown reliability, that that phone number is associated with drug sales, can in some cases be formed during the course of the conversation on the phone and the police call it. And so, this case involved a couple of different individuals and one of them, when the police called up, they use this kind of language. They said, you can help me out and the person responded saying, what do you need? And the Supreme Court of Canada concluded that that was particular language used by the drug subculture. “You can help me out?”. “And what do you need?”.

Adam Stirling [00:06:45] Really?

Michael T. Mulligan [00:06:45] And those comments amounted to enough to turn that into a reasonable suspicion that the person on the phone was engaged in selling drugs. That’s an interesting thing. Now the other individual, that they dealt with another case, when the police called a number, they had this tip for, and they called it up. The person did not respond in any positive way to what they referred to as slang particular to the drug subculture until after the person had agreed to sell the drugs. And so, in that case, they said, look, they didn’t have the reasonable suspicion necessary to carry on. Now, I would say, listeners may be, and I certainly scratch my head a little bit, at whether the, “can you help me out?” “And what do you need?”, amounted to sort of sufficient particular language particular to the drug culture.

Adam Stirling [00:07:33] Yeah.

Michael T. Mulligan [00:07:33] I’m not sure, but that’s what the Supreme Court of Canada found. And so, the takeaway here is that you can be entrapped if the police are to call up and don’t have that reasonable suspicion before they try to get somebody to sell drugs on the phone. But you can pretty quickly move from a bare suspicion that wouldn’t be reasonable to what would be enough based on even things like, you know, what kind of language is used when there’s this discussion on the phone. So, there it is. It’s a little bit of, a little bit of clarity perhaps, and confirmation that that broad definition of what entrapment can be, is still well and good. And they said, look, that stood the test of time as a principle, stable, generally applicable threshold. Those two ways you can commit entrapment. And so they tried to provide some clarification here, dealing with phone numbers, and they also suggested use some language, you’re talking about these sort of extra caution that might be necessary if you were using some other kind of remote yield, I think they were envisioning, like an online forum or something, right, a chat room or something of that sort. So, we are dragging the concept of entrapment into the year 2020. And that’s what’s required. You need to have a reasonable suspicion before you try to buy drugs from somebody or else the church may wind up getting state as being an exercise in entrapment.

Adam Stirling [00:09:00] And we need to be careful to avoid those terms of art so widely understood to have a precise meaning in the drug trade that they may constitute the basis of a reasonable suspicion.

Michael T. Mulligan [00:09:09] Quite, quite right. Some of those fancy terms like can you help me out?

Adam Stirling [00:09:14] Always learning new things here on CFAX 1070 to legally speak. I always enjoy it. We’ll take a quick break. Michael Mulligan if you want to stand by. Coming up next. And most Latin phrases, I’m admitting my ignorance here. I learnt by reading them, so I don’t know how to pronounce all of them. Posse Comitatus. Did I get that one right? We’ll find out after the break.


Adam Stirling [00:09:32] You know, I can always betray my ignorance accidentally from time to time because many complex terms, especially Latin ones, I learned by reading them, which means I never heard them spoken aloud. I merely read the writings of someone else. I’m going to take a stab at this one, Michael Mulligan. You tell me if I’ve got a right Posse Comitatus. What is that?

Michael T. Mulligan [00:09:48] Yes. Well, this is an interesting historical concept that has gotten some recent life out of Donald Trump threatening to send the U.S. military to deal with the rioting that some people were engaged in apart from the peaceful protests that we’re going on recently and continue in the United States. And that, that concept, first part of it is Posse was, is this that concept was the capacity of sort of sheriff for justice official to require the entire population over the age of 15 to be summoned to assist in keeping the peace and arresting felons. And that actually has a history that goes back to the United Kingdom and it continues to be alive in the United States. In the United Kingdom in 1887, that common law concept was actually codified in the Sheriff’s Act, which permitted the sheriff to command the adult male population to come and form a posse to help, come and arrest somebody or put down a riot.

Adam Stirling [00:11:03] Now, imagine that state of affairs, Michael. The call goes out. All of us sort of show up at the town square wielding whatever weapons are at hand to go hunt down a criminal or a wrongdoer.

Michael T. Mulligan [00:11:13] The human cry come out and help, and that still goes on in the United States, up until relatively recently.

Adam Stirling [00:11:20] Wow.

Michael T. Mulligan [00:11:20] Many states have modern acts that permit that? For example, in 1977 in Aspen, Colorado, the sheriff called out for a posse of ordinary citizens, with their own weapons, to come and hunt for Ted Bundy.

Adam Stirling [00:11:36] Wow.

Michael T. Mulligan [00:11:36] And so formed a posse. You know if they went.

Adam Stirling [00:11:39] Wow.

Michael T. Mulligan [00:11:40] And modern states in the United States, many of them have current acts that permit exactly that. Now, what is this posse? I think it’s comitatus.

Adam Stirling [00:11:51] Comitatus, okay.

Michael T. Mulligan [00:11:53] What is that act and why is that being talked about recently? Well, the United States, with that broad history and being able to call up anyone to come and enforce the law, put down riots and arrest people. One of the issues in issue arose back in 1877, and it was after the civil war in the United States and federal troops were in southern states and enforcing laws surrounding voting. And there was a disputed U.S. presidential election, and it eventually produced a compromise that involved the passage of the Posse Comitatus Act. And the Act prohibited the use of federal troops from being used for those kinds of domestic purposes. The southern states didn’t want federal troops down there involving themselves in how they were conducting elections. And so, it was to prohibit, from that broad concept of, hey, we can call out the entire population to go in to enforce somebody, he’ll track down Ted Bundy or something, from excluding U.S. military. Right. So that was the purpose of the act. And that’s why that act, which continues, has been discussed in the context of can Donald Trump use the military to put down looting, for example? Now…

Adam Stirling [00:13:24] Interesting

Michael T. Mulligan [00:13:25] Fortunately for Mr. Trump, unfortunately, maybe for everyone else, that act has been rather watered down in the United States and there’s been another act called the Insurrection Act, which would permit, in some circumstances the use of federal troops to go and do things like put down riots. And so there may now, as a result of the watering down of that act, be some authority to do that. Whether it’s a terrible idea or not, is another matter. But it’s not as clear as it might have been following that compromise in 1877. Now, all of this background might cause you to wonder, what about here?

Adam Stirling [00:14:02] Yeah, what about here?

Michael T. Mulligan [00:14:03] Can you, can you be walking down the road and find yourself in a posse?

Adam Stirling [00:14:07] I’m not a posse guy, I just, I’m not, can somebody else do it.

Michael T. Mulligan [00:14:12] Well, you might be able to escape being forced to go out and help put down a riot, but the current Criminal Code of Canada actually have provisions in the form of Section 67 and 68 that can compel a number of individuals to go and assist in putting down a riot. Those individuals include the mayor, the deputy mayor, a sheriff, a justice, a warden or deputy warden of a prison, any of those individuals, if they receive notice that at any place within the jurisdiction of the person, twelve or more persons are unlawfully and riotously assembled, the individuals required, so the mayor shall go to the place, and after approaching as near as a safe, if the person is satisfied that a riot is in progress, they show command silence and they’re upon make or caused to be made in a loud voice a proclamation in the following words, or to like effect; here’s what the mayor would be required to read out to everyone. “Her Majesty, the Queen, charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful businesses on pain of being guilty of an offence for which on conviction they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.” God Save the Queen, by the way, is in all caps in the criminal code. And so, they read this country to think that perhaps this would be one of the good arguments for the 13 municipalities we’ve got around the region. And, of course, who’s going to provide it with 26 mayors and deputy mayors who could be, upon receiving notice of any sort of riotous assembly of 12 or more people, might be required to come out under the criminal code, you know, read the proclamation ending with God Save the Queen. Now, I should warn everyone that you should do nothing to impede the mayor or a deputy mayor or sheriff or anyone else who’s doing this, yet lest you do anything that would impede, hinder or oppose anyone who is making, about to make, such a proclamation, you can be subject to imprisonment for life. And that after the mayor or deputy mayor or any of those people read out the proclamation, they required to read. If you do not peaceably disperse within 30 minutes, you may be subject to imprisonment for life. And so while we don’t have a posse concept in Canada, we do have these provisions that might cause, ah, you know, 13 mayors or deputy mayors or various wardens, justices and so forth to have to come out and insists and assist in dispersing a riotous activity of twelve or more people.

Adam Stirling [00:16:55] Now, you mention that the justice, mayor, or sheriff shall attend the location where riotous activity is happening. In whom does the law vest the authority to determine what is and is not riotous activity.

Michael T. Mulligan [00:17:07] In that individual?

Adam Stirling [00:17:09] OK.

Michael T. Mulligan [00:17:09] The mayor, sheriff, deputy mayor is required to attend, if you didn’t do it. You’d be committing an offence. You must do it upon receiving notice. If you’re a mayor or any of these other people and you’re required to approach as near as a safe, you then must determine whether you’re satisfied that there is a riot in progress. And if so, command silence and then make that declaration in a loud voice. And then people better take off lest they be arrested and charged with a breach of Section 68.

Adam Stirling [00:17:38] It would seem that reviewing such a decision would be somewhat cumbersome given the timely nature of the requirement to tell the people to leave.

Michael T. Mulligan [00:17:46] Well, I think the likely cell phone video of the mayor reading off the proclamation ending with God Save the Queen might make for a more easy assessment of that, now, that’s impossible in the past.

Adam Stirling [00:17:58] Speaking of cell phones, we’ve got four minutes left. The Court of Appeal has found that one can be convicted of using an electronic device even if it has special software that is meant to disable it in the car. What’s the story on this one?

Michael T. Mulligan [00:18:11] Yeah, this was a Victoria case, actually, and it was a person who was driving in, spotted with a cell phone, holding it up against the steering wheel. And he was charged with using an electronic device. Went to trial and the, the justice was satisfied that the device had software on it that prevented it from being used. Special software to make it safe in the car. So, if you’re in a car, it wouldn’t operate in any way. And in fact, I recall that judgement. The police officer actually went out with the individual drove round and confirmed. Yes, indeed, the phone doesn’t work.

Adam Stirling [00:18:43] Yes.

Michael T. Mulligan [00:18:43] It can’t be used, and so the justice acquitted the man on the basis that, well, this just wasn’t held in a position that it could be used. You can’t use it in any position. He’s got the software on it. And there was some reference to that software. And ICBC is website and indeed seems like a good idea to encourage people to have that.

Adam Stirling [00:19:01] Yes,

Michael T. Mulligan [00:19:02] Well, the crown appealed. It went off on a summary conviction appeal. And the judge there found that on a quick, slightly different take that it wasn’t an electronic device within the meaning of the act because it couldn’t be. So, a slightly different way of getting to the same result. The man should still be acquitted. Very sadly for the man, it went to the Court of Appeal. The province just didn’t give up. And the Court of Appeal interpreted those sections saying, no, no. Even if the device cannot be used because it’s got that safety software on us, you can still be convicted. And, you know, perhaps what this is, is that, you know, by the time a case gets to the court of appeal, the actual facts and the individual are a little more remote. Right. And you end up sort of interpreting, you know, what is the language of this statute and what does use mean and what is an electronic device mean?

Adam Stirling [00:19:51] Yes.

Michael T. Mulligan [00:19:51] And so it came to this sort of statutory interpretation that no, no, all this can be included based on the wording of this act. The man can be convicted. Now, I should say this, what this case really points out, and we’ve talked about this before, is that this legislation needs to be updated. It needs to be updated because it is so broad that it captures people who don’t pose any danger. Right.

Adam Stirling [00:20:17] Yes.

Michael T. Mulligan [00:20:18] The first is a device that cannot be used as the safety software on it. And there’s, you know, moving the inoperable device somewhere in their car does not pose a hazard. And if this legislation permits a conviction in those circumstances, and that’s what the Court of Appeal has found that it does. The legislature has to fix that. And that may not be the responsibility of the court, they’re just interpreting witness’s language mean in this act. But we shouldn’t be in our haste to ensure safety for people, having the effect of convicting people who may be morally innocent and don’t pose any hazard. And you want to encourage people to do things like, hey, put some software on it so the phone doesn’t ring, and messages, don’t come through and you can’t use the thing. Of course, we’d want to encourage that to be used. And if we convict people that are doing things like that, it is unnecessary. It is going to broadly undermine support for the justice system.

Adam Stirling [00:21:12] Yes.

Michael T. Mulligan [00:21:12] And we ought to get that fixed. And so, the responsibility for fixing that isn’t really with the Court of Appeal, the responsibility for fixing that is with the legislature. And they should get that fixed and quickly, because the implication of convictions of this kind can mean the person’s prohibited from driving.

Adam Stirling [00:21:30] Yes.

Michael T. Mulligan [00:21:30] And for some people, that means unemployment. And so, you shouldn’t be causing people who are morally innocent and not posing any hazard and doing things to ensure safety, being put in a position where they could lose their livelihood. That’s not fair, right, or reasonable. And the legislature ought to get on promptly with fixing that so we’re not convicting people that ought not to be convicted in a broad principle, moral sense. So, fix the legislation.

Adam Stirling [00:21:56] Agreed, Michael Mulligan, thank you for your time. Your knowledge or insight is always it is greatly appreciated all out of time, but until next week.

Michael T. Mulligan [00:22:02] Always a pleasure. Thank you so much.

Adam Stirling [00:22:04] All right. We’ll talk to you again soon. Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking.

Automatically Transcribed on June 4, 2020 – MULLIGAN DEFENCE LAWYERS