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whether the police appear to have exploited a particular vulnerability of
the accused, such as a mental handicap or a drug addiction;
the disproportionate involvement of the police, as compared with the
accused, and the disproportionate risk or harm faced by the accused, as
compared with the police in the commission of any illegal acts; and
the existence of any threats, implied or express, made to the accused by
the police officers.
The persistence of the police requests and the length of time needed to secure
X’s participation are elements pointing to the fact that the police went further
than merely providing X with an opportunity. Nevertheless, the most important
factor is that X was threatened by the undercover officer. Despite the reasonable suspicion that X was still involved in criminal conduct, threats are not permissible. Such behaviour constitutes entrapment.
* This case study is taken from the facts in R v. Mack, and the analysis of the question on the
findings of the Supreme Court of Canada in that case.52
1.2.4 Access to Bank Accounts and Other Confidential Information
During the course of any intelligence-gathering operation or investigation of
terrorism-related offences, it is highly likely that the investigators will wish
to access bank accounts or other databases storing information that would
usually be regarded as private and confidential. Terrorism suspects use these
in the same way as any citizen, and will try to take advantage of the protection of private life to conceal evidence of their unlawful conduct and to evade
detection or prosecution. When seeking to access these databases, investigators should keep in mind the right to private and family life, as explored
above. However, they should also have due regard for the legitimate needs
of banks and businesses to maintain the integrity of their own systems and
not to be seen as handing over information to the authorities without having
a legal duty to do so. Similarly, potential human rights implications should be
carefully considered when entering into an exchange of confidential information on the basis of bilateral agreements between states. 52
52
Supreme Court of Canada, R v. Mack, Case number 19747, 15/12/1988, <http://scc.lexum.
org/decisia-scc-csc/scc-csc/scc-csc/en/item/391/index.do>.
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