They blend together. The undercover terrorism operation. The stash house sting. And the Mr. Big scenario. They all raise legal and sociological concerns fixed in the efficacy of law enforcement and the vast resources vested in playing out what, in theory, are crimes that would not come to fruition.

On July 29, 2016, Justice Catherine J. Bruce in the British Columbia Supreme Court released her reasons for judgment in R v Nuttall, 2016 BCSC 1404 entering a stay of proceedings for abuse of process resulting from the conduct of the police in an undercover terrorism operation. Two heroin addicts, John Nuttall and his common law spouse Amanda Korody, were convicted of terrorism offences arising from planting explosive devices made from pressure cookers. They then brought the application for a stay of proceedings based in the doctrine of entrapment. Here is one example of how Justice Bruce described them, at para. 688:

“The police conduct…involved blatant manipulation of the defendants to exploit their dependence [on the police] as well as their particular vulnerabilities. The defendants were people who lived on the fringe of society, they had no jobs and were entirely dependent upon social assistance. They had few friends and no support from family members…They were recovering heroin addicts who were dependent upon a daily supply of methadone that was delivered to their suite. Their primary activity was playing online video games at home and they rarely ventured outside of a four-block radius from their basement suite. Paintball appeared to be the only outside activity that brought them into contact with other people. The defendants also demonstrated that they were not very intelligent, gullible and quite naive and child-like. To say they were unsophisticated is generous.”

The ruling sparked international media and online commentary. In a post to TechDirt titled Judge Says Stash House Sting Operations Allow Prosecutors To Be Judge, Jury, And Executioner dated August 10, 2016, Tim Cushing wrote this about the common thread that runs through these skillfully manipulated sting tactics:

“The question the government doesn’t want to answer is whether we’re better off pursuing fake criminals or capturing the real ones. Law enforcement does both, but sting operations – both of the terrorist and drug variety – have been increasing over the years, turning officers and agents into actors and stage directors.

The FBI has been crafting ‘terrorists’ from a collection of outcasts, retirees, and the developmentally disabled for years. Canada’s law enforcement is just as willing to score on unguarded nets, traipsing happily over the line between ‘highly questionable’ and ‘actual entrapment’ in its own terrorist ‘investigations’.

The ATF and DEA have combined forces to drag weapons into drug dealing using elaborate sting operations to entice no small number of people to get prepped to rob a nonexistent stash house of imaginary drugs. This would be bad enough, as it often appears the ATF is willing to bust anyone that engages in speculation about stash house robberies. Adding insult to injury, the federal government recommends sentences based on the fake amount of fake drugs not actually found in the fake stash house suspects talked about robbing.” (See also: Trevor Aaronson. Court Throws Out Terrorism Conviction In Canada, Citing Police Entrapment. The Intercept. August 3, 2016)

And that brings me to the point here. The doctrine of entrapment is not only a substantive defence. In the United States, as a result of the limited scope of remedies available under the Federal Sentencing Guidelines (1987), the courts have considered questions of sentencing fairness on constitutional grounds. Related questions have also arisen in Canadian jurisprudence in the context of mandatory minimum sentences. The doctrine of sentencing entrapment has emerged when an agent of the state induces an individual to deal in a larger quality, or a different type of drug, than he was predisposed to get involved with thus resulting in a higher sentence. (See: United States v Sed, 601 F.3d 224 (3d Cir. 2010); R v Nasogaluak, [2010] 1 SCR 206; and, R v Nur, [2015] 1 SCR 773)

Under the federal Guidelines, sentences are still based in the rationale that the quantity of drugs involved reflects the defendant’s place in the hierarchy. But that presumed relationship between quantity and culpability is disrupted when the police control the quantity. Although a defendant may have been willing to engage in a scheme with, for example, undercover police officers, and was not therefore entrapped, the defendant may not have had the predisposition to deal in the quantity that triggers the Guideline mandatory minimum sentence. The issue implicates the due process clause of the Fourteenth Amendment.

On August 8, 2016, Judge Gerald McHugh in the United States District Court for the Eastern District of Pennsylvania issued the Memorandum Opinion in USA v McLean, No. 13-CR-487, reducing the sentence imposed on Clifton McLean because the amount of narcotics that triggered the guideline sentence was invented by government agents. Judge McHugh began the ruling with this observation, at p. 1: “The latitude given to federal authorities in charging drug offences has been described as creating a ‘terrifying capacity for escalation of a defendant’s sentence.’ This case exemplifies that reality, as a defendant caught by an undercover ‘sting’ operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents.”

A sting operation involving the robbery of a stash house where a specific amount of drugs are purportedly stored has always been problematic. The police invariably attempt to justify a larger amount as being necessary to protect its agents – the larger amount enhances the credibility of the phoney quantity. The amount was five kilograms of cocaine in this case. Judge McHugh found that rationale questionable, at pp. 13-6:

• …[L]aw enforcement’s tactical concerns should not control either the severity of charges against a defendant or the range of sentences. To the extent that the Government constructs a crime, its elements should be related to a defendant’s culpability. Here, where the record is clear that McLean was ‘in for a penny, in for a pound,’ specifying such a high amount does not truly bear on his culpability. Once the Government established that McLean was willing to engage in an armed robbery of any quantity large enough to resell, its core law enforcement objective was met…The Government clearly had an interest in exposing the scope of his culpability and connections, and in seizing as great a quantity of drugs as possible. No similar interest exists where the crime itself is fictional.

• From my review of reported cases nationwide, I have not identified any investigation where the specified amount of cocaine in the fictional stash house was less than 5 kilograms. By statute…5 kilograms is the amount that triggers exposure to a 20-year mandatory minimum sentence. The rationale asserted for specifying such amounts is operational credibility – the notion that the amount must be sufficiently large that the suspects will find it believable, since an amount that is too low might raise the suspicions of the targeted individuals, thereby placing the agent in danger…Consequently, by the Government’s reasoning, the very nature of this type of undercover operation necessarily requires, for the safety of the operatives, a scenario that automatically triggers mandatory minimum sentences, even if the target of the sting would otherwise have taken the bait, and regardless of whether the suspect had ever before dealt in quantities of this kind.

• …Defendants have little ability to challenge or verify evidence of undercover operations that is presented solely in the form of testimony by a Government agent. Courts should exercise caution before automatically adopting ‘expert’ opinion from law enforcement about the essential elements of undercover operations, where accepting such opinions has the effect of controlling sentencing. Preliminarily, I have an institutional concern that the Government couches the justification for its technique in terms of officer safety…[W]ithout in any way jeopardizing the safety of any agent, a court can certainly ask why, even if it is necessary for purposes of ‘credibility’ to specify certain amounts as part of an operation, why it is necessary to charge the target of the investigation with such high amounts in every case?

• Substantively, I question whether a judge should be required to give controlling weight to purported expert testimony of law enforcement, where the net effect is to deprive the court of any meaningful discretion at sentencing…In stash house sting cases, the Government seeks to make [opinion testimony] dispositive because the charges themselves are the product of opinion testimony as to 1) the amount of cocaine that would be ‘expected’ to be found in a stash house, and 2) the necessity of specifying substantial amounts to preserve the credibility and safety of the operation. There is a third unstated premise as well – that the targets of the sting would have the same familiarity with the quantity of narcotics at the average stash house.

Judge McHugh declined to apply the mandatory minimum sentence that would have been triggered by relying on the amount of five kilograms. That resulted in a reduction of McLean’s sentence by five years. Judge McHugh then answered the constitutional question this way, at pp. 27-8:

“To the extent that principles of Due Process are meant to be a check on government power, there is no more fundamental interest than liberty. A sting operation that constructs a crime implicates liberty interests in a unique way, in that the Government seeks out its citizens for the purpose of testing their willingness to commit a criminal act. There can be no greater manifestation of the coercive power of Government than creating what is, in effect, a morality test, while specifying the penalty for failing that test in advance. There is a legitimate and compelling interest in combatting violent crime and narcotics trafficking, but given the implications for liberty when the Government custom designs both crime and punishment, the prosecution that follows should be narrowly tailored so as not to exceed its genuine law enforcement interest.

My decision does not question the authority of Congress to specify sentences for crime. I decide here that the statute is unconstitutional as applied in the circumstances of this case, because McLean was not properly charged with a crime involving 5 kilograms of cocaine. Stated differently, the branch of government with which I take issue is not the legislative, but the executive, and its use of mandatory minimum sentences in a manner which I have no reason to believe Congress contemplated.”

What, then, is the takeaway here? Maybe this. The stash house sting, as with the undercover terrorism operation and the Mr. Big scenario, will continue to present Canadian criminal lawyers with difficult constitutional issues and substantive questions of proof. But sentencing complexities will also persist in these multi-tiered cases. The ruling in McLean is a good reminder that sting operations may not only raise questions of entrapment but also questions that engage proportionality and the degree of moral blameworthiness in sentencing irrespective of a mandatory minimum sentence.