Admissions to Undercover Officers or Agents

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General Principles

See also: Admissions and Right Against Self-Crimination

Admissions to Undercover Officer

Generally, statements that are spontaneous to an undercover officer will not violate the right to silence.[1] However, the police conduct must not "subvert" the accused's rights.[2]

There is no bar on exchanges between undercover and suspect who choses to freely speak to someone who happens to be an undercover.[3]

Where the accused knows that they are talking to an agent of the state and makes voluntary admissions, there will be no violation of the right to silence.[4]

Out of Custody vs In Custody Admission

An undercover officer who is in contact with an accused out of custody, such as during a "Mr. Big" operation, may listen and actively attempt to elicit confessions.[5]

In-Custody Admissions

An undercover officer posing as an inmate within a prison may only listen and not actively seek a confession.[6]

Cell Plant or Cell Shot After Interview

Where there has been a refusal by a detainee to give a statement during an formal cautioned interview, there is no rule precluding the use of a cell plant afterwards to gain admissions.[7]

  1. R v Graham, 1991 CanLII 7134 (ONCA), OR (3d) 499, 62 CCC (3d) 128, per Finlayson JA leave refused (1992), 69 CCC (3d) vi
  2. Hebert, supra
  3. Hebert, supra
    Liew, supra
  4. R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per Iacobucci J, at para 27 ("In general, there will be no violation of the suspect's right to silence if the suspect volunteers the information, knowing he or she is talking to an agent of the state.")
  5. R v Grandinetti, 2005 SCC 5 (CanLII), per Abella J
  6. R v Hebert, 1990 CanLII 118 (SCC), per McLachlin J
    Broyles, supra
  7. R v Gillis, 2018 NSSC 20 (CanLII), per Rosinski J, at para 44
    contra R v Spanavello; Seddon, 1998 CanLII 4695 (BCCA), 125 CCC (3d) 97, [1998] BCJ 1208 (CA), per curiam

"actively elicited information"

An undercover officer cannot "actively elicited information" from the accused without violating their s. 7 right to silence. They may only passively observe.[1] To determine whether a statement was "actively elicited" or not, depends on consideration of whether "considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused?"[2]

Steps of Analysis

First, it must be determined if the person receiving the statement was an agent or not.[3] Second, it must be determined if the statement was "actively elicited" contrary to the right to silence.

Factors of Analysis

The question of elicitation involves two dimensions:[4]

  1. concerns of "the nature of the exchange between the accused and the state agent"
  2. concerns of "the nature of the relationship between the state agent and the accused". This includes whether there was a relationship of trust that was exploited.

The focus on the first factors should be upon whether the conversations were functionally equivalent to an interrogation.[5]

  1. R v Hebert, 1990 CanLII 118 (SCC), per McLachlin J
    R v Liew, 1999 CanLII 658 (SCC), per Major J
    R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per Iacobucci J
  2. Broyles, ibid., at para 31
  3. Hebert, supra
  4. Broyles, ibid.
  5. Broyles, supra ("The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.")

Admission to Agents

Where the informer is acting independent of the will of the police, any statements obtained will generally not be subject to the right to silence.[1] This asks the question of whether the exchange would have still taken place, in the form and manner that it did, but for the intervention of the state.[2]

  1. R v Johnston, 1991 CanLII 7056 (ONCA), 64 CCC (3d) 233 (ONCA), per Finlayson JA
    R v Gray, 1991 CanLII 7229 (ONCA), 1992 66 CCC (3d) 6 (ONCA), per Dubin CJ
  2. Broyles, supra ("...would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents")

Admissions During "Mr. Big" Operations