Admissions to Undercover Officers or Agents: Difference between revisions

From Criminal Law Notebook
← Older editNewer edit →
VisualWikitext
No edit summary
No edit summary
Line 1: Line 1:
{{LevelZero}}{{HeaderAdmissions}}
==General Principles==
==General Principles==
{{seealso|Admissions|Right Against Self-Crimination}}
{{seealso|Admissions|Right Against Self-Crimination}}

Revision as of 08:15, 14 April 2020

General Principles

See also: Admissions and Right Against Self-Crimination

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]

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.

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]

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.[6] 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.[7]

Similarly, statements that are spontaneous to an undercover officer will not violate the right to silence.[8] The police conduct must not "subvert" the accused's rights.[9]

There is no bar on exchanges between undercover and suspect who choses to freely speak to someone who happens to be an undercover.[10]

An undercover officer posing as an inmate within a prison may only listen and not actively seek a confession.[11]

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.[12]

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.[13]

Cell Plant or Cell Shot

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.[14]

  1. ↑ R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151, per McLachlin J
    R v Liew, 1999 CanLII 658 (SCC), [1999] 3 SCR 227, per Major J
    R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 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.")
  6. ↑ R v Johnston, (1991) 64 CCC (3d) 233 (ONCA)(complete citation pending)
    R v Gray, 1992 66 CCC (3d) 6 (ONCA)(complete citation pending)
  7. ↑ 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")
  8. ↑ R v Graham, 1991 CanLII 7134 (ON CA), (1991), 1 O.R. (3d) 499, per Finlayson JA leave refused (1992), 69 CCC (3d) vi
  9. ↑ Hebert, supra
  10. ↑ Hebert, supra
    Liew, supra
  11. ↑ R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151, per McLachlin J
    R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per Iacobucci J
  12. ↑ R v Grandinetti, 2005 SCC 5 (CanLII), [2005] 1 SCR 27, per Abella J
  13. ↑ Broyles, supra, 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.")
  14. ↑ R v Gillis, NSSC 20 (CanLII) {{{3}}}, per Rosinski J, at para 44(complete citation pending)
    contra R v Spanavello (1998), 125 CCC (3d) 97, [1998] BCJ 1208 (CA)

Admissions During "Mr. Big" Operations

Retrieved from "https://criminalnotebook.ca/index.php?title=Admissions_to_Undercover_Officers_or_Agents&oldid=49485"