Admissions to Undercover Officers or Agents: Difference between revisions
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==General Principles== | ==General Principles== | ||
{{seealso|Admissions|Right Against Self-Crimination}} | {{seealso|Admissions|Right Against Self-Crimination}} | ||
==Admissions to Undercover Officer== | |||
Generally, statements that are spontaneous to an undercover officer will not violate the right to silence.<ref> | |||
''R v Graham'', [http://canlii.ca/t/g1f68 1991 CanLII 7134] (ON CA), (1991), 1 O.R. (3d) 499{{perONCA|Finlayson JA}} leave refused (1992), 69 CCC (3d) vi | |||
</ref> | |||
However, the police conduct must not "subvert" the accused's rights.<ref> | |||
{{supra1|Hebert}}</ref> | |||
There is no bar on exchanges between undercover and suspect who choses to freely speak to someone who happens to be an undercover.<ref> | |||
{{supra1|Hebert}}<br> | |||
{{supra1|Liew}} | |||
</ref> | |||
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.<ref> | |||
{{supra1|Broyles}}{{atL|1fshb|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.") | |||
</ref> | |||
; 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.<ref> | |||
''R v Grandinetti'', [http://canlii.ca/t/1jmfq 2005 SCC 5] (CanLII), [2005] 1 SCR 27{{perSCC|Abella J}} | |||
</ref> | |||
; In-Custody Admissions | |||
An undercover officer posing as an inmate within a prison may only listen and not actively seek a confession.<ref> | |||
''R v Hebert'', [http://canlii.ca/t/1fst9 1990 CanLII 118] (SCC), [1990] 2 SCR 151{{perSCC|McLachlin J}}<br> | |||
''R v Broyles'', [http://canlii.ca/t/1fshb 1991 CanLII 15] (SCC), [1991] 3 SCR 595{{perSCC|Iacobucci J}}<br> | |||
</ref> | |||
; 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.<ref> | |||
{{CanLIIR|Gillis|2018 NSSC 20 (CanLII)}}{{perNSSC|Rosinski J}}{{atL||44}}{{fix}}<br> | |||
{{contra}} ''R v Spanavello'' (1998), 125 CCC (3d) 97, [1998] BCJ 1208 (CA)<Br> | |||
</ref> | |||
{{reflist|2}} | |||
==="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.<ref> | An undercover officer cannot "actively elicited information" from the accused without violating their s. 7 right to silence. They may only passively observe.<ref> | ||
''R v Hebert'', [http://canlii.ca/t/1fst9 1990 CanLII 118] (SCC), [1990] 2 SCR 151{{perSCC|McLachlin J}}<Br> | ''R v Hebert'', [http://canlii.ca/t/1fst9 1990 CanLII 118] (SCC), [1990] 2 SCR 151{{perSCC|McLachlin J}}<Br> | ||
''R v Liew'', [http://canlii.ca/t/1fqjh 1999 CanLII 658] (SCC), [1999] 3 SCR 227{{perSCC|Major J}}<br> | ''R v Liew'', [http://canlii.ca/t/1fqjh 1999 CanLII 658] (SCC), [1999] 3 SCR 227{{perSCC|Major J}}<br> | ||
''R v Broyles'', 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595{{perSCC|Iacobucci J}}<br> | ''R v Broyles'', 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595{{fix}}{{perSCC|Iacobucci J}}<br> | ||
</ref> | </ref> | ||
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?"<ref> | 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?"<ref> | ||
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</ref> | </ref> | ||
; Steps of Analysis | |||
First, it must be determined if the person receiving the statement was an agent or not.<ref> | First, it must be determined if the person receiving the statement was an agent or not.<ref> | ||
{{supra1|Hebert}}</ref> | {{supra1|Hebert}}</ref> | ||
Second, it must be determined if the statement was "actively elicited" contrary to the right to silence. | 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:<ref> | The question of elicitation involves two dimensions:<ref> | ||
{{ibid1|Broyles}} | {{ibid1|Broyles}} | ||
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</ref> | </ref> | ||
{{reflist|2}} | |||
==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.<ref> | 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.<ref> | ||
''R v Johnston'', (1991) 64 CCC (3d) 233 (ONCA){{fix}}<br> | ''R v Johnston'', (1991) 64 CCC (3d) 233 (ONCA){{fix}}<br> | ||
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</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
{{supra1|Broyles}} ("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") | {{supra1|Broyles}} ("...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") | ||
</ref> | </ref> | ||
Revision as of 08:37, 14 April 2020
General Principles
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]
- ↑ R v Graham, 1991 CanLII 7134 (ON CA), (1991), 1 O.R. (3d) 499, per Finlayson JA leave refused (1992), 69 CCC (3d) vi
- ↑ Hebert, supra
- ↑
Hebert, supra
Liew, supra - ↑ 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.")
- ↑ R v Grandinetti, 2005 SCC 5 (CanLII), [2005] 1 SCR 27, per Abella J
- ↑
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
- ↑
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)
"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]
- concerns of "the nature of the exchange between the accused and the state agent"
- 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]
- ↑
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(complete citation pending), per Iacobucci J
- ↑ Broyles, ibid., at para 31
- ↑ Hebert, supra
- ↑ Broyles, ibid.
- ↑ 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]
- ↑
R v Johnston, (1991) 64 CCC (3d) 233 (ONCA)(complete citation pending)
R v Gray, 1992 66 CCC (3d) 6 (ONCA)(complete citation pending)
- ↑ 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")