Supreme Court of Canada - Case-law concerning police powers of investigation (1999) (English)
Supreme Court of Canada:
Authorization to Conduct Criminal Investigations
Police illegality/unacceptable conduct
R. v. CAMPBELL [1999] 1 S.C.R. 565
Unless legislation provides immunity for illegal action, illegal action by police may result in a finding of abuse of process.
Authorization and Use of Interception of Communication/ Surveillance Methods
Investigative Necessity [C.C.186(1)(b)]
R. v. ARAUJO [2000] 2 S.C.R. 992
In order to satisfy the investigative necessity test set out in s. 186(1)(b) of the Criminal Code, the police must establish in their affidavit that, practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.
When is non-disclosure fatal?
CHAMBERS v. THE QUEEN [1986] 2 S.C.R. 29
Non-disclosure by the police of facts that are material either to whether the authorization should be granted, or to the terms of such an authorization, will invalidate the authorization.
Expansion of prior wiretap authorization: renewal, or fresh authorization
R. v. THOMPSON [1990] 2 S.C.R. 1111
"Where an authorization is in existence and where it is desired to extend its term and leave its other provisions unaltered, an application for its renewal is the proper step for the authorities to take. Where the authorization has expired or where it is sought to extend the scope of surveillance, the proper course is to seek a new authorization."
Is it a "private communication"?
MONACHAN v. THE QUEEN [1985] 1 S.C.R. 176
"A message to a police station to convey a threat to a police officer cannot reasonably be looked upon as a private communication."
"Known" person [C. C. 185(1)(e)]
R. v. CHESSON [1988] 2 S.C.R. 148
For the purposes of Part VI of the Criminal Code, a "known" person is one who, at the time the police apply for the authorization, satisfies the two criteria of s. 185(1)(e): 1- the existence of that person is known to the police; and 2- that person is one the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence. If the person is "known" in that sense, then the authorization must identify that person, and the police cannot use the authorization's "basket"clause (reserved for unknown persons) as authority to intercept that person's private communications.
Manner of interception
R. v. LAWRENCE [1988] 1 S.C.R. 619
The manner of interception may be expressed in very specific terms in the authorization, or in broad terms leaving open to the police the choice of manner of interception to be used.
Use for non-specified offence
R. v. COMMISSO [1983] 2 S.C.R. 121
When an authorization to intercept private communications in respect of a specified offence is lawfully obtained, the police may also, under this authorization, intercept private communications in respect of a different offence, (even if the police anticipated the latter interceptions).
Basket Clauses/Overly Broad Clauses
R. v. ACKWORTH [1987] 2 S.C.R. 291
( affirming R. v. Patterson (1985) 18 C.C.C. (3d) 137 [Ont. C.A.] )
A "basket" clause, in an authorization, permitting the police to intercept the private communications of unknown persons "provided that there are reasonable and probable grounds to believe that the interception of such private communications may assist the investigation" of named offences, is overly broad and invalid. Therefore, the police should not rely on such a clause as authorization to intercept private communications.
GRABOWSKI v. THE QUEEN [1985] 2 S.C.R. 434
When there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannot be separated but are actually separate authorizations given in the same order, the Court can divide the order and preserve the valid portion, which then forms the authorization. In such case, interceptions made under the valid authorization are admissible.
Privileged communications
LLOYD et al. v. THE QUEEN [1981] 2 S.C.R. 645
Communications protected by marital privilege remain privileged notwithstanding that such communications were the subject of a lawfully authorized interception under Part VI of the Criminal Code.
Use of Special Investigation Measures and Techniques
Entrapment/"random virtue testing"
R. v. MACK [1988] 2 S.C.R. 903
There is entrapment when: (a) police provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity, or without acting in the course of a bona fide investigation; or, (b) although having such a reasonable suspicion or acting in the course of a bona fide investigation, the police go beyond providing an opportunity and induce the commission of an offence.
R. v. BARNES [1991] 1 S.C.R. 449
"Random virtue testing" is a form of entrapment unless it falls within the scope of a bona fide investigation. It falls within that scope when the police present a person with the opportunity to commit an offence with a reasonable suspicion that (a) the person is already engaged in the particular criminal activity, or (b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.
Use of Interrogation and the Right to Remain Silent
Confession to an undercover police officer
R. v. HEBERT [1990] 2 S.C.R. 151
The use of an undercover police officer to actively elicit information from a detained suspect to subvert the suspect's choice not to make a statement to the police, violates the right to remain silent.
R. v. LIEW [1999] 3 S.C.R. 227
Subterfuge, in and of itself, by the police, does not violate the right to remain silent. It is the act of interrogating the accused or eliciting information from the accused, with a view to subverting the right to silence, which violates the right to silence. The accused does not have to assert his right to silence in order for the right to apply, or for subversion of the right to occur.
Confession to a police agent
R. v. BROYLES [1991] 3 S.C.R. 595
The use of a police agent to actively elicit information from a detained suspect to subvert the suspect's choice not to make a statement to the police, violates the right to remain silent.
Appropriate police perseverance in questioning a person not detained
R. v. HICKS [1990] 1 S.C.R. 120
Although having expressed the desire not to make a statement to the police, a person who is not detained may nevertheless be further questioned by the police without this being a violation of the right to remain silent.
Statutorily compelled statement
R. v. WHITE [1999] 2 S.C.R. 417
Statements provided under compulsion of statute are inadmissible against the persons who made them.
R. v. FITZPATRICK [1995] 4 S.C.R. 154
Exception: Statements provided under compulsion of statute as a condition of participation in a regulatory sphere are admissible against the persons who made them.
Conscriptive versus non-conscriptive evidence
R. v. STILLMAN [1997] 1 S.C.R. 607
Evidence is conscriptive when an accused, in violation of his rights, is compelled by the state to incriminate himself by means of a statement, the use of the body or the production of bodily samples. Its admission may render the trial unfair.
Derivative evidence
R. v. S. (R.J.) [1995] 1 S.C.R. 451
Section 7 of the Charter requires that persons compelled to testify be provided with subsequent "derivative use immunity", in addition to the "use immunity" guaranteed by s. 13 of the Charter.
R. v. STILLMAN [1997] 1 S.C.R. 607
Derivative evidence refers to the evidence which has been discovered as a result of conscripted evidence, as where the discovery of the murder weapon (derivative evidence) was the result of the accused's coerced confession (conscripted evidence). Its admission will render a trial unfair unless the Crown can demonstrate that the evidence would have been discovered in any event either because an independent source for the same evidence exists or because its discovery was inevitable.
R. v. BURLINGHAM [1995] 2 S.C.R. 206
Where the derivative evidence would not have been found but for conscripted evidence (i.e., information leading to it which was obtained in violation of the Charter), the derivative evidence will be inadmissible.
Waiver: the "operating mind" test
R. v. WHITTLE [1994] 2 S.C.R. 914
A genuine waiver of rights occurs if the person possesses an operating mind. The operating mind test requires that the person possess a limited degree of cognitive ability to understand what he is saying and to comprehend that the evidence may be used in proceedings against him. It does not require a determination that he is capable of making a good or wise choice or one that is in his interest.
Protection of Witnesses and Collaborators of Justice
Police-informer privilege
SOL. GEN. CAN. et al. v. ROYAL COMM. (HEALTH RECORDS)
[1981] 2 S.C.R. 494
As a general rule, based on public policy, peace officers cannot be compelled by courts or tribunals to disclose the identities of persons, to whom an assurance of confidentiality was given, from whom they have obtained information while acting in the course of their duties in connection with the investigation of crime or national security. Exeception: The rule does not apply when, in a criminal prosecution, the informer's identity is necessary for the defendant to establish his innocence.
Paid Informants
R. v. DIKAH [1994] 3 S.C.R. 1020
[confirming 89 C.C.C. (3d) 321 (Ont. C.A.)]
An arrangement whereby payment in full to a police agent is made conditional on the laying of charges does not amount to an inherent abuse of process, nor does it, in and of itself, discredit the agent as a witness.
Jailhouse Informants
R. v. BROOKS [2000] 1 S.C.R. 237
The fact that an informant is a "jailhouse" informant will not in and of itself discredit that informant as a credible witness.
Basic principle of admissibility of Statements/ Confessions
R. v. BOUDREAU [1949] S.C.R. 262
To be admissible against the accused, a statement made by the accused to a person in authority must be made freely and voluntarily. A statement is not voluntarily made if it has been obtained from the accused either by fear or prejudice or hope of advantage exercised or held out by a person in authority.
R. v. HODGSON [1998] 2 S.C.R. 449
To be admissible against the accused, a statement made by the accused to a person in authority must have been made voluntarily and must be the product of an operating mind.
A "person in authority" is a person who is formally engaged in the arrest, detention, examination or prosecution of the accused, and includes any other person whom the accused reasonably believes is acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against the accused
R. v. OICKLE [2000] 2 S.C.R. 3
There are two elements to the confessions rule: in order for the confession to be freely and voluntarily made, it must not be induced by any threats or promises, or by an atmosphere of oppression, or by trickery that shocks the community, and it must be the product of an operating mind capable of deciding between alternatives. Statements made as the result of intimidating questions or of questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession, are inadmissible.
Timidity of the suspect
R. v. HOBBINS [1982] 1 S.C.R. 553
The state of mind of the suspect, and an atmosphere of oppression created by the police in the circumstances surrounding the taking of a statement, are relevant to the admissibility of a statement made to the police after interrogation. However, the suspect's own timidity or subjective fear of the police will not make his confession inadmissible unless there are external circumstances brought about by the conduct of the police that can be said to cast doubt on the voluntariness of a statement or confession, or there are other considerations affecting the suspect that justify doubt as to the voluntariness of the statement/confession.
Insanity/unstable character of the suspect
R. v. NAGOTCHA [1980] 1 S.C.R. 714
Inculpatory statements made by an insane person are not automatically inadmissible, because the fact that a person is insane does not necessarily preclude the possibility of making a statement freely and voluntarily.
Youth of the suspect
R. v. I. (L.R.) and T. (E.) [1993] 4 S.C.R. 504
"Section 56 [of the Young Offenders Act, R.S.C. 1985, c.Y-1] sets out strict requirements which must be complied with in order to render a statement made by a young person to a 'person in authority' admissible in proceedings against him or her. The rationale for this lies in Parliament's recognition that young persons generally have a lesser understanding of their legal rights than do adults and are less likely to assert and exercise fully those rights when confronted with an authority figure. The requirements in s.56(2)(b) reflect this concern; a young person is given the right to consult with a parent or other adult as well as the right to counsel upon arrest or detention, and is entitled to have a lawyer or parent or other adult present when making a statement. The young person must also be specifically told prior to the taking of any statement, in language appropriate to his or her level of understanding, that he or she is under no obligation to make a statement and that anything said may be used as evidence in proceedings against him or her."
Prior inadmissible statement
R. v HOBBINS [1982] 1 S.C.R. 553
There is no presumptive tainting of a second statement merely because a prior statement taken by the same interrogative officers is ruled inadmissible. Factual considerations govern, including similarity of circumstances and of police conduct, as well as the lapse of time between taking of statements.
Prior inconsistent statements
R. v. B. (K.G.) [K.G.B.] [1993] 1 S.C.R. 740
Where a major crime such as murder is being investigated, the testimony of a witness is important to the Crown's case, and the character of the witness suggests that precautions be taken to ensure the reliability of the statements taken by the police from that witness, the police should explicitly warn the witness of the severe criminal sanctions for the making of a false statement and then have the witness make his/her statement under oath, solemn affirmation or solemn declaration, and the statement should be videotaped in its entirety.
Language difficulties
R. v. LAPOINTE and SICOTTE [1987] 1 S.C.R. 1253
(upholding the judgment of the Ont. C. A. (1983) 9 C.C.C. (3d) 366)
"In every case where police officers deal with a suspect whose mother tongue is different, every effort should be made to obtain a qualified interpreter. Ideally, officers taking the statements should be familiar with the language of the suspect. This is, of course, not always possible even in a multi-cultural society. Where no such officer is present, an interpreter should be made available." (Per Lacourcière, J.A., Ont. C.A., at p.385.
Right to disclosure: Crown obligation to disclose fruits of investigation
R. v. STINCHCOMBE [1991] 3 S.C.R. 326
The Crown has a legal duty to disclose all relevant information to the defence
Therapeutic records (including medical, counselling, and school records)
R. v. O'CONNOR [1995] 4 S.C.R. 417
Even private or confidential documents such as therapeutic records, that are in the possession of the Crown, must be disclosed to the defence.
Wiretap packets
R. v. GAROFOLI [1990] 2 S.C.R. 1421
R. v. DURETTE [1994] 1 S.C.R. 469
When determining whether the contents of wiretap affidavits should be disclosed to an accused, full disclosure is the rule subject to certain exceptions: to justify non-disclosure, the Crown must show that disclosure will be prejudicial to the public interest in that it will compromise confidential police informants, ongoing law enforcement investigations, the police's intelligence-gathering techniques, or the interests of innocent persons, and that the prejudice to the public's interests outweighs the prejudice to the interests of the accused. The affidavits should be edited only to the extent necessary to protect those overriding public interests.
Informer privilege
R. v. LEIPERT [1997] 1 S.C.R. 281
An exception to the informer privilege rule applies if the accused can demonstrate that it is absolutely essential to establishing his/her innocence.
Duty to preserve the fruits of investigation, and explain their loss
R. v. LA [1997] 2 S.C.R. 680
The Crown's duty to disclose relevant evidence gives rise to a duty to preserve such evidence, and to provide a satisfactory explanation if it is lost or destroyed.