Embedded Files
In this session, we will look at how certain police investigation and interrogation techniques might clash with rights. In the course of the investigation, the police may be authorized to take steps which, if not strictly justified, would unlawfully intrude with the liberty of citizens. The Supreme Court has recognized that, short of arrest (see previous session), there is such a thing as short term "investigative detention" and an attendant power to search a suspect. There is a significant case law about the sort of warrantless searches that the police can conduct outside someone's home or without actually searching individuals. The question is how much information the police can glean from outside for example through sniffer dogs, heat detection cameras, hydro bills or wiretaps. All of these are crucial for investigative purposes and fall short of more coercive means of investigation, but concerns about privacy remain. The courts will review the evidence that was submitted to justify wiretapping carefully, for example, although as always will try to strike a balance between the rights protected and the legitimate demands of criminal investigations.
It is important to distinguish between pre-arrest and post-arrest interrogation. Before someone is arrested, they may be asked questions in the course of an investigation. The Supreme Court has recognized that this flows from the possibility of "investigative detention." By the time they have arrested someone, the police have more significant prerogatives. The goal of an interrogation is to reveal evidence and a degree of manipulation is part of that exercise. However, certain techniques are clearly off limits. The most obvious example would be torture but even without going that far, Canadian courts have been wary of interrogation techniques that involve bullying or trickery. The so-called "Reid technique" has come under attack in both Canada and the US as highly problematic, even more so when used against mere witnesses.
Note: this session is connected to subsequent sessions on exclusion of evidence, entrapment, and imaginary offenses all of which will be examined in detail later.
Class Preparation:
R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 (headnote only, excluding exclusion of evidence)
R. v. Evans, [1996] 1 S.C.R. 8 (headnote only)
R. v. Plant, [1993] 3 S.C.R. 281 (headnote only, ignore bit on exclusion of evidence)
R. v. Tessling, [2004] 3 SCR 432, 2004 SCC 67 (headnote only)
Sections 185-186 of the Criminal Code
R. v. Araujo, [2000] 2 S.C.R. 992, headnote and paras. 1-7, 19-49.
"…it may seem counterintuitive that people would confess to a crime that they did not commit…however, this intuition is not always correct. A large body of literature has developed documenting hundreds of cases where confessions have been proven false by DNA evidence, subsequent confessions by the true perpetrator, and other such independent sources of evidence.”
Justice Iacobucci, R. v. Oickle, [2000] 2 S.C.R. 3 at para. 35.
R. v. Oickle, [2000] 2 S.C.R. 3 (headnote only, including dissent)
R. v. Chapple, 2012 ABPC 229, paras. 1-5, 23-42, 49-88, 98-131.
“You’re Guilty, Now Confess: False Admissions Put Police’s Favourite Interrogation Tactic under Scrutiny.” National Post. Accessed November 18, 2016
Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, paras. 22-26.
Further Readings:
CONTENT WARNING: The video below contains content related to sexual violence and murder which may be disturbing to some viewers.
“Why Police Interrogations Lead to So Many False Confessions - VICE.” Accessed October 14, 2017. https://www.vice.com/en_au/article/vdqewd/why-police-interrogations-lead-to-so-many-false-confessions.
Craig, Jared. “Terrorism, Criminal Organizations, and Investigative Necessity for Wire-Taps.” Crim. LQ 61 (2014): 176.
Cruess, Jim. “Cost of Admission: One Rubber Stamp-Evaluating the Significance of Investigative Necessity in Wiretap Authorizations after R. v. Araujo.” Dalhousie J. Legal Stud. 22 (2013): 59.
Jai, Vipul. “Phone Tapping Laws-A Comparative Analysis,” 2011.
McCoy, Lesley A. “Some Answers from the Supreme Court on Investigative Detention... and Some More Questions.” Crim. LQ 49 (2004): 268.
Stribopoulos, James. “A Failed Experiment-Investigative Detention: Ten Years Later.” Alta. L. Rev. 41 (2003): 335.
———. “In Search of Dialogue: The Supreme Court, Police Powers and the Charter,” 2005.
———. “The Limits of Judicially Created Police Powers: Investigative Detention after Mann.” Crim. LQ 52 (2007): 299.
Tice, David. “Into the Back: Litigating Search Warrants and Wiretraps under the Sixth Step of Garofoli.” Crim. LQ 61 (2014): 102.
Whitling, N. J. “Wiretapping, Investigative Necessity, and the Charter.” Crim. LQ 46 (2002): 89.
Wiseman, Christine M. “The Reasonableness of the Investigative Detention: An Ad Hoc Constitutional Test.” Marq. L. Rev. 67 (1983): 641. Government of Canada, Department of Justice.
“REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE,” December 1, 2004. http://www.justice.gc.ca/eng/rp-pr/cj-jp/ccr-rc/pmj-pej/p6.html.
Beaumont, Peter, and Sufian Taha. “Israeli Military Court Orders Release of UK Man over Coerced Confession.” The Guardian, November 2, 2016, sec. World news
King, Lesley, and Brent Snook. “Peering inside a Canadian Interrogation Room an Examination of the Reid Model of Interrogation, Influence Tactics, and Coercive Strategies.” Criminal Justice and Behavior 36, no. 7 (2009): 674–94.
State of the State podcast: Why are kids more likely to give false confessions(9 minutes)
Davidson, Chris. “Good Cop, Bad Cop: Comparing the Law of Police Interrogations in Canada and Japan – Slaw.” Accessed November 28, 2016. http://www.slaw.ca/2013/07/25/good-cop-bad-cop-comparing-the-law-of-police-interrogations-in-canada-and-japan/.
Khasin, Irina. “Honesty Is the Best Policy: A Case for the Limitation of Deceptive Police Interrogation Practices in the United States.” Vand. J. Transnat’l L. 42 (2009): 1029.
King, Lesley, and Brent Snook. “Peering inside a Canadian Interrogation Room an Examination of the Reid Model of Interrogation, Influence Tactics, and Coercive Strategies.” Criminal Justice and Behavior 36, no. 7 (2009): 674–94.
Snook, Brent, Joseph Eastwood, Michael Stinson, John Tedeschini, and John C. House. “Reforming Investigative Interviewing in Canada.” Canadian Journal of Criminology and Criminal Justice 52, no. 2 (2010): 215–29.
Snook, Brent, Kirk Luther, Heather Quinlan, and Rebecca Milne. “Let’em Talk! A Field Study of Police Questioning Practices of Suspects and Accused Persons.” Criminal Justice and Behavior 39, no. 10 (2012): 1328–39.
Ainsworth, Janet E. “In a Different Register: The Pragmatics of Powerlessness in Police Interrogation.” The Yale Law Journal 103, no. 2 (1993): 259–322.
Cassell, Paul G., and Bret S. Hayman. “Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda.” UCLA Law Review 43 (1996): 839.
Irving, Barrie, and Linden Hilgendorf. Police Interrogation: A Case Study of Current Practice. HM Stationery Office, 1980.
———. Police Interrogation: The Psychological Approach. HM Stationery Office, 1980.
Kamisar, Yale. Police Interrogation and Confessions: Essays in Law and Policy. University of Michigan Press Ann Arbor, MI, 1980.
Leo, Richard A. Police Interrogation and American Justice. Harvard University Press, 2008.
Ofshe, Richard J., and Richard A. Leo. “The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions.” STUDIES IN LAW POLITICS AND SOCIETY 16 (1997): 189–254.
Softley, Paul, David Brown, Bob Forde, G. Mair, and D. Moxon. Police Interrogation: An Observational Study in Four Police Stations. HM Stationery Office, 1980.
“You’re Guilty, Now Confess: False Admissions Put Police’s Favourite Interrogation Tactic under Scrutiny.” National Post. Accessed November 18, 2016. http://news.nationalpost.com/news/canada/youre-guilty-now-confess-false-admissions-put-polices-favourite-interrogation-tactic-under-scrutiny.
Timothy E Moore & Lindsay Fitzsimmons, “Justice Imperiled: False Confessions and the Reid Technique” (2011) 57 Crim LQ 509 at 512–18, 522–530.
Whitling, N. J. “Wiretapping, Investigative Necessity, and the Charter.” Crim. LQ 46 (2002): 89.
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