Laws on Police Misconduct in Canada Compared to the United States

In the last blog post, we covered how some police investigative techniques infringe on the constitutional protection against unreasonable search found in Section 8 of the Charter of Rights and Freedoms (Canada) and the Fourth Amendment (United States). It was noted that these investigative techniques – surveillance and obtaining information from third-parties – did not necessarily involve an interference with the property rights of the suspect. They may, instead, implicate privacy rights. However, there may be other investigative techniques that can yield the same kind of information to the police. Again, a controversy arises as to whether there is protection against techniques that invade the same private sphere, even though above provisions of the Constitution granting these rights would not apply.

If the police, without getting a search warrant, may not carry out certain forms of surveillance and may not obtain information of a private nature from a third-party, as described in the last blog post, may the police instead employ subterfuge to obtain the same information?

In the United States, the answer is a clear “yes”. In Lewis v. United States, it was held that when a home is opened as a place of illegal business to which outsiders are invited for commercial purposes, the Fourth Amendment is not violated when a police officer enters pursuant to an invitation and then neither sees, hears, nor takes anything either unrelated to the business purpose of his visit or not contemplated by the occupant. The opinion suggests that the Court may have decided differently if the police were to have started poking around in the home contrary to the intentions of the suspect. On the facts of the case, an undercover police officer merely entering the home and observing the surroundings is not a search.

In Canada, however, the answer is unclear. In R v. Evans, it was held that when an undercover police officer, acting on a tip, knocked on the front door of a home and smelled marijuana when the door was opened, the act of entering the property with an intention to obtain evidence (rather than for some other reason) is an unreasonable warrantless search. It seems that, if the police officer had, communicated beforehand with the home’s resident, and used a pretext in order to be invited onto the premises, then the act of entering the property would still be to obtain evidence, and then a warrant would still be required.

Nonetheless, in Contant v. R (a Quebec case), it was held that when an undercover police officer used a pretext in order to be invited into a home to carry out a narcotics purchase, then the entry was no longer for the purpose of searching for evidence. Going even further, in R v. Gallaugher (an Ontario case), it was held that when an undercover police officer used a pretext in order to be invited into a home for an innocent activity, then the entry is no longer for the purpose of searching for evidence.

Clearly, the court in R v. Gallaugher simply failed to follow R v. Evans because the facts of the two cases cannot be distinguished. The holding in Contant v. R is equivalent to the American doctrine in Lewis v. United States. The best way to reconcile the two Canadian cases is to consider the police officer’s door knock in R v. Evans to be a sham that cannot conceal its true purpose as a search while considering the subterfuge in Contant v. R (or its equivalent American case in Lewis v. United States) to be a “justified” sham because having received an invitation to carry out a narcotics purchase means there is very little chance that no evidence will be found during the entry onto the premises. The justification operates in a similar way as the plain view doctrine.

As mentioned in a previous blog post, in both Canada and the United States, there is a constitutional right against self-incrimination. This is found in Section 7 of the Charter of Rights and Freedoms mainly (also relevant are Section 11(c) and Section 13) and in the Fifth Amendment (also relevant is the Fourteenth Amendment), respectively. As will be discussed below, there are many ways in which Canada and the United States differ on the constitutional protections associated with these rights.

Firstly, as mentioned in the previous blog post, in Canada, police are required to inform suspects of their rights upon an investigative detention (equivalent to a Terry stop in the United States) but in the United States, police only need to do so (read the Miranda rights) upon arrest.

Secondly, Canada and the United States also differ significantly when it comes to the legality of the jailhouse confession. In the United States, the police need not read the suspect Miranda rights when posing as a fellow detainee in a pre-trial detention center in order to elicit self-incriminating statements from a suspect because there is no “coercive atmosphere” if the suspect does not know that the fellow detainee is an undercover police officer (Illinois v. Perkins). It is only where the undercover officer or informant posing as a fellow detainee exerts pressure – including psychological pressure – on the suspect that a confession becomes involuntary, and its admission violates Fourteenth Amendment due process rights (Arizona v. Fulminant). In Canada, the jailhouse confession is disapproved generally. In R v. Liew, it was held that “a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent … In deciding whether the statements were actively elicited, it must be determined whether the state agent actively sought out information such that the exchange could be characterized as akin to an interrogation. An assertion of the right to silence on the part of the accused is not a condition precedent [and] an atmosphere of oppression is not required to ground a finding that a detainee’s right to silence was violated.”

Thirdly, different consequences attach after a suspect has invoked the right to remain silent and the right to counsel in Canada compared to the United States. In the United States, once the suspect asks for a lawyer, the police must stop questioning until the lawyer arrives. And if the suspect takes the fifth, then the police must stop questioning. In Canada, there is no right to have a lawyer present during an interrogation – this is at the discretion of the police. Otherwise, the suspect only has the right to a brief meeting with the lawyer prior to the interrogation. The defendant has a right to remain silent, but the police can keep asking.

The above practice, unfortunately, has the effect of making Canada more akin to an “inquisitorial system” than an “accusatorial system”, which were described by the Supreme Court of the United States in Rogers v. Richmond: “convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.”

Finally, Canada and the United States differ on the use of fabricated evidence to elicit a confession from the suspect. In the United States, in order to elicit a confession, it is entirely permissible for the police to deceive the suspect about the evidence that they have already obtained. However, in some jurisdictions, the police can lie but they cannot fabricate a piece of evidence and show it to the suspect. In Canada, the degree of police trickery and whether the police made any threats or promises are regarded as factors that tend to produce an involuntary confession (R v. Oickle).

In the above, we touched on the right to counsel. There is another important way in which Canada and the United States differ with respect to the right to counsel, found in Section 10 of the Charter of Rights and Freedoms and the Sixth Amendment, respectively. In the United States, counsel must be provided to defendants in all felony cases, regardless of the ability to pay (Gideon v. Wainwright et al). Even in non-felony cases, if the case results in a sentence of actual imprisonment, counsel must be provided as well. But if the defendant was not sentenced to imprisonment, even though the applicable statute allowed for it, then the government is not obligated to provide counsel. In Canada, by comparison, government counsel is only provided to indigent defendants.

Now let us leave aside the right against self-incrimination and move on to the topic of entrapment. Under common law, entrapment is an affirmative defense in a criminal case. The defense must prove it by a preponderance of the evidence. In Canada, as a matter of procedure, the defense of entrapment is only decided after a finding of guilt by the trier of fact (such as a jury). If entrapment is found, then the judge will order a “stay of proceedings”.

In the United States, the entrapment defense means that the police inappropriately pressed the defendant to commit the crime, so the defendant is not culpable. However, an undercover police officer is permitted to use creative methods to tempt the defendant to commit a crime and only the most coercive efforts could be considered entrapment. By comparison, in Canada, there are two types of entrapment. An inducement-based entrap is the same as the American concept of entrapment. But there is another type – the opportunity-based entrapment. Under this theory, entrapment happens when the defendant’s commission of a crime is caused by “random virtue testing”. In R v. Barnes, it was held that random virtue testing is when a police officer presents a person with the opportunity to commit an offence without 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. Canadian police are therefore required by judicial decisions to target their investigative techniques toward more specific targets than the general public.

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