Supreme Court Judgments

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R. v. Liew, [1999] 3 S.C.R. 227

 

Kok Leong Liew                                                                                Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Liew

 

File No.:  26676.

 

1999:  March 19; 1999:  September 16.

 

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

 

on appeal from the court of appeal for alberta

 

Constitutional law -- Charter of Rights  -- Right to silence -- Elicitation -- Accused making inculpatory statements to undercover police officer in cell block -- Whether atmosphere of oppression required to ground finding that accused’s right to silence was violated -- Whether statements were actively elicited by police in violation of accused’s right to silence -- Canadian Charter of Rights and Freedoms, s. 7 .

 


The accused was arrested in connection with a cocaine deal and the police also pretended to arrest the undercover officer who negotiated the transaction.  A cell block interview was arranged at police headquarters and the undercover officer was placed in an interview room with the accused.  The accused initiated a brief exchange by a direct reference to the circumstances of his arrest.  During the conversation, the undercover officer asked the accused “What happened?” and stated “Yeah.  They got my fingerprints on the dope”.  The accused replied:  “Lee and me too”.  At trial, a voir dire was held and the trial judge found that the conduct of the police breached s. 7  of the Canadian Charter of Rights and Freedoms  and excluded the statements under s. 24(2)  of the Charter .  The accused was acquitted.  On appeal, the majority of the Court of Appeal allowed the Crown’s appeal and ordered a new trial.

 

Held (Lamer C.J. dissenting):  The appeal should be dismissed.

 

Per L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.:  The right to silence of a detained person under s. 7  of the Charter  must be interpreted in a manner which secures to the detained person the right to make a free and meaningful choice as to whether to speak to the authorities or to remain silent.  The right to silence is not absolute, however, capable of being discharged only by waiver.  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.  Hebert expressly allows for situations where, though speaking to an undercover officer, the detainee’s speech is voluntary, in the sense that she must be taken to have freely accepted the risk of her own actions.  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 to the application of the Hebert doctrine.  An atmosphere of oppression is not required to ground a finding that a detainee’s right to silence was violated.


Nothing in the facts of this case supports the proposition that the exchange between the accused and the undercover officer was the functional equivalent of an interrogation.  It is of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified, or lied, so long as the responses by the accused were not actively elicited or the result of interrogation.  It was the accused who initiated the brief exchange by a direct reference to the circumstances of his arrest and thus directed the conversation to an area where the police were seeking information.  The police officer’s question, “What happened?”, picked up the flow and content of the conversation and cannot be said to have directed or re-directed it to a sensitive area.  The officer did nothing more than continue the conversation about the arrest initiated by the accused.  Nor does the officer’s comment introducing the subject of fingerprints and thus of possible possession change the fact that the accused’s admissions were volunteered.  There is nothing in evidence, moreover, to support the proposition that there was a relationship of trust between the undercover officer and the accused.  Nor was the accused obligated or vulnerable to the undercover officer.  Nor can it be said that the undercover officer manipulated the accused to bring about a mental state in which the accused was more likely to talk.

 


Per Lamer C.J. (dissenting):  The contested portion of the accused’s statement was actively elicited and should be excluded.  The police officer’s comment “Yeah.  They got my fingerprints on the dope” took over the conversation and directed it to possession, an area where the police needed information.  While the police officer’s comment was not grammatically framed as a question per se, substance must triumph over form.  The undercover officer’s comment elicited the necessary agreement that indeed the accused’s fingerprints were also on the drugs.  Where, as here, an accused has indicated a desire to exercise his right to counsel, the state is required to “hold off” from eliciting incriminatory evidence until the accused has had a reasonable opportunity to contact a lawyer.  As the accused’s s. 7  right to silence was violated, the statements that were actively elicited should be excluded pursuant to s. 24(2) .

 

Cases Cited

 

By Major J.

 

Considered:  R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Hebert, [1990] 2 S.C.R. 151.

 

By Lamer C.J. (dissenting)

 

R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Prosper, [1994] 3 S.C.R. 236.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 7 , 10 (b), 24(2) .

 

Criminal Code, R.S.C., 1985, c. C-46, s. 691(2) (a) [repl. 1997, c. 18, s. 99].

 

APPEAL from a judgment of the Alberta Court of Appeal (1998), 60 Alta. L.R. (3d) 13, 212 A.R. 381, 168 W.A.C. 381, 124 C.C.C. (3d) 202, 15 C.R. (5th) 325, [1998] 7 W.W.R. 497, [1998] A.J. No. 369 (QL), allowing the Crown’s appeal from the accused’s acquittal and ordering a new trial.  Appeal dismissed, Lamer C.J. dissenting.

 

M. Deborah Stewart and Sid M. Tarrabain, for the appellant.

 


Ronald C. Reimer and Pamela Clarke, for the respondent.

 

The following are the reasons delivered by

 

//The Chief Justice//

 

1                                   The Chief Justice (dissenting) -- I have read the reasons of my colleague Justice Major and agree with the manner in which he has outlined this case, including his recitation of the law on undercover operations as outlined in R. v. Broyles, [1991] 3 S.C.R. 595, and R. v. Hebert, [1990] 2 S.C.R. 151.  I also agree with his view that a majority of the Court of Appeal erred in determining that an atmosphere of oppression is required to find that an appellant’s right to silence was violated by an undercover operation.   We depart however, in our application of the principles stated in Broyles and Hebert to a section of the conversation at issue in this appeal. 

 

2                                   Major J. has set out the facts of this case but for ease of reference, I reproduce the entire conversation between the accused and the undercover police officer with emphasis on the portion contested here:

 

 

Appellant:        That Lee is hot.

 

Jones:              What?

 

Appellant:        That Lee is hot.

 

Jones: Fuck.

 

Appellant:        Did you pass the money?

 

Jones:              Fuck.  The cops got it.

 

Appellant:        How much?

 


Jones: $48,000.00.

 

Appellant:        Ah, fuck.

 

Jones:              What happened?

 

Appellant:        The cops watching us.

 

Jones: Yeah.  They got my fingerprints on the dope.

 

Appellant:        Lee and me too.

 

Jones:              Why the fuck didn’t you give it to me out of the black car? Why did you drive away?

 

Appellant:        That  other guy.  That not my dope.  I just give it to Lee and drop him off.  We very careful.

 

Jones: The cops must have been following you guys.

 

Appellant:        No we were careful but Lee very hot. [Emphasis added.]

 

 

The appellant then asked about the $48,000 and the conversation continued:

 

 

Jones: Fuck man, they’re going to kill me for this man.

 

Appellant:        Where are you from?

 

Jones: From Slave Lake.

 

Appellant:        Whose money?

 

Jones:              Indians from up there.  Fuck man, my prints, Lee’s prints and your prints are on the shit.

 

Appellant:        Yeah.

 

The contested portion of the above conversation is underlined.  Major J. would admit these five lines into evidence.  I would exclude the statement by Mr. Jones and the response from the accused: “Jones: Yeah.  They got my fingerprints on the dope.  Appellant: Lee and me too.”  In my view, the police officer’s comment took over and directed the conversation to a new topic and amounted to elicitation pursuant to the principles set out by Iacobucci J. in Broyles.

 


3                                   In Broyles, Iacobucci J. considered whether the actions of the state agent acting undercover allowed the conversation to flow “naturally” or directed it to areas where the police needed information.  When looking at the flow of the conversation in question here, it is clear to me that the police officer’s statement about fingerprints raised for the first time the spectre of possession in a conversation which was not centred on that issue.  Prior to Mr. Jones’ comment, the dialogue between the two cell mates (albeit very brief) concerned the police confiscation of a bag of money which Mr. Jones (acting undercover) had in his possession.  The police officer’s statement about fingerprints actively directed the conversation towards the matter of possession.  The police wanted the accused to admit to possession.  Mr. Jones’ statement elicited the necessary agreement that indeed, the accused’s fingerprints were also on the drugs. 

 

4                                   Major J. asserts that this statement by Mr. Jones was not framed as a question or request for information and thus could not be described as inducing any particular response.  I disagree on this point of characterization.  Until Mr. Jones’ statement, the exchanges between the two men had been initiated by the accused and focussed on money.  Mr. Jones then took over the conversation and directed the conversation to possession, the crime which formed an integral part of the police investigation.  While the police officer’s comment was not grammatically framed as a question per se, the reasoning in Broyles makes it clear that substance must triumph over form. 

 


5                                   In concluding that the officer’s last comment in the exchange disputed here in effect sought out an admission by the accused, I wish to emphasize that I am not moving away from the principles in Broyles and Hebert set out by my colleague.  I am not suggesting that an undercover officer must act as a “listening post”.  Rather, in my view, the exclusion of the last part of the exchange is in keeping with the spirit of our jurisprudence.  I do not wish to handcuff the police nor abolish a legitimate tool of investigation.  However, we have established that in order to give substance to an accused’s right to silence, undercover operations must be circumspect.  In this case, the accused indicated that he wanted to speak to a lawyer and did not make any statements to the police.  The Crown argues that the accused did not actively invoke his right to silence and therefore, was not entitled to the same protections as one who expressly refuses to make a statement.   I disagree.  As I stated for the majority in R. v. Prosper, [1994] 3 S.C.R. 236, at p. 270, once an accused has indicated a desire to exercise his or her right to counsel, the state is required to “hold off” from eliciting incriminatory evidence until the accused has had a reasonable opportunity to contact a lawyer.  The principles set out in Hebert and Broyles then come into play.  The key is that the police may not elicit incriminatory statements.  In my view, the last statement about fingerprints made by the undercover police officer does not “flow” with the tide of the conversation as it unfolded in the cell block.  It amounts to elicitation and violates appellant’s s. 7  right to silence.  Therefore it and the response from the accused should be excluded pursuant to s. 24(2)  of the Canadian Charter of Rights and Freedoms .  As McLachlin J. held in Herbert, at pp. 188-89:

 

But where, as here, an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick practised by the authorities, and where the resultant statement is the only evidence against him, one must surely conclude that reception of the evidence would render the trial unfair.  The accused would be deprived of his presumption of innocence and would be placed in the position of having to take the stand if he wished to counter the damaging effect of the confession.  The accused’s conviction if obtained would rest almost entirely on his own evidence against himself, obtained by a trick in violation of the Charter .  

 

 

6                                   I would allow the appeal and direct that the conversation in question be admitted into evidence up to and including the question and answer “What happened?  The cops watching us”.   


 

The judgment of L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by

 

//Major J.//

 

7                                   Major J. -- The issue in this appeal is whether statements made by the appellant to an undercover police officer during a cell block interview were actively elicited by the police officer in violation of the appellant’s right to silence under s. 7  of the Canadian Charter of Rights and Freedoms .

 

I.                                  Facts

 

8                                   The appellant was arrested in connection with a cocaine deal involving the purchase of one kilogram of cocaine for approximately $48,000.  The transaction was negotiated by Corporal Jones, an undercover police officer.  The police intended to arrest the alleged drug dealers at the time of the purchase.  The “take-down” occurred at approximately 4:20 p.m. on March 4, 1994.  It went awry.

 

9                                   Some members of the undercover team, but not Jones, identified the appellant as the driver of a black car involved in the drug deal.  At around 4:35 p.m. that day, the appellant was stopped, detained, and arrested a short distance away from the scene of the “take-down” while driving a white Oldsmobile.  He was advised of his right to counsel.  He was then taken to the location of the “take-down”.

 


10                               In the meantime, at 4:32 p.m., the police pretended to arrest Jones at the scene of the take-down.  The appellant was placed in the back seat of a marked police vehicle with Jones.  They were taken to police headquarters.  There was no conversation between them while they were in the back seat of the vehicle.

 

11                               While Jones and the appellant were seated in the police vehicle, one of the arresting officers produced a bag containing money to Jones and asked how much money there was.  Jones indicated that there was between $48,000 and $50,000  from the sale of two show trucks.

 

12                               They arrived at police headquarters at approximately 5:00 p.m.  Jones was placed in an interview room in the Drug Control Unit, while the appellant was placed in a holding room in the strike force office and searched.  At approximately 5:41 p.m., the appellant was taken to a room with two phone books (white and yellow pages), a legal aid list and a telephone, but was unsuccessful in his attempts to contact his lawyer.  This was not disclosed by him to the police.  Nor was he asked about it.

 

13                                      Jones agreed with his fellow officers to arrange a cell block interview, and was placed in an interview room with the appellant at 6:20 p.m.  Jones sat on a chair approximately three feet from the appellant, hung his head and avoided eye contact.

 

14                It is common ground that, after a silence of approximately one minute, the appellant initiated the following conversation:

 

Appellant:    That Lee is hot.

 

Jones:          What?

 

Appellant:    That Lee is hot.

 

Jones:          Fuck.

 

Appellant:    Did you pass the money?


Jones:          Fuck.  The cops got it.

 

Appellant:    How much?

 

Jones:          $48,000.00.

 

Appellant:    Ah, fuck.

 

Jones:          What happened?

 

Appellant:    The cops watching us.

 

Jones:          Yeah. They got my fingerprints on the dope.

 

Appellant:    Lee and me too.

 

Jones:          Why the fuck didn’t you give it to me out of the black car?  Why did you drive away?

 

Appellant:    That other guy.  That not my dope.  I just give it to Lee and drop him off. We very careful.

 

Jones:          The cops must have been following you guys.

 

Appellant:    No we were careful but Lee very hot.

 

15                The appellant then asked about the $48,000.  The conversation continued:

 

Jones:          Fuck man, they’re going to kill me for this man.

 

Appellant:    Where are you from?

 

Jones:          From Slave Lake.

 

Appellant:    Whose money?

 

Jones:          Indians from up there.  Fuck man, my prints, Lee’s prints and your prints are on the shit.

 

Appellant:    Yeah.

 

16                The appellant turned his hands and looked at his fingers.  He stated:

 

It not my stuff.  It the other guy’s.  I just deliver with Lee.


17                The trial judge expressly adopted Jones’ version of the conversation, supra.  Nonetheless, in his ruling, after noting that he was not certain of the precise order in which matters were discussed by Jones and the appellant, the trial judge reproduced the following conversation, which as the underlined utterances indicate, varies from Jones’ version:

 

Appellant:    Lee is hot.

 

Jones:          What?

 

Appellant:    Lee is very hot.

 

Jones:          Fuck.

 

Appellant:    Did you pass the money?

 

Jones:          Fuck, the cops got it.

 

Appellant:    How much?

 

Jones:          $48,000. Ah, fuck, they’re going to kill me, man.

 

Appellant:    Where are you from?

 

Jones:          Slave Lake.

 

Appellant:    Whose money?

 

Jones:          Indian’s money, or money I got from Indians.

 

Jones:          What happened?

 

Appellant:    Cop watching us, man.

 

Jones:          They got my prints on the dope and yours and Lee’s too on the shit.

 

Appellant:    Yeah.

 

Jones:          Why the fuck didn’t you give it to me out of the black car?  Why did you drive away?

 

Appellant:    That the other guy.  That not my dope.  I just give to Lee and drop                         him off.  We very careful. [Emphasis added.]

 


18                The version of the conversation reproduced by the trial judge differs from the record in two respects.  First, the record is clear that Jones’ reference to his life being in danger due to the loss of the $48,000 did not take place until close to the end of the conversation, after Jones had asked the appellant “What happened?” and stated “Yeah. They got my fingerprints on the dope”.    Second, the same is true of Jones’ statement, “They got my prints on the dope and yours and Lee’s too on the shit”, which should not be confused with Jones’ earlier reference to his own fingerprints, not the appellant’s, being on the dope.

 

19                At the Court of Appeal, the parties agreed that the trial judge adopted Jones’ version of the conversation and that it was Jones’ version that should be adopted by that court in dealing with this appeal.  We, too, adopt that version which is reproduced at paras. 14-16 of this judgment.

 

20                Jones was removed from the interview room at 6:28 p.m.  The exchange between Jones and the appellant lasted seven minutes.

 

21                At 6:50 p.m., the appellant was again provided a telephone to make further attempts to reach counsel.  He was unsuccessful.  At 7:50 p.m.,  the appellant’s lawyer called police headquarters and spoke with him.

 


22                At trial, a voir dire was held to determine whether statements made by the appellant to Jones should be excluded pursuant to ss. 7 , 10 (b) and 24(2)  of the Charter .  The trial judge found that the conduct of the police breached both ss. 7  and 10 (b) and excluded the statements under s. 24(2) .  Without this evidence, the Crown took the position that it could not obtain a conviction and called no further evidence.  The appellant was acquitted.  On appeal, the majority of the Court of Appeal allowed the appeal and ordered a new trial.  Berger J.A. dissented in law on whether the appellant’s statements were actively elicited.  The appellant appeals to this Court as of right pursuant to s. 691(2) (a) of the Criminal Code, R.S.C., 1985, c. C-46 .

 

II.                 Relevant Statutory Provisions

 

23                Canadian Charter of Rights and Freedoms 

 

7.     Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

III.               Judicial History

 

A.        Court of Queen’s Bench of Alberta (Marshall J.) (voir dire)

 

24                The trial judge accepted the facts of the conversation as set out by Jones.  He then proceeded, following R. v. Broyles, [1991] 3 S.C.R. 595, to determine whether, considering all the circumstances of the exchange between the accused and the state agent, there was a causal link between the conduct of the state agent and the making of the statement by the accused.  In accordance with Broyles, the trial judge examined two sets of factors: the nature of the exchange between the accused and the state agent, and the nature of their relationship.

 


25                The trial judge noted that the first parts of the conversation were volunteered by the accused.  He concluded, however, that the question “What happened?” posed by Jones was clearly a question seeking information.  In his view, the question amounted to elicitation.  He also found that Jones’ reference to fingerprints on the dope was a statement which actively sought a response.  And Jones’ question, “Why the fuck didn’t you give it to me out of the black car?  Why did you drive away?” he found  a leading question which sought an answer, amounting to active elicitation.

 

26                Marshall J. held that the exchange between the accused and the undercover police officer was closer to an interrogation than an exchange in which the officer is merely playing the part of a fellow accused and adopting a passive listening role.

 

27                With respect to the second set of factors to be considered, the trial judge found that Jones’ reference to his now owing $48,000 to Indians in Slave Lake was intended to attract sympathy and in fact had that result.  He also found it significant that the appellant was from another culture and was in a situation he had not been in before.

 

28                In light of both sets of factors, Marshall J. concluded that there was a causal link between the conduct of Jones and the making of the appellant’s statement and that, therefore, the appellant’s s. 7  right to silence was violated.

 

B.         Alberta Court of Appeal (1998), 60 Alta. L.R. (3d) 13

 

(1) Veit J. (ad hoc) for the Majority

 

29                Veit J. stated that the sole issue in this appeal was whether the appellant’s statements to Jones were actively elicited by Jones in violation of the appellant’s rights under s. 7 .  After reviewing R. v. Hebert, [1990] 2 S.C.R. 151, and Broyles, she concluded that the correct test for admissibility of cell block conversations with state agents is:  “Did the agent of the state abstain from the functional equivalent of an interrogation?”


 

30                In Veit J.’s view, an “atmosphere of oppression” is implicit in the very meaning of the word “interrogation”.  Noting that there was no evidence of oppressive circumstances surrounding the conversation at issue in this appeal, and that the words used in the conversation did not reveal the close, persistent, cross questioning characteristic of an interrogation, she held that the conversation up to and including the appellant’s statement “Lee and me too” was admissible.

 

31                As to the remainder of the conversation (beginning with the questions “Why the fuck didn’t you give it to me out of the black car?  Why did you drive away?”), Veit J. assumed without deciding that it was objectionable and excluded it from that point on.

 

(2) Berger J.A. in Dissent

 

32                Berger J.A. observed that an agent of the state may actively elicit information even if engaged in the role-appropriate conversation of a planted cell mate, and disagreed with the majority that manipulative questioning must be persistent in order to amount to active elicitation.  A subtle, single question or comment may be far more effective than the proverbial brow-beating in undermining an accused’s free choice not to speak to the authorities.

 

33                In Berger J.A.’s view, the question “What happened?” in the behavioural context of two co-accused sitting in a cell constituted active elicitation for the purpose of gathering information helpful to the prosecution.  Similarly, the second intervention, “Yeah.  They got my fingerprints on the dope”, initiated the subject of inculpatory evidence and led the appellant to an area where Jones was clearly attempting to gather information.


 

34                Berger J.A. agreed with the majority that the exchange up to, but not including the words “What happened?” was admissible.  What followed, however, was, in his view, inadmissible.  He concluded that the trial judge properly excluded that portion of the conversation which was in issue in this appeal and would have dismissed the appeal.

 

IV.              Issue

 

35                The sole issue in this appeal as of right is whether statements made by the appellant to an undercover police officer during a cell block interview were actively elicited by the police officer in violation of the appellant’s s. 7  right to silence.  More specifically, the only question is whether the following part of the exchange between the appellant and the police officer should have been admitted into evidence:

 

Jones:          What happened?

 

Appellant:    The cops watching us.

 

Jones:          Yeah. They got my fingerprints on the dope.

 

Appellant:    Lee and me too.

 

V.                 Analysis

 

36                The determination of the issue in this appeal is found in the guidance and authority of Hebert and Broyles.  Like those cases, this appeal is concerned with the scope of the right to silence of a person who has been detained by the state:  Hebert, supra, at pp. 162-63; Broyles, supra, at p. 606.  No new law is involved.

 


37                We agree that the appeal should be dismissed, though with some variation of the majority reasons of the Court of Appeal.  We respectfully disagree with the majority of the Court of Appeal that an atmosphere of oppression (typically but not exclusively thought of as persistent questioning, a harsh tone of voice, or explicit psychological pressure on the part of the state agent) is required to ground a finding that a detainee’s right to silence was violated.  In this regard, it suffices to recall that this Court found a violation of the right to silence in both Hebert and Broyles, where there was no atmosphere of oppression.

 

38                The breadth with which McLachlin J. in Hebert defines the right to silence is inconsistent with the proposition that an atmosphere of oppression is required for its violation.  See pp. 181 and 186:

 

Charter  provisions related to the right to silence of a detained person under s. 7  suggest that the right must be interpreted in a manner which secures to the detained person the right to make a free and meaningful choice as to whether to speak to the authorities or to remain silent.

 

                                                                   . . .

 

The essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose -‑ the freedom to speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other.

 

39                At the same time, Hebert, at p. 183, carefully distinguishes its formulation of the right to silence from that which assumes an “absolute right to silence” in the accused, capable of being discharged only by waiver:

 


On that approach, all statements made by a suspect to the authorities after detention would be excluded unless the accused waived his right to silence.  Waiver, as defined in Clarkson v. The Queen, [1986] 1 S.C.R. 383, is a subjective concept dependent, among other things, on the accused's knowing that he is speaking to the authorities.  On this approach, all statements made by a person in detention which were not knowingly made to a police officer would be excluded because, absent knowledge that the suspect is speaking to a police officer, the Crown cannot establish waiver.  This would include statements made to undercover agents (regardless of whether the officer is merely passive or has elicited the statement) as well as conversations with fellow prisoners overheard by the police and statements overheard through mechanical listening devices on the wall.  There is nothing in the rules underpinning the s. 7  right to silence or other provisions of the Charter  that suggests that the scope of the right to silence should be extended this far. [Emphasis in original.]

 

40                In limiting the right to silence, McLachlin J., at pp. 184-85, formulated the following distinction:

 

[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.  When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence:  the suspect's rights are breached because he has been deprived of his choice.   However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police.   If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police. [Emphasis added.]

 

41                Hebert does not rule out the use of undercover police officers.  Its concern is not with subterfuge per se, but with subterfuge that, in actively eliciting information, violates the accused’s right to silence by depriving her of her choice whether to speak to the police.  Precisely because the detainee retains her freedom in that respect, not all of her speech can be immediately deemed involuntary merely by virtue of her being detained.  Hebert expressly allows for situations where, though speaking to an undercover officer, the detainee’s speech is voluntary, in the sense that she must be taken to have freely accepted the risk of her own actions.  No other view is consistent with the enshrinement of her right to choose whether to speak or to remain silent.

 


42                In Broyles, at p. 611, Iacobucci J. provided the following instruction with respect to the meaning of elicitation:

 

In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue.  These factors test the relationship between the state agent and the accused so as to answer this question: 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?  For convenience, I arrange these factors into two groups.  This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive.

 

The first set of factors concerns the nature of the exchange between the accused and the state agent.  Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done?  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.

 

The second set of factors concerns the nature of the relationship between the state agent and the accused.  Did the state agent exploit any special characteristics of the relationship to extract the statement?  Was there a relationship of trust between the state agent and the accused?  Was the accused obligated or vulnerable to the state agent?  Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?

 

43                At p. 613 of his reasons, he continued:

 

Turning to the first set of factors relating to the nature of the conversation, did Ritter [i.e. the state agent] allow the conversation to flow naturally, or did he direct the conversation to those areas where he knew the police needed information?

 


44                The Crown argued that the Hebert doctrine applies only where the accused has made a declaration that she does not wish to speak to the authorities.  Thus the Crown submitted that the Hebert doctrine is not applicable to this appeal because the appellant did not make such declaration.  We disagree.  The Crown’s submission confuses the facts in Hebert with the fundamental principle formulated in that case:  that the accused in Hebert happened to have declared that he did not wish to speak to the authorities does not mean that an assertion of the right to silence on the part of the accused is a condition precedent to the application of the Hebert doctrine.  It would be absurd to impose on the accused an obligation to speak in order to activate her right to silence.

 

45                In following the authority of Hebert and Broyles, we find nothing in the facts of this appeal to support the proposition that the exchange between the appellant and the undercover officer was the functional equivalent of an interrogation.  It is of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified, or lied, so long as the responses by the appellant were not actively elicited or the result of interrogation.  In a more perfect world, police officers may not have to resort to subterfuge, but equally, in that more perfect world, there would be no crime.  For the moment, in this space and time, the police can, within the limits imposed by law, engage in limited acts of subterfuge.  In our opinion, that is the case in this appeal.

 

46                As noted above, the two sets of factors outlined in Broyles pertain to the nature

of the exchange and the nature of the relationship between the state agent and the accused.  It is worth recalling that these factors are neither exhaustive nor dispositive.  They are rather guidelines provided to test the relationship between the state agent and the accused so as to determine whether there was a causal link between the conduct of the state agent and the making of the statement by the accused.

 

A.        The Nature of the Exchange

 


47                It was the appellant who initiated the brief exchange by a direct reference to the circumstances of his arrest.  His opening statement, “That Lee is hot”, broached the subject-matter of those circumstances, which provided the overall context of the exchange.  Thus it was the appellant alone who directed the conversation to an area where the police were seeking information.  He was as free to do that as he was to remain silent.

 

48                The police officer’s question, “What happened?”, cannot be said to have directed or re-directed the conversation to a sensitive area.  The officer’s “What happened?” picked up the flow and content of the conversation so naturally that it would not be inaccurate to say that it was itself elicited by the appellant’s “That Lee is hot”.  The officer did nothing more than continue the conversation about the arrest initiated by the appellant.  In such circumstances, the appellant cannot complain that, merely because it was a question, the officer’s “What happened?” (i.e., “How did we get arrested?” or “What went wrong?”) may be seen as some form of elicitation.  It is difficult to imagine a less intrusive response on the part of the officer, short of saying nothing or of actually confessing that he was an undercover agent.  The officer cannot be under such an obligation.

 

49                Similarly, the officer’s statement, “Yeah.  They got my fingerprints on the dope”, simply alluded to concerns that Jones would naturally have regarding the arrest.  The statement was entirely in keeping with the officer’s cell mate role and did not stray from the flow of the conversation about the arrest initiated by the appellant.  Nor did the statement request any information from the appellant or offer inducement of any kind for that information.

 


50                It was argued that the officer’s comments that they had his fingerprints on the dope directed the conversation into a new area of interest to the Crown -- possession of the drugs -- and that this amounted to impermissible elicitation.  This alone, however, does not establish impermissible elicitation.  Broyles, supra, at pp. 609-10, stated, “It is clear from the majority reasons in Hebert, supra, that statements volunteered by the suspect to the agent of the state will not infringe the suspect’s right to silence”.  The answer to the question of whether the statement was volunteered depends upon a variety of factors, particularly, the nature of the exchange and the nature of the relationship between the state agent and the accused at the time the statement is made (Broyles, supra).  When those factors are applied in this appeal, it is apparent that the officer’s comment introducing the subject of fingerprints and thus possible possession does not change the fact that the accused’s admissions were volunteered.

 

51                In accordance with Broyles, the undercover officer conducted his part of the conversation as someone in the role the appellant believed the officer to be playing would ordinarily have done.  In the circumstances of this case the conduct of the officer was not the functional equivalent of an interrogation.  The point is not that role-appropriateness by itself sanitizes the exchange, but that the undercover officer did not direct the conversation in any manner that prompted, coaxed or cajoled the appellant to respond.  The appellant’s response was not “caused” by the officer’s statement in the sense that the officer’s statement deprived the appellant of his choice whether to speak.  In responding to the officer’s statement, the appellant exercised his freedom to do so.

 

B.                 The Nature of the Relationship

 

52                There is nothing in evidence to support the proposition that there was a relationship of trust between the undercover officer and the appellant.  Nor was the appellant obligated or vulnerable to the undercover officer.  Nor can it be said that the undercover officer manipulated the appellant to bring about a mental state in which the appellant was more likely to talk.


 

53                In the view of the trial judge, Jones’ reference to his now owing $48,000 to Indians in Slave Lake was intended to attract sympathy for Jones and in fact had that result.  The trial judge found that the appellant’s sympathy for Jones affected the nature of the relationship between them.  However, as pointed out by the Court of Appeal, the trial judge’s finding was influenced by the fact that he got the details of the conversation backwards.  The record is clear that, in Jones’ version of the conversation, Jones does not indicate that he owed the $48,000 until close to the end of the conversation.  That is, Jones’ reference to his owing the money took place after the part of the conversation in issue in this appeal.  Accordingly, as the Court of Appeal noted, the appellant’s sympathy for Jones could not have affected the nature of the relationship at the time of the initial part of the conversation which is in issue here.

 

54                The relationship of “co-accused” is not in and of itself sufficient to meet the guidelines set out in Broyles.  This is not a case where the undercover officer cultivated a sustained relationship with the accused over time, such that the accused may be said to have spoken to the undercover officer in the reasonable expectation that his communications would not wind up in the hands of the police.

 

55                On the contrary, the facts indicate that the appellant and the officer did not know each other prior to the arrests.  In such circumstances, it is difficult, if not impossible, to suggest that the state agent exploited any special characteristics of his relationship with the appellant to extract the statement.  In fact, to speak of a “relationship” at all seems to exaggerate the circumstances.

 


56                 The appellant cannot complain that his statements wound up in the hands of the police any more than he could complain had the officer been a concurrently arrested co-accused who subsequently told the police what the appellant said.  The appellant chose to speak.  He was free to do that.

 

57                In the circumstances of this appeal there is no impermissible causal link between the undercover officer’s conduct and the statements made to him by the accused.  The statements were not actively elicited.  They were not obtained in violation of the appellant’s right to silence.

 

58                In affirming a detainee’s right to silence, Hebert and Broyles preserve and define an area of police investigation where undercover operations, including cell block interviews, are perfectly legitimate.  The undercover officer’s interventions in the exchange at issue in this appeal are so innocuous that to conclude that the appellant’s statements are inadmissible is effectively to abolish, contrary to Hebert and Broyles, that legitimate area of police investigation.  It would be tantamount to adopting either a “listening post” standard or an “absolute right to silence” standard, both of which were unambiguously rejected by this Court in those cases.

 

59                I would dismiss the appeal.

 

Appeal dismissed, Lamer C.J. dissenting.

 

Solicitors for the appellant:  Tarrabain and Company, Edmonton.

 

Solicitor for the respondent:  The Department of the Attorney General, Edmonton.

 

 

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