Interrogations-and-Confessions-Handbook

CHAPTER 22
Canadian and Israeli Cases
The cases discussed so far in this book almost exclusively fall within the context
of police custodial interrogation. Interrogations do take place in other
settings and may involve different agencies, including undercover police officers
and the security services. The two cases presented in this chapter involve
confessions being coerced in specialized settings; first, during a lengthy police
undercover operation by the Canadian Police, and second, by the Israeli
General Security Service (GSS) in their fight against terrorism. The techniques
used are different to those typically found during custodial interrogation,
and as we shall see, concerns have been raised about their legality.
The two cases highlight problems with the use of the term ‘voluntariness’ to
decide on the admissibility of confession evidence obtained outside custodial
interrogation.
A CANADIAN CASE OF NON-CUSTODIAL INTERROGATION
When the police anticipate problems in obtaining confessions during custodial
interrogation they may resort to undercover activities, which may take different
forms. Undercover officers may pose as a suspect or criminal and be placed
in a prison cell with the accused (Rothman v. The Queen [1981] 59 C.C.C. (2d)
30 (S.C.C.)), portray themselves as members of a criminal organization (R. v.
French [1998] 98 B.C.A.C.265 (B.C.C.A.)) or violent criminals (R. v. Roberts
[1997] 90 B.C.A.C.213 (B.C.C.A.)) or use a promise of sex and a loving relationship
as an inducement to confess (R. v. Stagg, Central Criminal Court;
14 September 1994).
The Canadian rules that apply to in- and out-of-custody situations are so
markedly different as to give rise to what some think are anomalous consequences.
It has traditionally been the rule in Britain and Canada that custody
interrogations were covered by the Ibrahim rule (Ibrahim v The Queen
[1914] A.C. 599), assuming that the police were identifiable as police officers.
In Canada, undercover officers may pose as a suspect or criminal, although
the Canadian Constitution puts certain limitations upon what the police may
do. Once a person has asserted that he or she wishes to contact counsel, the
police are prohibited from using the accused’s custodial status, coupled with
an undercover agent, to subvert the person’s expressed right to remain silent