“Interrogators often use honey, not vinegar, in pursuit of the truth”: Resistance, the Constitutional Right to Silence and Judicial Responses to Cell-Plant Operations

Abstract

Police officers employ numerous tactics to elicit incriminating statements from an accused. For instance, law enforcement officials will sometimes insert undercover police officers into a detention cell to procure evidence – cell-plant operations. During the 1990s, the Supreme Court of Canada held that where undercover state agents actively elicit incriminating statements from an accused while in detention, such conduct violates the latter’s right to silence situated in section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). Remaining silent is a legitimate way to resist the power of the state when it conducts investigations. Police officers undermine this right and ability to resist when dispatching undercover officers in this manner, since an accused is unaware that they are speaking to state agents. However, an accused person with the assistance of their lawyer(s) may further resist the prosecution’s intended use of these incriminating statements through litigation – specifically, applications to exclude evidence under the Charter. While the Court has not considered cell-plant cases since 1999, Canadian trial courts at the superior court level have developed the right to silence jurisprudence concerning cell-plant cases. In addition, the Supreme Court of New Zealand has adopted the legal tests formulated by its Canadian counterpart. This article examines this jurisprudence, revealing how some decision-makers are showing sensitivity to the spatial context in which these operations occur. The case law also exposes how undercover officers may impact their exchanges with accused persons by building temporary and situational relationships with them. This is despite the lack of a prior relationship between the accused and undercover agent(s). In turn, this raises concerns about whether state actors have actively elicited incriminating statements from an accused. The jurisprudence also highlights how undercover officers are engaging in the functional equivalent of an interrogation despite the Supreme Court of Canada’s decisions in the 1990s admonishing against these tactics. An examination of this jurisprudence provides tools to challenge prosecution attempts to use cell-plant statements in future cases.