Admissibility of Evidence Gathered from a Suspect

Henry Waldock
2008--06-03

The "right to silence" means that suspects can not be compelled to provide evidence against themselves.  This has long been a part of the Common Law.

The Charter restricts police further, particularly during the period that a suspect is detained, but has not exercised or waived his right to counsel.

The General Rule

	Encounter	Detention pre-counsel	Detention post-counsel
Observe	Words Actions	Words Actions	Words Actions
Elicit	Words Actions Exhibits	Words Actions Exhibits	Words Actions Exhibits
Compel	Words Actions Exhibits	Words Actions Exhibits	Words Actions Exhibits

In the absence of any lawful authority, a police officer may not compel anyone to give evidence that assists an investigation.  Anything that a police officer merely observes in the course of his or her duties is admissible evidence. 

After an arrest or detention, the officer may not "elicit" evidence until the suspect has exercised or waived access to counsel.  "Eliciting" evidence is where the officer takes an active role in causing the suspect to provide information.  Asking a question, or causing the suspect to perform sobriety tests is "eliciting".

Exceptions to the General Rule

Some exceptions to this general rule appear below.  Explanations for them are hyper-linked.

	Encounter	Detention pre-counsel	Detention post-counsel
Observe	Words Actions Exhibits	Words Actions	Words Actions Exhibits
Elicit	Words Actions Exhibits	Words Driver - sobriety questions Actions Driver - sobriety tests Exhibits	Words Actions Exhibits
Compel	Words Border crossing - questions Actions Riot - disperse Exhibits	Words Driver - identification Actions Driver - RSD Exhibits Weapons search for officer safety Exhibit search incidental to arrest Warrant - residential search	Words Actions Driver - breath/blood analysis Exhibits Evidence search - incident to arrest DNA warrant ICA - fingerprints

Elicited Words or Actions

If the suspect told you things relevant to the offence, then the court will require proof that the suspect spoke them "voluntarily".  For more information on this topic, see this summary, or this more detailed paper.

If you persuade the suspect to perform an action, such as a sobriety test, it too must be done "voluntarily".  The suspect must know that s/he can refuse.

Border crossing - questions

Routine questioning by a customs officer at a border crossing is not really a detention; evidence obtained from those questions is generally admissible.  Jones (2006 Ont C.A.)

Riot - disperse

Section 67 of the Criminal Code authorizes you to read the "riot act" compelling people to disperse.  Thirty minutes later, you can start arresting people.  s.68.

Driver - sobriety questions & tests and RSD

The evidence you elicit from a detained driver who has neither accessed counsel nor waived that right is admissible in an impaired driving trial only for the purpose of determining whether you had reasonable grounds to make a breath or blood demand.  R. v. Orbanski; R. v. Elias 2006 SCC 37.  R. v. Coutts (1999 Ont C.A.)

Suppose you ask this detained driver "Have you been drinking?, and he replies "I'm completely drunk".  At the trial of this matter, the court will use the response to determine that your breath demand was proper.  But when deciding whether the accused was impaired by alcohol, the judge will ignore this evidence.

Similarly, such a detained driver who fails sobriety tests or an RSD provides only evidence for the breath demand.

Only after the detained driver exercises or waives access to counsel do his inculpatory remarks and failed tests become admissible for proof of the driver's intoxication.

Therefore, after access to counsel, you may wish to investigate these matters again.  Of course, you can not demand a second breath sample into an RSD.  (R. v. Woods 2005 SCC 42)  Nor can you compel the suspect to answer questions or perform sobriety tests.  But you can persuade the suspect to provide answers, actions or breath again.

However, the observations you make of the detained driver's balance, manner of speech, emotions and coordination while the driver is dealing with other matters are all admissible for proof of impairment.  R. v. Townsend, 2008 ABCA 44.

Can you ask a suspect to blow in your face so that you can detect the presence of alcohol? Some judges now limit the "elicitation" reasoning to questions, sobriety tests and RSDs. They say that you can not ask the suspect to blow in your face because it is the taking of a bodily sample, which goes beyond the road safety powers which allow you to elicit evidence for the purposes of establishing grounds to make a demand. R. v. Weintz, 2007 BCSC 915

Driver - identification

Provincial motor vehicle / highway legislation authorizes a police officer to compel a drivers to stop and identify themselves.  The identity you obtain is admissible at a criminal trial. (??? CASES)

Weapons search for officer safety

When detaining risky people, you may search the suspects for weapons, and any evidence of criminal activity that you find is admissible.  R. v. Mann, 2004 SCC 52.

However, this does not permit you to search for evidence.  The police officer who searched Mr Mann felt something soft in his pocket, which turned out to be a baggie of drugs.  The evidence was excluded because the soft object posed the police officer no danger.

The purpose of this search is to protect police officers and the people around them from harm while police do their work.

Warrant - residential search

Although a search of a residence may proceed without providing the people found in it with counsel  s.10(b) obliges you to provide detained people with their rights "forthwith".  Failing to give them access promptly can lead to exclusion of evidence.  Luu & Ms Tran 2006 BCCA 73.

Exhibits "discarded" during detention

What a suspect abandons, you may seize.  The theory is that that the suspect not only abandoned the object, but also his privacy in it.

A prisoner has no control over his privacy.  When a prisoner discards an object, he does not necessarily abandon his privacy in it.  Seizing "abandoned" property from a prisoner is really the same as seizing compelled evidence from a prisoner.  Only when the prisoner has control over his privacy in an object, and chooses not to protect his privacy can it be said that the prisoner "abandoned" his privacy in the property.

For example Mr Nguyen (2002 Ont CA), a prisoner, threw some gum in the garbage.  Police officers seized it for the DNA sample.  The court found that the accused did not actually "abandon" his privacy in the gum.

Driver - breath/blood analysis

Section 254 of the Criminal Code authorizes you to compel the accused to take this evidence, and s.258 makes the results of analyses of them admissible.  You don't need consent; but you don't have authority to use force to take them.

Evidence search incident to arrest

After an arrest, you may search the prisoner and his vicinity for evidence of the offence for which you arrested, as well as for weapons.  Cloutier v. Langlois 1990 SCC; R. v. Caslake (1998 SCC).  As long as you had reasonable and probable grounds to believe that the prisoner committed the offence, you need only some articulable reason to believe that there may be evidence of the offence on or near the person in order to search.

As with residential searches, you are not obliged to give access to counsel before searching, but unnecessarily delaying access to counsel may lead to exclusion of evidence.  (R. v. Lewis 2007 NSCA 2)

DNA warrant

Section 487.07 appears to authorize a peace officer to use "as much force as is necessary for the taking of the samples", subject to the various conditions of the warrant, and of sections 487.06 and 487.07.  The accused must have access to counsel before these samples are taken.

Identification of Criminals Act

Section 2 of the Identification of Criminals Act authorizes you to take fingerprints from people charged with indictable offences, and to use such force as is necessary.