Friday, June 18, 2021
Adelina Iftene (Schulich School of Law, Dalhousie University) has posted Mr. Big: The Undercover Breach of the Right against Self-Incrimination (Perspectives on Evidentiary Privileges (2019)) on SSRN. Here is the abstract:
At common law, the privilege against self-incrimination protects the accused solely against compelled testimony in formal proceedings. Under the Canadian Charter of Rights and Freedoms,1 the privilege received constitutional protection2 and a pre-trial right against self-incrimination was subsequently created. The Supreme Court of Canada (SCC) stated in the early 1990s that the principle against self-incrimination is a principle of fundamental justice under s. 7,3 “perhaps the single, most important organizing principle of criminal justice”.4 This allowed for the protection of the accused against compelled confessions outside of the narrow context of formal proceedings.
Despite the significant developments of the protection against self incrimination, limitations to its application remain.5 The present chapter will address one of these limits: the exclusion of individuals subjected to Mr. Big undercover operations from the protection of the right against self incrimination under s. 7, on the basis that its application is limited to confessions obtained while the individual was in state detention.6 In order to assess whether a legal protection should apply to a certain situation, one ought to look at the rationales for which the protection exists and how that pairs with the situations at issue.7 I will argue that, despite the suspect not being in physical state detention, the very basis on which Mr. Big operations function violates all rationales behind the right against self-incrimination.