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Tricks of the trade


February 13, 2014
By Gord MacKinnon

by Gord MacKinnon

– R. vs Rothman (1981) SCR.

The above comment is an excellent illustration of the wisdom of our Canadian justice system. It is easy to be cynical when the bench hands down a bizarre decision but the reality is that, more often than not, they do get it right.

Our judges, particularly at the Supreme Court level, have generally handed down fair and well-reasoned guidelines for police and other investigators when it comes to detecting and apprehending crime.

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A good example of this is <R. vs “Oickle” (2000) SCC,> where the high court provided police with a number of guidelines and upheld their right to be circumspect in an interview provided certain “lines” were not crossed. As noted in – tricks and other forms of deceit by police are sometimes necessary.

This is not to say that trickery and deceit are a normal step in any interview or interrogation; they should be the exception rather than the rule. Almost all investigative interviews are geared towards getting truthful information from a subject through a series of questions and answers.

In teaching interviewing I often get strange looks from police officers when I start by saying that “We don’t go into an interview room with the mindset that we are going to get a confession. We are merely there to elicit truthful information.”

There are times, however, when the use of what I call “verbal sleight of hand” is called for and the Supreme Court has so far given its approval, albeit within some fairly reasonable and applicable guidelines.

One of those guidelines has come to be known as the “community shock test.” It is, quite simply, a subjective test by the court as to whether the tactic police employed would shock the community at large.

The second part of this guideline is, again subjectively, asking if the administration of justice would fall into “disrepute” if the court allowed the tactic.

The court has to weight both guidelines when deciding if a tactic was reasonable in the circumstances and if trickery and deceit may be deemed acceptable in one case and not in another. For example, lying to someone like Karla Homolka or using a skilful ruse to get her to tell you about the tapes hidden in the potlights would likely not shock many people. Disallowing the found tapes would be more likely to bring the administration of justice into disrepute.

On the other hand, using similar tactics against a single mother of three who stole small amounts of money to feed her children would likely land you on the front pages of the Toronto dailies!

It would seem that investigative interviewers must weigh the seriousness of the crime being investigated when deciding whether to use trickery or deceit. Using these tactics involves extra planning, props and, in some cases, assistance from other investigators. They also require that the investigator be comfortable in using deception and “selling” it in a way that the interviewee will believe. This is not for the faint of heart. If you are not comfortable in doing this, then – don’t.

Most good interrogators – especially those who investigate major crime – should be prepared to conduct an aggressive interview and use any and all means deemed acceptable by the courts to gather information. “Persistent” and “aggressive” interviews have been ruled okay but not “oppressive” interviews – where a person feels they have no “means of escape” and MUST give in to the questioner.

In the end it all comes down to an accused’s ability to ” freely choose” whether to provide information. This becomes the litmus test for all courts. “Did the subject have the freedom to choose whether to answer the question?”

Lord knows, they don’t have to. They can sit mute and say nothing BUT if they answer the question, then all bets are off! This brings us to <R. vs. Singh” (2007) SCC.>

Singh was a good suspect in a shooting outside a nightclub and consistently asserted during the interrogation that he did not wish to answer questions on the advice of his lawyer. Police were persistent but not oppressive – some would say relentless – in their interview. They continually recognized his objections to answer questions and agreed that he did not have to say anything.

When they showed him a video capture from a security camera outside a night club, he made only one comment – that he was the guy in the ball hat. This, coupled with other eyewitness evidence, lead to his conviction.

He appealed all the way to Canada’s highest court – and lost!

Basically what we take away from the case is that the accused (or suspect) is under no obligation to answer police questions BUT police are under no obligation to stop asking them even when a person asserts that they do not want to answer.

The courts have taken a sensible view that police can tenaciously conduct enquiries as long as their questioning does not become oppressive. This is to say – a person who is suspected of a crime cannot merely deflect police by refusing to answer questions – and police, if they are able to, may use means of persuasion to bring the suspect into a co-operative state where they are willing to answer certain questions.

The courts have given police some sensible leeway to interview witnesses, persons of interest and suspects and have allowed trickery as long as it is not “dirty” and passes the community shock test.

What tricks are okay? How persistent is too persistent? When does persuasion become oppressive?

Wayne Vanderlaan and I will be discussing these questions and much more during our and seminars April 29 and 30 at the We will share what works and what does not in the interview room.

You may be surprised to learn that a simple turn of phrase or even a single word can mean the difference between courts allowing information or throwing it out.