Uprooting the Cell Plant: Comparing United States and Canadian Constitutional Approaches to Surreptitious Interrogations in the Detention Context

60 Pages Posted: 1 Apr 2009 Last revised: 9 Nov 2014

See all articles by Amar Khoday

Amar Khoday

University of Manitoba - Faculty of Law

Date Written: March 30, 2009

Abstract

This article examines judicial approaches to cell-plant interrogations in Canada and the United States. These are surreptitious interrogations whereby the police inject an undercover state agent into the detention environment with the goal of eliciting inculpatory statements from an accused. The article analyzes and compares the strengths and weaknesses of the applicable legal tests emanating from the right to silence found in section 7 of the Canadian Charter of Rights and Freedoms and the Sixth Amendment right to counsel of the U.S. Bill of Rights. Although in both countries, an accused may seek to have their incriminating statements excluded from evidence where they successfully persuade the court that such statements were elicited by an undercover state agent, police have managed to exploit loopholes currently embedded within the current legal tests. This has consequently led to the admission of incriminating statements and subsequent convictions thus undermining the importance of the relevant constitutional protections. Through a comparative study, this article proposes how to strengthen the current legal tests by closing the loopholes which permit state actors to undermine constitutional protections afforded to criminal defendants.

Keywords: Canadian Charter of Rights and Freedoms, U.S. Bill of Rights, right to counsel, right to silence, surreptitious interrogations, trickery, cell-plant interrogations, confessions, evidence, criminal procedure, section 7, Sixth Amendment

JEL Classification: K14

Suggested Citation

Khoday, Amar, Uprooting the Cell Plant: Comparing United States and Canadian Constitutional Approaches to Surreptitious Interrogations in the Detention Context (March 30, 2009). (2009) 31:1 Western New England Law Review 39, Available at SSRN: https://ssrn.com/abstract=1370318

Amar Khoday (Contact Author)

University of Manitoba - Faculty of Law ( email )

224 Dysart Rd.
University of Manitoba Faculty of Law
Winnipeg, Manitoba R3T 2N2
Canada

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