Is it permissible for an undercover police officer to pose as a religious adviser to induce a suspect to disclose information about a crime the officer is investigating? Not always, but sometimes it is, says the Court of Appeal for Ontario in a decision released last week, R. v. Welsh, 2013 ONCA 190.
In that case, the investigation of a brutal murder involved a police officer posing as an “Obeahman,” the practitioner of Obeah, a system of beliefs that “centres on mysticism and spiritualism and is commonly practiced throughout the Caribbean and by those of Caribbean descent, including many Caribbean Canadians. It … defines the characteristics of the supernatural world and its relationship to humankind” (par. 26). In particular, “Obeah is used as a bridge between the natural and the spirit worlds, and part of the work of an Obeah practitioner is to try to protect supplicants who believe that an evil spirit is targeting them” (par. 27).
Using props, ploys, and subterfuge, the pretended Obeahman managed to persuade the suspects of his investigation that he would be able to protect them from problems with the police and the criminal justice system, which the murder victim’s spirit would otherwise create. But, he told them, in order to do this he needed to know how that spirit came to be―and so incited them to disclose information about the murder which eventually proved significant in securing their convictions.
Before the trial, the accused moved to suppress the false Obeahman’s testimony. They argued that they freedom of religion and equality rights had been infringed, that the statements they made to the man who they believed was an Obeahman were privileged at common law, and that their collection was a “dirty trick” which, if permitted, would bring the administration of justice into disrepute. The trial judge rejected these submissions, and they were among the grounds of appeal (the only one which I discuss here).
On the issue of the violation of freedom of religion, after some discussion of whether the appellants were actually sincere believers in Obeah (one of them was not, but another was), the Court held that the conduct of the police did not amount to an infringement of religious liberty. Although the undercover officer encouraged the appellants in their beliefs, he did not compel them (nor did he have any power to do so). Nor did he in any way prevent them from acting on any religious beliefs. Perhaps most importantly,
there is no evidence that either appellant communicated with [the pretended Obeahman] Leon to satisfy or fulfill some spiritual need or purpose. This situation is distinguishable from the hypothetical of a police officer posing as a priest and pretending to take a religiously motivated confession from a suspect. In that case, the communication would be religiously motivated and made to satisfy a spiritual need or purpose. … [T]he lack of a formal practice of confession in Obeah is not determinative … The focus is not on formal distinctions of that kind but rather on whether a religious purpose motivates the communication. The situation of a suspect who thinks he is speaking to a religious or spiritual figure for spiritual counselling or guidance is very different from that of a suspect who seeks assistance in thwarting the authorities. (Par. 70)
The Court made short work of the appellants’ equality argument, holding that they had been targeted because they were suspects in a criminal investigation, not because of their race or unusual religious beliefs. Although there was evidence that some of the police officers involved in the investigation did not regard Obeah as a genuine religion, their views were not material, since the trial judge’s decision was not founded on them (and indeed rejected them).
The Court also rejected the appellants’ claim that their communications with the Obeahman attracted common law privilege (in the way a confession to a priest would). Whether or not they had an expectation that these communications would remain confidential, the crucial fact is that their purpose was not to seek pastoral guidance but to obtain help in evading justice. Such communications deserve no protection from society and are not privileged.
Finally, the Court denied that the conduct of the police fell into the category of “dirty tricks” that bring the administration of justice into disrepute. Justice Lamer (as he then was), who first articulated this idea in a concurring opinion in Rothman v. R.,  1 S.C.R. 640, suggested “a police officer pretend[ing] to be a lock-up chaplain and hear[ing] a suspect’s confession is conduct that shocks the community,” (p. 697) making the resulting evidence inadmissible. But despite the superficial similarity, this case is not identical to that scenario. Once again, the purpose of the appellants’ interaction with the alleged Obeahman is crucial:
Unlike the priest-penitent example, and quite apart from any distinction drawn on formal differences between the confessional and merely confiding in a religious adviser, the appellants did not communicate with [the Obeahman] to fulfill a religious purpose or spiritual need. They were induced to make incriminating statements to [the Obeahman] in the hope that he would use his powers to thwart the police and the justice system and to allow them to escape prosecution for a serious crime.
I think this is a sensible decision. Religious freedom always worries not only its detractors but even its defenders because it seems to involve an idea that those who claim it as justification for their actions seek to become “a law unto themselves,” and not be bound by the law of the state, which applies to their fellow citizens. These fears are not infrequently overblown, but here, the appellants quite clearly sought to invoke their faith to shield them from the consequences of perfectly secular, and utterly reprehensible, acts. No theory of religious freedom will let a believer get away with murder.