- 1 Introduction
- 2 Person in Authority
- 3 Improper Inducements (Threats or Promises)
- 4 Oppression
- 5 Operating Mind
- 6 Unfair Police Trickery ("Dirty Tricks" Doctrine)
- 7 Incomplete, Inaccurate or Non-recorded Statements
- 8 Procedure
- 9 Burden of Proof
- 10 Use of Statement
- 11 Case Digests
- 12 See Also
At common law, all statements made to a "person in authority" must be proven to be voluntary before it may be admissible. This is known as the "confessions rule". This finding must be made through a voir dire without a jury on a standard of proof beyond a reasonable doubt.
The primary purpose of the common law confessions rule to ensure the reliability of confessions. The use of interrogation techniques present a risk that a person will confess falsely. The rule is also to protect the right against self-crimination and ensure fairness.
The voluntariness of a statement is determined by considering the following factors: 
- threats or promises
- operating mind
- police trickery
The application of the confessions rule is contextual and requires taking into account all the circumstances. The degree of each factor present will be taken into account. For example, a low level inducement may vitiate voluntariness where the level of oppression from lack of sleep may be high.
The test for right to silence and voluntariness are functionally equivalent. A voluntary statement cannot violate the right to silence. 
A statement made to a person in authority is not inadmissible solely because the officer failed to give the proper cautions. This failure may be a factor in the voluntariness analysis, but admissibility rests solely on the question of voluntariness.
There is no rule requiring that police officers seek the consent to record the dialogue of any witness or accused that they chose to interview.
Voluntarienss must be proven when the statement is being admitted for the purpose of establishing an officer's reasonable suspicion to permit a screening demand.
Voluntariness need not be proven where the statement is being tendered for voice identification.
Volutnariness implies "an awareness about what is at stake in speaking to persons in authority, or declining to assist them".
Questions of ultimate truth, falsity and reliability of the statement are not to be determined in a voir dire on voluntariness. Instead, that is for the trial judge to determine after hearing the entirety of the trial evidence.
The presence or absence of a proper police caution is only a factor in voluntariness analysis and does not guarantee automatic exclusion or inclusion.
Where the police ask questions and obtain information from the accused regarding their name, address, and phone number while booking the accused, there is no requirement for proving voluntariness and no voir dire is needed.
Cross-examination of a Co-accused Exception
Defence counsel may use a prior statement to cross examine a co-accused who incriminates the accused even where the statement is not voluntary.
Criminal Offence Exception
When the statement itself is the offence, such as in an obstruction charge, uttering threats, etc, then there is no need to prove voluntariness of the statement.
The voluntariness rule derives its origin from the Ibrahim rule from the English common law, which excludes statements only where the police held out explicit threats or promises to the accused.
R v Singh 2007 SCC 48 (CanLII),  3 SCR 405 at para 29 per Charron J
R v Oickle, 2000 SCC 38 (CanLII) at paras 32 and 47 per Sopinka J
Singh, supra at para 21
- Oickle, supra
- Oickle, supra at paras 47, 68, 71
- Oickle, supra at para 71
- R v Singh, 2007 SCC 48 (CanLII),  3 SCR 405 at para 8
R v Hamadeh, 2011 ONSC 1241 (CanLII)
R v Boudreau, 1949 CanLII 26 (SCC),  SCR 262
R v Esposito 1985 CanLII 118 (ON CA), (1985), 53 O.R. (2d) 356 (C.A.)
R v KPLF, 2010 NSCA 45 (CanLII), 290 N.S.R. (2d) 387 at para 38 (“the issue of the caution should not be elevated to such an extent as to exclude a proper consideration of all of the relevant factors.”)
- R v Young, 2009 ONCA 891 (CanLII) at para 9
R v RTB, 2009 BCSC 581 (CanLII)
see also Screening Device
R v McGee et al., 2008 ONCJ 707 (CanLII)
see also Identity
R v Worrall,  O.J. No. 271 (ONSC) at para 106 (Sup. Ct.)
R v Roy,  O.J. No. 5541, at para 255
R v Fernandes, 2016 ONCA 774 (CanLII) at paras 39 to 41 per Hourigan JA
R v EB, [2011 ONCA 194 (CanLII), at para 88 (“the absence of the standard caution is only one factor to be considered in the voluntariness analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary”)
- R v Tran, 1999 BCCA 535 (CanLII) at para 20
- R v Logan, 1988 CanLII 150 (ON CA) appealed on other grounds to SCC
R v Stapleton, 1982 CanLII 3331 (ON CA), (1982) 66 CCC (2d) 231 (ONCA)
R v MM, 2009 CanLII 50761 (ONSC)
Ibrahim v The King,  A.C. 599 (P.C.), at p. 609 ("no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority")
See also DPP v Ping Lin  AC 588 at p. 606 for the English test
Ibrahim adopted in Canada in Prosko v The King 1922 CanLII 67 (SCC), (1922), 63 SCR 226
see further history in Oickle
Person in Authority
The confessions rule is no engaged until a statement has been made to a "person in authority".
"Persons in authority" include:
Statements made by an accused person to himself while in the interview room at a police station will be considered statements to a person in authority.
Generally, a person who is likely a witness for the Crown will not be deemed to be a person in authority.
A 911 phone operator may be a person in authority depending on whether something that the 911 operator communicated to the caller reasonably gave them a subjective belief that the operator was "part of the police apparatus". Not all situations will warrant an operator as being in a person in authority.
However, even where 911 operators are found not to be persons in authority in the circumstances, it will nonetheless be necessary to prove that the speaker had an operating mind.
- R v Matchim, 2011 NLTD 60 (CanLII)
- R v Mahmood, 2008 CanLII 56710 (ON SC)
- R v Belle, 2010 ONSC 1618 (CanLII)
- R v J.(D.), 2009 ONCJ 555 (CanLII)
- R v Osmar, 2007 ONCA 50 (CanLII)
- R v Mantley, 2013 NSCA 16 (CanLII) at para 19 to 42
- R v Harrison, 2007 CanLII 38395 (ON SC)
R v Ziegler, 2016 ABQB 150 (CanLII) at paras 115 to 119
R v Latham,  OJ No 4534 (CJ (Gen Div), Gordon J at para 16
R v Paquette,  OJ No 1277, Whalen J at paras 71 – 74
Latham, supra at para 18
R v Eliuk, 2002 ABCA 85 (CanLII) at para 6
Improper Inducements (Threats or Promises)
Statements are to be inadmissible where they are the product of a “fear of prejudice or hope of advantage”.
Offering "inducements" is a valid method of obtaining statements. The officer may convince the suspect that it is in his best interests to confess. Only "improper inducements" are prohibited. Those are inducements that "whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne".
A confession motivated by the possibility of earlier release or a lighter sentence, does not, on its own, result in exclusion. It follows that most detainees know that a confession will end their interrogation, so the motive will alwasy exist. Few confessions are motivated simply by remorse.
An inducement that came from somewhere other than a person in authority will not render the statement involuntary.
Quid Pro Quo
The presence of a quid pro quo between a person in authority and the accused is a major factor in determining whether the accused's will was overborne. A quid pro quo offer is "an inducement for the suspect to confess that raises the possibility that the suspect is confessing, not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator".
There must be a nexus between the threat or promise and the confession for it to be an improper inducement.
An inducement that is only the figment of the accused's imagination, the statement will be admissible.
"Supplying accurate factual information to an accused" does not amount to an improper inducement.
Valid forms of inducements include:
- spiritual or religious appeals
- polygraph results
- minimizing moral gravity of offence
- appealing to conscience or morality
Invalid forms of inducements include:
- any connection of statement to liberty
- quid pro quo for any type of service by police or prosecutor
- discuss effect of confession on possible penalties
- suggestions that a statement can assist in getting help for daughter
There must be a causal link between the threat/promise and the confession. Otherwise, the inducement is irrelevant.
- Oickle at para 49
- Oickle at para 57 R v Spencer, 2007 SCC 11 (CanLII) at para 13-15
- Oickle at para 57
Oickle at para 57
see also R v Henri, 2001 ABQB 290 (CanLII),  A.J. No. 462 (Q.B.)
R v Carpenter 2001 BCCA 31 (CanLII)
Oickle at para 56,57
R v Bakker 2003 BCSC 599 (CanLII) at paras 90, 95
R v Crockett 2002 BCCA 658 (CanLII) at para 28
R v Grouse 2004 NSCA 108 (CanLII)
R v Spencer at para 13-15 - regarding will being overborne
R v Fernandes, 2016 ONCA 772 (CanLII) at para 27 per Hourigan JA -- considered quid pro quo to be the "most important" factor to consider.
Fernandes at para 27
R v Heatley, 2015 BCCA 350 (CanLII) at para 6
Oickle, supra at para 56
Fernandes, supra at para 29
Oickle, supra at para 84
R v Whittle, 1994 CanLII 55 (SCC),  2 SCR 914
Fernandes, supra at para 30
R v Backhouse (2005), 2005 CanLII 4937 (ON CA), 195 O.A.C. 80 (C.A.)
R v Teske (2005), 2005 CanLII 31847 (ON CA), 202 O.A.C. 239 (C.A.)
- R v MacNeil (1995), 138 N.S.R. (2d) 117 (NSCA) leave to SCC denied
- R v McIntosh, 1999 CanLII 1403 (ON CA), (1999) 141 CCC (3d) 97 (Ont CA) leave to SCC denied
R v Speidel 2003 BCSC 1532 (CanLII)
- R v Crockett, 2002 BCCA 658 (CanLII)
- R v Backhouse, 2005 CanLII 4937 (ON CA) - officer offered to release him if he gave a good alibi. This was seens as a valid description of the situation not inducement.
- R c Bégin, 2002 CanLII 41203 (QC CA) - officer offered lenient sentence and protection. Ruled involuntary.
- R v Warren (1997) 117 CCC (3d) 418 (NWTCA)(*no link) - officer said confession would result in lesser offence charged and lighter sentence. Voluntary as inducements did not cause confession
- R v M.S.M., 2014 ONCA 441 (CanLII)
- e.g. Warren, supra - inducement did not cause confession
A statement will be rendered involuntary where "the conduct of a police officer or the circumstances of the detention are so oppressive as to raise a doubt whether the accused was able to make an independent choice to speak to the police or remain silent".
Consideration for this factor includes:
- aggressive and prolonged interrogations
- confrontation with false or fabricated evidence, including use of polygraph
- deprivations of food, water, clothing, warmth/cold, sleep, medical attention
An officer hinting at the possibility of a death penalty as well as suggesting the obligation of the accused to prove innocence can be oppressive.
Where the accused asserts his right to remain silent, the police are under no obligation to cease questioning.
In some circumstances, continued questioning by police where silence is asserted can be found to have had any meaningful choice whether to speak to police.
By itself, "inner compulsion, due to conscience or otherwise, cannot displace a finding of an operating mind".
R v Fernandes, 2016 ONCA 772 (CanLII) at para 33
- R v Paternak (1995), 101 CCC 3d 452 (ABCA), 1995 ABCA 356 (CanLII)
- R v Oickle,  2 SCR 3, 2000 SCC 38 (CanLII), at para 98
- Fernandes, supra at para 34
R v Hoilett, 1999 CanLII 3740 (ON CA) at paras 25 to 26
Oickle, supra at paras 59 to 62
- Oickle, supra at para 61, 98
- Oickle, supra at para 71
- R v Espadilla, 2005 BCSC 174 (CanLII)
R v Singh, 2007 SCC 48 (CanLII),  3 SCR 405 at para 53
Singh at para 53
R v Fitzgerald, 2009 BCSC 1599 (CanLII) per Williams J. - statement admissible due to persistent questioning and other inappropriate acts of police
R v Whittle, 1994 CanLII 55 (SCC),  2 SCR 914 per Sopkina J at para 55
The issue of operating mind asks, on the whole on the evidence, whether 1) the accused understood what he was saying and 2) the consequences of saying it to a person in authority. If so, he can found to have an “operating mind”. The level of awareness cannot go any further than that.
The first of the two questions, focuses on the reliability of the statement. The second, concerns the fairness of the process.
The judge must take into account an individual’s background. Not all persons have the same mental fortitude and are more easily influenced to a point of making a false confession. Cases have considered circumstances where accused are rendered in capable of voluntarily confessing, (eg. Ward mentioned in Oickle) such as where they undergo “complete emotional disintegration”.
The doctrine is not separate and apart from the rest of the confessions rule. 
Factors to consider:
- influence of drugs or alcohol
- mental health state
- state of shock
- under hypnosis
Cognitive impairments such as schizophrenia, intoxication, or other mental health conditions will not necessarily render a statement involuntary.
- Whittle 1994 CanLII 55 (SCC),  2 SCR 914, a p 936 (the standard “does not imply a higher degree of awareness…” than the standard proposed)
- R v Brothers, 2004 NLSCTD 202 (CanLII)
- Concerns of this is detailed at para 42 of Oickle
- see R v Horvath 1979 CanLII 16 (SCC) at p 400
- R v Reeves, 2011 BCSC 1513 (CanLII) at 63
R v Whittle - schizophrenic accused's statement was voluntary
R v Oldham (1970) 1 CCC (2d) 141 (BCCA)
R v McKenna,  SCR 660, 1961 CanLII 17 (SCC)
R v Richard, 1980 CanLII 460 (BC CA), (1980) 56 CCC (2d) 129 (BCCA)
R v Labbe, 2002 BCSC 996 (CanLII) appealed on other grounds
R v Legato, 2002 CanLII 41296 (QC CA), (2002) 172 CCC (3d) 415 (QCCA) - accused was on morphine at the time
R v Pavlovszky, 2005 NBCA 9 (CanLII)
R v Santinon 11 CCC (2d) 121 (BCCA) (*no link)
R v Nagotcha, 1980 CanLII 30 (SCC),  1 SCR 714
Unfair Police Trickery ("Dirty Tricks" Doctrine)
Trickery by police is allowed. Authorities sometimes must resort to tricks and deceit in dealing with shrewd and sophisticated criminals. The law does not permit, however, is "conduct on their part that shocks the community". (emph. added)
Police trickery is a distinct area of consideration from the other factors of voluntariness.
The purpose of considering trickery is to maintain "the integrity of the criminal justice system".
Conduct that shocks the community may not necessarily violate the right to silence or any other rule of voluntariness.
Even where the conduct does not shock the community, the use of deception is relevant to the voluntariness analysis.
Examples of typically proper trickery:
- exaggerate the accuracy of polygraph results
- lying about fingerprints and DNA evidence
- exploiting the accused's motivation to assist his girlfriend who was arrested without misleading him in any way as to how the investigation might unfold
Examples of improper trickery include:
- pretending to be a chaplain or legal aid lawyer
- using truth serum under the pretense that it is insulin
- pretending to turn off a tape recorder when taking a statement
There is less tolerance for trickery on youths since they are more gullible and inexperienced.
- R v Oickle,  2 SCR 3, 2000 SCC 38 (CanLII), at para 66 citing Rothman v The Queen, 1981 CanLII 23 (SCC),  1 SCR 640
- Oickle, supra at para 65
- Oickle, supra at para 65
- Oickle, supra at para 67
- Oickle, supra at para 91
- Oickle, supra at para 95, 97 - suggests that if confession came immediately after results, there may be an issue
R v Heatley, 2015 BCCA 350 (CanLII) at para 38
- Oickle, supra at para 67
- Oickle, supra at para 67
- R v Holt, 2012 BCSC 1121 (CanLII)
R v K et al, 2004 BCPC 210 (CanLII) at para 88
Undercover officers disguised as religious officials have been accepted as a valid form of police trickery.
- see R v Welsh, 2013 ONCA 190 (CanLII)
Incomplete, Inaccurate or Non-recorded Statements
However, "the accuracy and completeness of the record of the circumstances surrounding the making of the statement can relate to proof of voluntariness on the voir dire."
Video recording "can greatly assist the trier of fact in assessing [a] confession". They provide a means for the court to enforce safeguards, it evaluates interrogation methods and deters improper tactics.
However, the lack of recording can enhance concerns of voluntariness. Where the accused is in custody in a location equipped to record a statement but it was not used, the non-recorded statement is inherently suspect.
Where the statement was not recorded or only partially recorded, the statement may be excluded where the absence of a record results in the inability to determine if the statement was voluntary. Thus, situations where the summarizing notes are too short to capture the whole statement may raise an issue on voluntariness.
Similarly, statements that are non-video or audio recorded, it is not necessarily inadmissible. In all cases, the crown must prove there is a sufficient record of the interaction between the accused and police. However, where the recording facilities exist but are not used the statement may be "suspect". Thus, the judge must determine whether a sufficient substitute has been provided to prove voluntariness beyond a reasonable doubt.
Issues of the accuracy and authenticity of a statement is not an issue of the judge in the voir dire but rather the trier-of-fact in the trial itself. The issue is one of authenticity not admissibility. However, this does not mean all issues of "accuracy and completeness of record[s]". The "completeness, accuracy and reliability of the record" are relevant to the inquiry into the surrounding circumstances of the taking of the statement.
R v Oickle,  2 SCR 3, 2000 SCC 38 (CanLII), at para 46
R v Reeves, 2011 BCSC 1513 (CanLII) at para 40
R v Richards,  87 BCAC 2, 33 W.C.B. (2d) 39, 1997 CanLII 12470 (BCCA)at para 36
R v Moore-McFarlane and Bogel,  O.J. No. 4646 (C.A.), 2001 CanLII 6363 at para 64, 65 and 67
R v Ducharme, 2004 MBCA 29 (CanLII) leave to appeal to SCC refused
- Ducharme, ibid. at paras 26 to 47
R v Learning, 2010 ONSC 3816 (CanLII) at para 62
R v MacDonald–Pelerine, 2014 NSCA 6 at para 43
- Oickle, supra at para 46
R v MD, 2012 ONCA 841 (CanLII)
- Oickle, supra at para 46
- Reeves at 41
R v White 2003 CanLII 40837 (ON CA) at para 21
Moore-McFarlane, supra at paras 65-6
MD, supra at para 41
R v Belanger (1978), 40 CCC (2d) 335 at 345 (Ont. H.C.J.)(*no link)
Richards, supra at 33
- Ducharme, supra at para 42
- R v Lapointe, (1983) 9 CCC (3d) 366 (ONCA)(*no link) aff'd at 35 CCC (3d) 287(*no link)
- Moore-McFarlane, supra at para 67
The procedure for conducting a voir dire on voluntariness of a confession should proceed as follows:
- crown requests a voir dire
- jury is excluded, if present
- crown informs court of the purpose of the voir dire
- crown will call witnesses to give evidence on the treatment of the accused by police up to the statement.
- accused may choose to call witnesses
- judge decides whether the statements are voluntary
There is no rule against reviewing the entirety of a statement to determine voluntariness.
Where the confession contains prejudicial information such as references to other criminal acts, it may be edited. Where the meaning of the statement is changed by any editing then the confession should be inadmissible.
If the accused testifies during the voir dire, the questions must be limited the the circumstances of the taking the statement. The Crown may ask whether the statement was true.
A ruling rendering the confession inadmissible by a prelminary inquiry does not bind the trial judge from reconsidering the issue anew.
A statement proven voluntary that is first tendered by the Crown during cross examination may be admitted for the truth of its contents.
- Gibson, "Criminal Evidence, Practice & Procedure" 18(B)
- R v Grey, 2013 BCCA 232 (CanLII) at para 41
- R v Grey at para 41
- R v Stringer, 1992 CanLII 2775 (NL CA), (1992) 69 CCC (3d) 535 (NLCA) ("There is no law that precludes this and, in some cases, it is necessary to read the statement before making such a ruling.")
- R v Kanester (1966), 4 CCC 231 (BCCA)(*no link)
- R v Banwait, 2010 ONCA 869 (CanLII)
R v Turpin, 2005 BCSC 475 (CanLII), at para 12
Burden of Proof
This Crown must prove voluntariness beyond a reasonable doubt in a voir dire. This is true even during a preliminary inquiry. The Crown is required to lead evidence detailing the surrounding circumstances leading up to the statement. A failure to set out a sufficient record of the interaction between the accused and police may result in the statement being involuntary.
There is no obligation of the part of the Crown to call every police officer who was present during any interaction with the accused.
Ordinarily the crown should call "all persons in authority who have contact with the accused person while in custody prior to the taking of his statement". This does not include persons who only pass on information unless their evidence bears on the voluntariness of the statement.
A person in authority who is sufficiently remote from the taking of the statement should not necessarily be required to testify.
However, the Crown should provide some explanation that the officers who did not testify did not have a direct involvement with the taking of a statement.
A statement will not be rendered inadmissible because there is a "mere possibility or conjecture of an earlier conversation in which threats or promises may have been made" by a person who did not testify.
I do not think there is a rule of law which requires rejection of a statement because of the mere possibility or conjecture of an earlier conversation in which threats or promises may have been made
R v Moore-McFarlane,  O.J. No. 4646 (C.A.), 2001 CanLII 6363 at para 65 and 67
R v Ahmed,  O.J. No. 4597 (C.A.), 2002 CanLII 695 at para 22
R v Pickett (1975), 28 CCC (2d) 297, 31 C.R.N.S. 239 (Ont. C.A.)(*no link)
R v Sankey, 1927 CanLII 43 (SCC),  SCR 436
R v Guilbride, 2003 BCPC 261 (CanLII) at paras 48-50
R v Malik, 2002 BCSC 362 (CanLII),  BCJ No 3222 (BCSC)
Moore-McFarlane, supra at para 70
R v Holmes, 2002 CanLII 45114 (ON CA), (2002) 169 CCC (3d) 344 (ONCA) - crown failed to call evidence of 16 hour wait period in custody
See also, R v Jimmy John, 2007 ABPC 125 (CanLII) - failed to call an officer who was present
R v Petri, 2003 MBCA 1 (CanLII)
R v Koszulap (1974), 20 CCC (2d) 193 (Ont. C.A.)(*no link) at p. 194, 197-198
R v Genaille, 1997 CanLII 4333 (MB CA) leave refused - failure to call sherriff's who detained accused prior to statement. statement found voluntary
R v Guilbride - statement taken in police officer's note books conflicted
R v Garfield (1974) 21 CCC (2d) 449 (ONCA)(*no link) at p. 457 ("The appellant's position ... is that the prosecution is obliged to call ... every witness who had anything to do with an accused who makes a confession, from the moment of his first contact with the police until the statement has been given. In my opinion, the proposition, stated in those terms, is too broad.")
R v Settee, 1974 CanLII 971 (SK CA), (1974), 22 CCC (2d) 193, pp. 206-207 (SKCA)
R v Menezes, 2001 CanLII 28426 (ON SC) at para 19 ("There is no absolute rule that every person in authority irrespective of the degree of contact with the accused need be called on a confessional voir dire.") c.f. R v Thiffault  SCR 509, 1933 CanLII 52 (SCC)
R v Woodward (1975), 23 CCC (2d) 508 (Ont. C.A.)(*no link)
R v Hatfield (1984), 62 NSR (2d) 151(*no link)
Hatfield elaborated in R v G.A.J., (1993), 120 NSR (2d) 432 (NSCA)(*no link) ("a person who simply receives and passes the fact of a telephone call unless that person had evidence that bears upon the voluntariness of the statement of the appellant or his understanding of or the exercise of his constitutional right".)
R v Socobasin, 1996 CanLII 5271 (NS CA)
R v Menezes, 2001 CanLII 28426 (ON SC) at para 19 ("A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct.")
- R v Dinardo, (1981), 61 CCC (2d) 52(*no link) per Borins C.C.J.
- R v Brooks, 1986 CanLII 1168 (BC CA), (1986) 28 CCC (3d) 441 (BCCA)
- R v Chow, (1978) 43 CCC (2d) 215 (BCCA)(*no link) at para 16
Use of Statement
There is some conflict between different jurisdictions over whether an accused statement can be used for the truth of its contents, or simply for impeaching credibility, on cross-examination when the accused is not willing to adopt the statement.