Voluntariness

This page was last substantively updated or reviewed January 2019. (Rev. # 96613)

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Introduction

At common law, all statements made to a "person in authority" must be proven to be voluntary before they may be admissible at trial. 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.

Purpose Behind the Rule

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.

Voluntariness goes beyond being a rule of admission and relates closely to the right to silence, the right to a fair trial, and the integrity of the process. It is a "concept designed to limit the scope of police investigative techniques" and to uphold the idea that the system requires the Crown to find guilt without the assistance of the accused.

The rule recognizes that innocent people do, at times, confess to crimes.

The rule is also to protect the right against self-crimination and ensure fairness.

The traditional confessions rule has the "twin goals" of protecting the accused and not "unduly limiting society's need to investigate and solve crimes."

Requirements of Voluntariness

The voluntariness of a statement is determined by considering the following factors:

• threats or promises
• oppression
• 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 the right to silence and voluntariness are functionally equivalent. A voluntary statement cannot violate the right to silence.

There is no rule requiring that police officers seek consent to record the dialogue of any witness or accused that they choose to interview.

Voluntariness 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.

Voluntariness implies "an awareness about what is at stake in speaking to persons in authority, or declining to assist them."

Any statement by force, threat or promise is "inherently unreliable."

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.

The voluntariness rule and the right to silence permits a certain amount of police persistence and persuasion.

Non-Investigative Exception

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 the voluntariness of the statement.

Failure to Caution Not Fatal

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. It is however prima facie evidence that the accused was unfairly denied their choice to speak to a lawyer and places a burden to prove that the absence of a caution was "without consequence" to voluntariness.

Burden of Proof

Under the common law voluntariness rule, the Crown must prove voluntariness beyond a reasonable doubt. However, for a Charter claim against the right to silence, the burden is upon the claimant to prove on the balance of probabilities.

Appellate Review

Where the correct test is applied, and all relevant factors are considered, the decision is owed deference to the determination of voluntariness.

History

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.

The Ibrahim rule was considered "narrow" as it focused primarily on inducements. It conveys the accused a "negative right...not to be tortured or coerced into making a statement by threats or promises."

Before Oickle, there was also a competing approach that relied upon "procedural fairness" using the doctrine of "operating mind." This approach expanded beyond the determining factor of whether inducements were the primary determiner of admissibility.

Person in Authority

The confessions rule is not engaged until a statement has been made to a "person in authority."

Burden

Once defence counsel validly raises the issue of whether a person is a person in authority, the Crown must disprove that the person is a "person in authority" beyond a reasonable doubt.

Requirements

A "person in authority" is someone "who has authority or control over the accused or over the proceedings or the prosecution against him."

Established Persons in Authority

"Persons in authority" can include:

• peace officer
• social worker
• interpreter assisting in a police interrogation
• Bailliffs

In all but the rarest of cases, a police officer will be considered a person in authority.

It will not include peace officers who are undercover posing as a cellmate or posing as a criminal in a "Mr. Big" operation.

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.

School Staff

Where school staff are acting as "agents" of the police, they will be considered "persons in authority."

The mere cooperation between school staff and the police and the presence of police at the time of a search of a locker is insufficient alone to make the staff "persons in authority."

911 Operators

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.

Analysis

The analysis of the factors concerning threats or promises, oppression, and operating mind is to be considered as a whole, while police trickery is a distinct inquiry.

The assessment is on an objective standard while taking individual characteristics into account.

The assessment requires "delicacy" in how the personal circumstances affect the questioning and conversation with police.

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 always 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, if not the most important, 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.

Valid Inducements

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
• non-specific suggestions that "it would be better" if the accused confessed
• phrases such as "safer," "better," "best thing"
• suggesting he should make his own choice 'without the filter of a lawyer"

Invalid forms of inducements include:

• any connection of statement to liberty
• quid pro quo for any type of service by police or prosecutor
• discuss the 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.

Oppression

The "oppression" factor relates to the level of duress experienced by the detainee.

Most people are expected to be responsible for their own choices despite what influence may be brought to bear on them.

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."

The oppression factor is where the accused is subject to such pressure that they lose their ability to freely chose not to speak. Their will is overborne by the pressure.

Considerations

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.

The mere subjective fear of being in custody is not relevant to the analysis.

Questioning

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.

Badgering and excessive cross-examination of the detainee over a long period of time may be sufficient to be oppressive.

Operating Mind

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 be 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 doctrine is not separate and apart from the rest of the confessions rule.

Default Operating Mind

The default assumption is that, absent evidence of a cognitive impairment, an operating mind exists.

Background and Character of Accused

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 incapable of voluntarily confessing (eg. Ward mentioned in Oickle), such as where they undergo “complete emotional disintegration”.

The accused does not need to possess "analytical ability." He may still have an operating mind even though he may be psychotic at the time.

Physical State of Accused

Factors to consider:

• influence of drugs or alcohol
• mental health state
• state of shock
• under hypnosis

Intoxication is not necessarily a factor against voluntariness. The question is simply whether the intoxication had an impact on the accused's ability to understand the questions and understand what they are saying in response.

For a person suffering from a severe cognitive disability, the consideration should be in light of the low probative value of someone lacking the capacity to comprehend and answer questions.

Self-Interest Not a Factor

There should be no inquiry into whether the accused is "capable of making a good or wise choice or one that is in his or her interest."

Compulsion by Conscience

By itself, "inner compulsion, due to conscience or otherwise, cannot displace a finding of an operating mind."

Mental Impairments

Cognitive impairments such as schizophrenia, intoxication, or other mental health conditions will not necessarily render a statement involuntary.

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, "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.

Undercover Officers

Undercover officers disguised as religious officials have been accepted as a valid form of police trickery.

Incomplete, Inaccurate or Non-recorded Statements

A statement that was not recorded does not automatically render it inadmissible. The same goes for incomplete recordings. Or non-contemporaneous recordings.

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, evaluate interrogation methods and deter 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. Consequently, situations where the summarizing of notes are too short to capture the whole statement may raise an issue on voluntariness.

Similarly, statements that are non-video or audio recorded are not necessarily inadmissible. In all cases, the crown must prove there is a sufficient record of the interaction between the accused and the 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 are 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.

Procedure

Recommended Procedure

The procedure for conducting a voir dire on the voluntariness of a confession should proceed as follows:

• crown requests a voir dire
• jury is excluded, if present
• crown informs the 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

Duty to Hold Voir Dire

The trial judge has an obligation to conduct a voir dire despite counsel's failure to request one where the evidence "clearly demonstrates that the receiver of the statement made by the accused was closely connected to the authorities." This obligation will rarely be triggered where the "receiver of the statement is not a conventional person in authority."

Waiver

Where the defence admits that a statement was voluntary, there is no need for a voir dire. However, the judge holds discretion to reject the admission and order a voir dire nevertheless.

Review Complete Statement

There is no rule against reviewing the entirety of a statement to determine voluntariness.

Editing

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.

Accused Testimony

If the accused testifies during the voir dire, the questions must be limited the circumstances of the taking the statement. The Crown may ask whether the statement was true.

Ruling by Different Levels of Court

A ruling rendering the confession inadmissible by a preliminary inquiry does not bind the trial judge from reconsidering the issue anew.

Use of Statement

A statement proven voluntary that is first tendered by the Crown during cross-examination may be admitted for the truth of its contents.

Admissibility Requirements of Statements

When determining the voluntariness of a statement, the authenticity and reliability of the statement are not relevant.

Burden of Proof

This Crown must prove voluntariness beyond a reasonable doubt in a voir dire. This standard remains the same 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.

Traditionally, the Crown was required to 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. This has also been articulated as requiring Crown to call any person in authority who was "likely to have been in a position to influence the giving 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.

No obligation to call all witnesses

There is no obligation on the part of the Crown to call every police officer who was present during any interaction with the accused or was otherwise had control over the accused. This may have been the rule in the past but it is no longer applicable.

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 unwilling to adopt the statement.

Jury Instruction

The trial judge had discretion but no obligation to caution the jury on the reliability of confessions. It will usually be reserved where the risks of false confessions are "readily understandable" in the circumstances. The testimony of the accused repudiating his prior confession is a situation where it should be readily understandable.

Where the parties consent to the voluntariness of a statement, a judge should never inform a jury that the statement has been found "voluntary". Such a statement is irrelevant to the weight they should put on it and may mislead to suggest that credibility has been decided.

Case Digests

• Voluntariness (Cases)

See Also

• Right Against Self-Crimination
• Admissions from Mr Big Operations
• Voluntariness Voir Dire (Model Examinations)