Criminal Law Notebook

Confessions

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General Principles

A confession is a written or oral statement by the accused to a person in authority that admits a factual element to the Crown's case. The law regarding confessions applies equally to inculpatory statements as well as exculpatory statements.

Where a confession has been admitted as evidence in the Crown's case, the trier-of-fact may consider the statement as proof of facts found within it.[1]

Voluntariness of Confessions

All confessions must be voluntary to be admissible. [2] This is the court's key concern.[3] When it is not voluntary is it not reliable and so is not admissible in evidence.[4]

Burden of Proof

This Crown must prove voluntariness beyond a reasonable doubt in a voir dire.[5]

Vague Statements

The confession must be given sufficient context background to be admissible. If the statement is too vague and the context of the statement could have multiple meanings, it should not be admitted.[6] However, vagueness on the exact wordings of the statement without loss of meaning is not sufficient.[7]

Methods of Recording Statement

There is no requirement that the statement be recorded to be admissible as voluntary.[8]

Where the statement was not recorded under suspicious circumstances, such as where recording facilities were readily available, the judge must determine "whether or not a sufficient substitute for an audio or video tape record has been provided ... to prove voluntariness beyond a reasonable doubt."[9] The "completeness, accuracy and reliability of the record have everything to do with the court's inquiry into and scrutiny of the circumstances surrounding the taking of the statement."[10] However, where the recording was not done properly, the Crown will have a heavy onus to admit the statement.[11]

Failure to Records

The issue of voluntariness of an unrecorded statement depends on the circumstances.[12]

  1. ↑ R v Lynch, (1988), 30 O.A.C. 49 (Ont. C.A.) (*no CanLII links)
    R v Humphrey, 2003 CanLII 6855 (ON CA), (2003) 172 CCC (3d) 332 (Ont. C.A.), per Moldaver JA
  2. ↑ R v Piche, [1971] SCR 23 1970 CanLII 82 (SCC), per Hall J
    R v Boudreau, 1949 CanLII 26 (SCC), [1949] SCR 262
    Erven v The Queen, 1978 CanLII 19 (SCC), [1979] 1 SCR 926, per Dickson J
    Horvath v The Queen, 1979 CanLII 16 (SCC), [1979] 2 SCR 376
  3. ↑ R v Oickle, 2000 SCC 38 (CanLII), [2000] 2 SCR 3, per Iacobucci J, at 47
  4. ↑ see Horvath, supra, at p. 408
  5. ↑ R v Moore-McFarlane, [2001] OJ No 4646 (C.A.), 2001 CanLII 6363 (ONCA), per Charron JA, at paras 65 and 67
    R v Ahmed, [2002] OJ No 4597 (C.A.), 2002 CanLII 695 (ONCA), per Feldman JA, at para 22
  6. ↑ R v Ferris, 1994 ABCA 20 (CanLII), per curiam (2:1) - no context of statement "I killed David", could have been "The police think I killed David, but I didn’t."
  7. ↑ R v Bennight, 2012 BCCA 190 (CanLII), per Bennett JA, at para 92
    R v Kennealy (1972), 6 CCC (2d) 390 (BCCA)(*no CanLII links) , at pp. 394-95 (CCC)
    R v Richards, 1997 CanLII 12470 (BC CA), (1997), 87 BCAC 21, 6 C.R. (5th) 154 (C.A.), per Braidwood JA, at para 31
  8. ↑ Moore-McFarlane, supra, at para 64
  9. ↑ Moore-McFarlane, supra, at para 65
  10. ↑ Moore-McFarlane, supra, at para 65
    adopted in see Ahmed, supra
    R v Burke, 2010 ONSC 6530 (CanLII) [2010] OJ No 5219, per Baltman J
  11. ↑ Moore-McFarlane, supra, at para 67 ("it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.")
  12. ↑ R v Swank, 2005 CanLII 3326 (ON CA), (2005), 194 O.A.C. 155, [2005] OJ No 493 (C.A.), per Doherty JA, at para 9

Admission of Guilt

An admission of guilt can encompass statements that are direct admissions of guilt or admission of fact that tends to prove guilt.[1]

Such an admission can be by words or by conduct that could reasonably be taken as intending to be an assertion.[2]

  1. ↑ Ian Scott and Joseph Martino, "Salhany's Police Manual of Arrest, Seizure & Interrogation", 11th ed. at p. 203
  2. ↑ R v St Lawrence, 1949 CanLII 100 (ON SC)
    R v Wray, [1971] SCR 272, 1970 CanLII 2 (SCC)(complete citation pending)
    R v Coons, 1980 CanLII 312 (BC CA)

By the Accused

The rules on confessions apply only to statements made by the accused.

This does not include statements by third parties in the presence of the accused. These statements are only admissible as adoptive admissions.[1]

  1. ↑ See Admissions#Third Party Admissions
    R v Thomas, 2013 ONSC 1640 (CanLII), per O'Marra J, at para 11

Persons in Authority

A confession includes statements made merely in the presence of a person in authority as long as the accused was aware of their presence. [1]

  1. ↑ R v Matchette (1946), 87 CCC 46 (NBCA)(*no CanLII links)
    cf. R v AD, 2003 BCCA 106 (CanLII), per Finch CJ - admission to cellmate overheard by sheriffs

Voir Dire

A voir dire on the admissibility of a statement to a person in authority requires the judge to determine:[1]

  1. whether there is some evidence that it was made; and
  2. whether it was given voluntarily.

The voir dire should generally be held as part of the Crown's case regardless of whether the statement is only to be used for cross-examination. There are circumstances where the voluntariness can be proven at the time of cross-examination of the accused.[2]

Where the accused denies the statement, the voir dire is not to determine whether the statement was actually made beyond a reasonable doubt. The issue of whether the statement was made for the purpose of trial is determined after the voir dire.[3]

In the voir dire, the judge only needs to have "some credible evidence" that the statement was made.[4]

There is no need to have a voir dire for the admission where the statement of the accused is part of the offence (e.g. uttering threats, perjury, refusal).

  1. ↑ R v Gauthier, 1975 CanLII 193 (SCC), [1977] 1 SCR 441 (SCC), per Pigeon J
  2. ↑ e.g. R v Drake, 1970 CanLII 577 (SK QB), [1971] 1 CCC (2d) 396, per MacPherson J
  3. ↑ R v Mohamed, 2012 ONSC 1784 (CanLII), per Pattillo J, at para 13
  4. ↑ R v Lapointe, (1983), 9 CCC (3d) 366 (Ont. C.A.), 1983 CanLII 3558 (ON CA), , per Lacourciere JA, at para 39
    Mohamed, at para 13

Circumstances of the Statement

Suspect Statements Made Before Arrest or Detention

When a suspect is invited to give a formal statement to police the statement is admissible as long as it is given voluntarily and not while detained or charged.[1] If the suspect is detained or charged then they are entitled to have access to counsel.

  1. ↑ e.g. R v Kynoch, 2002 ABQB 930 (CanLII), per Moen J

Accused Statements Made During Detention

See also: Right to Counsel

Statements Made Upon Arrest

Exculpatory statements of the accused upon arrest are admissible as an exception to prohibiting self-serving evidence when tendered by the Crown. [1] However, it has been held that such exculpatory statements can be admitted by the accused’s testimony. [2]

  1. ↑ Sopinka on Evidence, at p. 319 para (f) and R v Knox (1968), 2 CCC (2d) 348, 1967 CanLII 692 (BC CA), per Branca JA, at p. 360 (CCC)
    see also R v Keller, (1977) 36 CCC (2d) 9(*no CanLII links)
  2. ↑ The King v Hughes, [1942] SCR 517, 1942 CanLII 22 (SCC), per Duff CJ
    Lucas, supra
    R v Edgar, 2010 ONCA 529 (CanLII), per Sharpe JA, at para 24

Derived Confessions

Confessions that follow an inadmissible involuntary confession may also be excluded from evidence as a derived confession. [1]

The judge must consider the connection between the statements and the influence the improper conduct had on the derived confession, taking into account all relevant circumstances including:[2]

  1. the time span between the statements;
  2. advertence to the earlier statement during questioning in the subsequent interview, including whether there were cautions that the prior statement should not influence the decision to make subsequent statements;
  3. discovery of additional information after completion of the first statement;
  4. the presence of the same police officers during both interviews; and
  5. other similarities between the two sets of circumstances.

The derived statement will be involuntary if "the tainting features that disqualified the first continue to be present" or if "the fact that the first statement was made was a substantial factor that contributed to the making of the second statement".[3] All of this is to the view of whether the derived statement was contaminated by the first statement.[4]

Connection between statements includes a temporal, contextual and causal connection.[5]

Contamination is not limited to involuntariness but also to Charter breaches such as the right to counsel under s. 10(b) of the Charter. In such cases, the admissibility is based on s. 24(2) of the Charter.[6]

A secondary caution or warning can be a major factor in eliminating any contamination that a previous involuntary statement would have on a subsequent derived statement.[7]

  1. ↑ R v I(LR) and T(E), 1993 CanLII 51 (SCC), [1993] 4 SCR 504, per Sopinka J, at p. 526
    R v Hobbins, 1982 CanLII 46 (SCC), [1982] 1 SCR 553, per Laskin CJ, at p. 558
  2. ↑ R v MD, 2012 ONCA 841 (CanLII), per Watt JA, at para 54
    T(E), supra, at p. 526
    Hobbins, at p. 558
    R v G(B), 1999 CanLII 690 (SCC), [1999] 2 SCR 475, per Bastarache J, at para 21
    R v Foster, 2017 ONCA 751 (CanLII), per curiam, at para 11
  3. ↑ MD, supra, at para 55
    T(E), supra, at p. 526
    G(B), supra, at paras 21 and 23
  4. ↑ MD, supra, at para 55 and G(B), supra, at para 23
  5. ↑ MD, supra, at para 56
    R v Plaha, 2004 CanLII 21043 (ON CA), per Doherty JA, at para 46
  6. ↑ R v Wittwer, 2008 SCC 33 (CanLII), [2008] 2 SCR 235, per Fish J, at para 21
    Plaha, supra, at paras 42-45
  7. ↑ R v Whittle, (1992), 78 CCC (3d) 49 (Ont. C.A.), 1992 CanLII 12777 (ON CA), per Goodman JA appealed on other grounds
    R v Lehman, 2000 ABPC 43 (CanLII), per Allen J, at para 62

Admission of a Confession as Part of Crown's Case or for Cross-Examination

A confession that is found to be admissible may be used by the Crown to be admitted as part of its case for the truth of its contents as a hearsay exception or it may be held for cross-examination purposes.[1]

If the Crown introduces the as part of its case, the parts favourable to the defence also become admissible.[2] The trier-of-fact, however, determines what part of the statement to accept as fact.[3] When the statement is put in as part of the Crown's case, the Court must consider the statement as if he had testified.[4]

The rule requiring the admission of the whole statement, however, cannot be used to force the Crown to adduce all statements made by the accused. The rule should not be allowed to be used by defence to avoid subjecting the accused to cross-examination, challenges to credibility.[5] The exception to the hearsay rule permitting admission is based on the reliability of statements of guilt. Exculpatory statements are self-serving and so are not considered as reliable.[6]

An accused cannot lead evidence of any of his statements made at the time as it permits the accused from avoiding to testify, it self-serving and lacks probative value.[7] Exceptions exist for circumstances such as recent possession.[8]

Whether the statement is inclupatory or exclupatory or a mix, does not affect its admissibility.[9]

The answers to questions given during police questioning should be considered in light of the impermissible rules on cross-examination. Questions that would be impermissible as a cross-examination may be equally inadmissible within a statement. The police asking the accused "why would complainant lie", is considered inappropriate to put to the jury.[10]

An accused statement adduced by the Crown can be afforded the same weight as the actual testimony, however, it may also be given lesser weight in light of it not being under oath and not subject to cross-examination.[11] An accused statement can still be used to establish reasonable doubt.[12]

  1. ↑ R v Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466, per McIntyre J - court had no problem with crown holding back statement for cross
  2. ↑ R v Jackson (1980) 57 CCC (2d) 154 (ONCA), 1980 CanLII 2945 (ON CA), per Martin JA
    R v Lynch, (1988), 30 O.A.C. 49 (Ont. C.A.) (*no CanLII links) ("...[the confession] became evidence for the accused as well as against him and that it was open to the jury to consider those statements as proof of the facts contained therein.") R v Allison, 1991 CanLII 492 (BC CA), (1991) 68 CCC (3d) 375 (BCCA), per McEachern JA
    R v Ziegler, 2010 BCCA 504 (CanLII), per Hinkson JA - If a "portion of the statement by and accused is led by the crown, the accused has the right to elicit other parts of the statement that were not adduced by the Crown, so long as they are all part of the same statement".
  3. ↑ R v Humphrey, 2003 CanLII 6855 (ON CA), per Moldaver JA, at para 19
    The King v Hughes, 1942 CanLII 22 (SCC), [1942] SCR 517, per Duff CJ citing Higgins, supra
  4. ↑ R v Wood, 2014 MBQB 49 (CanLII), per Greenberg J, at para 29
    R v BD, 2011 ONCA 51 (CanLII), (2011), 273 O.A.C. 241, per Blair J, at para 114
  5. ↑ R v Fredrick, (1931) 57 CCC 340 (BCCA), 1931 CanLII 495 (BC CA), per MacDonald CJ, at p. 342
  6. ↑ See Sopinka, The Law of Evidence in Canada, 2nd Ed. at ss. 8.94
  7. ↑ R v Rojas, 2008 SCC 56 (CanLII), [2008] 3 SCR 111, per Charron J, at para 36
    R v Simpson, 1988 CanLII 89 (SCC), [1988] 1 SCR 3, per McIntyre J, at para 24
    R v Edgar, 2010 ONCA 529 (CanLII), per Sharpe J, at paras 72, 73
  8. ↑ R v Burton, [2008] OJ No 4044 (S.C.J.)(*no CanLII links) , at para 10 - no closed list of circumstances of admitting post-arrest statements
    R v Pattison, 2011 BCSC 1594 (CanLII), per Holmes J aff'd at 2013 BCCA 246 (CanLII), per Frankel JA - considers alternatives to rule against leading prior statements such as hearsay exceptions and prior consistent statement rule
  9. ↑ R v Docherty, 2010 ONSC 1338 (CanLII), per Wein J, at para 5
  10. ↑ R v LL, 2009 ONCA 413 (CanLII), per Simmons JA
  11. ↑ R v Randall, 2012 CanLII 51156 (NB CA), per Richard JA, at para 26
  12. ↑ Randall, ibid., at para 26

Editing Statements

Once a statement has been found to be admissible, the court has a "heavy duty to edit out the prejudicial aspects of the statement, but must also ensure that what remains is meaningful".[1]

Where the statement cannot be appropriately edited then the statement should not be admitted.[2]

Any statements that are admitted with bad character evidence should require the judge to give a limiting instruction.[3]

  1. ↑ R v Oseguera, 2014 BCCA 352 (CanLII), per Neilson JA, at para 20
  2. ↑ Oseguera, ibid., at para 20
    R v Bonisteel, 2008 BCCA 344 (CanLII), per Levine JA, at para 45
  3. ↑ Oseguera, at para 21
    See also Character Evidence

Young Persons

See Also

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