Voluntariness

From Criminal Law Notebook

Introduction

See also: Right Against Self-Crimination

At common law, all statements made to a "person in authority" must be proven to be voluntary before it may be admissible at trial. This is known as the "confessions rule".[1] 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.[2]

Voluntariness goes beyond being a rule of admission and relates to closely to the right to silence, the right to a fair trial, and the integrity of the process.[3] 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. [4]

The rule recognizes that innocent people do at times confess to crimes.[5]

The rule is also to protect the right against self-crimination and ensure fairness.[6]

The traditional confessions rule has the "twin goals" of protecting the accused and not "unduly limiting society's need to investigate and solve crimes."[7]

Requirements of Voluntariness

The voluntariness of a statement is determined by considering the following factors: [8]

  • threats or promises
  • oppression
  • operating mind
  • police trickery

The application of the confessions rule is contextual and requires taking into account all the circumstances.[9] 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.[10]

The test for right to silence and voluntariness are functionally equivalent. A voluntary statement cannot violate the right to silence. [11]

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.[12]

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.[13]

Voluntariness need not be proven where the statement is being tendered for voice identification.[14]

Voluntariness implies "an awareness about what is at stake in speaking to persons in authority, or declining to assist them".[15]

Any statement by force, threat or promise are "inherently unreliable".[16]

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.[17]

The presence or absence of a proper police caution is only a factor in voluntariness analysis and does not guarantee automatic exclusion or inclusion.[18]

The voluntariness rule and the right to silence permits a certain amount of police persistence and persuasion.[19]

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.[20]

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.[21]

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.[22]

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.[23]

Burden of Proof

Under the common law voluntariness rule, the Crown must prove voluntariness beyond a reasonable doubt.[24] However, for a Charter claim against the right to silence, the burden is upon the claimant to prove on the balance of probabilities.[25]

Appellate Review

Where the correct test is applied and all relevant factors are considered, the decision is owed deference to the determination of voluntariness.[26]

  1. ↑ R v Patterson, 2017 SCC 15 (CanLII), [2017] 1 SCR 202, per Brown J, at para 14
  2. ↑ R v Singh, 2007 SCC 48 (CanLII), [2007] 3 SCR 405, per Charron J, at paras 29 to 30
    R v Oickle, 2000 SCC 38 (CanLII), [2000] 2 SCR 3, per Iacobucci J, at and 47 paras 32 and 47{{{3}}}
    R v LTH, 2008 SCC 49 (CanLII), [2008] 2 SCR 739, per Fish J, at para 74
  3. ↑ Paterson, supra, at para 15
  4. ↑ Paterson, supra, at para 15
  5. ↑ R v Hart, 2014 SCC 52 (CanLII), [2014] 2 SCR 544, per Moldaver J, at paras 6 to 8
  6. ↑ Singh, supra, at para 21
    Paterson, supra, at para 15
  7. ↑ Oickle, supra, at para 33 ("In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes.")
  8. ↑ Oickle, supra
  9. ↑ Oickle, supra, at paras 47, 68, 71
  10. ↑ Oickle, supra, at para 71
  11. ↑ R v Singh, 2007 SCC 48 (CanLII), [2007] 3 SCR 405, per Charron J, at para 8
  12. ↑ R v Young, 2009 ONCA 891 (CanLII), per curiam, at para 9
  13. ↑ R v RTB, 2009 BCSC 581 (CanLII), per Griffin J
    see also Screening Device
  14. ↑ R v McGee et al, 2008 ONCJ 707 (CanLII), per Stone J
    see also Identity
  15. ↑ R v Worrall, [2002] O.J. No. 271 (ONSC)(*no CanLII links) , at para 106 (Sup. Ct.)
    R v Roy, [2002] O.J. No. 5541(*no CanLII links) , at para 255
  16. ↑ Patterson, supra, at para 14
    R v Hodgson, 1998 CanLII 798 (SCC), [1998] 2 SCR 449, per Cory J, at para 19
  17. ↑ R v Fernandes, 2016 ONCA 774 (CanLII), 343 CCC (3d) 29, per Hourigan JA (3:0), at to 41 paras 39 to 41{{{3}}}
  18. ↑ R v EB, 2011 ONCA 194 (CanLII), 269 CCC (3d) 227, per curiam, 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”)
  19. ↑ R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151, [1990] SCJ No. 64, per McLachlin J, at paras 73, 110, 130
  20. ↑ R v Tran, 1999 BCCA 535 (CanLII), 129 BCAC 277, per Finch JA (3:0) , at para 20
  21. ↑ R v Logan, 1988 CanLII 150 (ON CA), 46 CCC (3d) 354, per curiam (3:0) appealed on other grounds to SCC
  22. ↑ R v Stapleton, 1982 CanLII 3331 (ON CA), 66 CCC (2d) 231 (ONCA), per Martin JA
    R v MM, 2009 CanLII 50761 (ONSC), per Kelly J
  23. ↑ R v Hamadeh, 2011 ONSC 1241 (CanLII), OJ No 819, per R Clark J
    R v Boudreau, 1949 CanLII 26 (SCC), [1949] SCR 262
    R v Esposito, 1985 CanLII 118 (ON CA), 53 OR (2d) 356 (CA), per Martin JA
    R v KPLF, 2010 NSCA 45 (CanLII), 290 NSR (2d) 387, per MacDonald CJ (3:0), 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.”)
  24. ↑ R v Brown, 2015 ONSC 3305 (CanLII), per Fairburn J, at para 85
    Patterson, supra, at para 15
  25. ↑ Brown, ibid., at para 85
    Singh, supra, at paras 24 to 25, , at paras 39
    Hodgson, supra, at paras 34 to 38
    Hart, supra, at para 72
    Oickle, supra, at paras 30, 68, 71
  26. ↑ Template:Surpa1, at para 71
    R v Pearson, 2017 ONCA 389 (CanLII), 348 CCC (3d) 277, per Pardu JA, at para 14

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.[1]

The Ibrahim rule was considered "narrow" as it focused primarily on inducements.[2] It conveys the accused a "negative right...not to be tortured or coerced into making a statement by threats or promises".[3]

Before Oickle, there was also a competing approach that relied upon "procedural fairness" using the doctrine of "operating mind".[4] This approach expanded beyond the determining factor of whether inducements was the primary determiner of admissibility.[5]

  1. ↑ Ibrahim v The King , [1914] A.C. 599 (P.C.) (UK), 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 [1976] AC 588 (UK), at p. 606 for the English test
    Ibrahim adopted in Canada in Prosko v The King, 1922 CanLII 67 (SCC), 63 SCR 226
    Ibrahim was applied in R v Boudreau, 1949 CanLII 26 (SCC), [1949] 262
    R v Fitton; R v Wray, 1970 CanLII 2 (SCC), [1971] 272, per Martland J
    R v Rothman, 1981 CanLII 23 (SCC), [1981] 1 SCR 640, per Martland J
    see further history in Oickle
  2. ↑ Oickle, supra, at para 24
  3. ↑ Hebert, supra, at para 165
  4. ↑ R v Horvath, 1979 CanLII 16 (SCC), [1979] 2 SCR 376, per Spence J and Beetz J - develops "operating mind" doctrine"
    R v Whittle, 1994 CanLII 55 (SCC), [1994] 2 SCR 914, per Sopinka J (7:0) - continues development of "operating mind" doctrine
  5. ↑ Oickle, supra, at para 26

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 in a "person in authority" beyond a reasonable doubt.[1]

Requirements

A "person in authority" is someone "who has authority or control over the accused or over the proceedings or the prosecution against him".[2]

Established Persons in Authority

"Persons in authority" can include:

  • peace officer
  • social worker [3]
  • interpreter assisting in a police interrogation [4]
  • Bailliffs[5]

In all but the rarest of cases, a police officer will be considered a person in authority.[6]

It will not include peace officer who are undercover posing as a cellmate[7] or posing as a criminal in a "Mr. Big" operation.[8]

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.[9]

Generally, a person who is likely a witness for the Crown will not be deemed to be a person in authority.[10]

School Staff

Where school staff are acting as "agents" of the police, they will be considered "persons in authority".[11]

The mere co-operation 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".[12]

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".[13] Not all situations will warrant an operator as being in a person in authority.[14]

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.[15]

  1. ↑ R v Pickett, 1975 CanLII 1428 (ON CA), (1975), 31 CRNS 239, per Jessup JA
    R v Hodgson, 1998 ABCA 396 (CanLII), (1998) 127 CCC (3d) 449, per curiam
  2. ↑ R v Todd, 1901 CanLII 92 (MB QB), 4 CCC 514, 13 Man. R. 364 (CA), per Killam CJ
  3. ↑ R v Matchim, 2011 NLTD 60 (CanLII), per Dymond J
  4. ↑ R v Mahmood, 2008 CanLII 56710 (ONSC), per Miller J
  5. ↑ R v Belle, 2010 ONSC 1618 (CanLII), per Trotter J
  6. ↑ R v Bertrand (Gen. Div.), 1991 CanLII 7392 (ONSC), per Stortini J
    McWilliams, Canadian Criminal Evidence, 2nd ed. (Toronto: Canada Law Book, 1984), at p. 468
  7. ↑ R v J(D), 2009 ONCJ 555 (CanLII), per EB Murray J
  8. ↑ R v Osmar, 2007 ONCA 50 (CanLII), per Rosenberg JA (3:0)
    see also Admissions from Mr Big Operations
  9. ↑ R v Mantley, 2013 NSCA 16 (CanLII), per Farrar JA, at paras 19 to 42
  10. ↑ R v Harrison, 2007 CanLII 38395 (ONSC), per Durno J
  11. ↑ R v MRM, 1998 CanLII 770 (SCC), [1998] 3 SCR 393 (SCC), per Cory J (8:1)
  12. ↑ MRM, ibid.
  13. ↑ R v Ziegler, 2016 ABQB 150 (CanLII), per Renke J, at paras 115 to 119
  14. ↑ R v Latham, [1993] OJ No 4534 (CJ (Gen Div)(*no CanLII links) , per Gordon J, at para 16
    R v Paquette, [1999] OJ No 1277(*no CanLII links) , per Whalen J, at paras 71 – 74
  15. ↑ Latham, supra, at para 18
    R v Eliuk, 2002 ABCA 85 (CanLII), per curiam, 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”.[1]

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".[2]

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.[3]

An inducement that came from somewhere other than a person in authority will not render the statement involuntary.[4]

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.[5] 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".[6]

There must be a nexus between the threat or promise and the confession for it to be an improper inducement.[7]

Valid Inducements

An inducement that is only the figment of the accused's imagination, the statement will be admissible.[8]

"Supplying accurate factual information to an accused" does not amount to an improper inducement.[9]

Valid forms of inducements include:

  • spiritual or religious appeals[10]
  • polygraph results[11]
  • minimizing moral gravity of offence[12]
  • appealing to conscience or morality[13]
  • non-specific suggestions that "it would be better" if the accused confessed[14]
  • phrases such as "safer", "better", "best thing"[15]
  • suggesting he should make his own choice 'without the filter of a lawyer"[16]

Invalid forms of inducements include:

  • any connection of statement to liberty[17]
  • quid pro quo for any type of service by police or prosecutor[18]
  • discuss the effect of confession on possible penalties[19]
  • suggestions that a statement can assist in getting help for daughter[20]

There must be a causal link between the threat/promise and the confession. Otherwise, the inducement is irrelevant.[21]

  1. ↑ R v Oickle, 2000 SCC 38 (CanLII), per Iacobucci J, at para 49
  2. ↑ Oickle, ibid., at para 57
    R v Spencer, 2007 SCC 11 (CanLII), per Deschamps J, at paras 13 to 15
  3. ↑ Oickle, supra, at para 57
  4. ↑ Oickle, supra, at para 57
    see also R v Henri, 2001 ABQB 290 (CanLII), [2001] AJ No 462 (Q.B.), per Nash J
    R v Carpenter, 2001 BCCA 31 (CanLII), per Finch JA (3:0)
  5. ↑ Oickle, supra, at paras 56, 57
    R v Bakker, 2003 BCSC 599 (CanLII), per Smith J, at 95 paras 90, 95{{{3}}}
    R v Crockett, 2002 BCCA 658 (CanLII), per Levine JA, at para 28
    R v Grouse, 2004 NSCA 108 (CanLII), per Cromwell JA (3:0)
    Spencer, supra, at paras 13 to 15 - regarding will being overborne
    R v Fernandes, 2016 ONCA 772 (CanLII), per Hourigan JA, at para 27 -- considered quid pro quo to be the "most important" factor to consider.
  6. ↑ Fernandes, supra, at para 27
    R v Heatley, 2015 BCCA 350 (CanLII), per Newbury JA, at para 6
    Oickle, supra, at para 56
  7. ↑ Fernandes, supra, at para 29
    Oickle, supra, at para 84
  8. ↑ R v Whittle, 1994 CanLII 55 (SCC), per Sopinka J (7:0)
  9. ↑ Fernandes, supra, at para 30
    R v Backhouse, 2005 CanLII 4937 (ON CA), , 195 OAC 80 (CA), per Rosenberg JA (3:0)
    R v Teske, 2005 CanLII 31847 (ON CA), , 202 OAC 239 (CA), per Doherty JA (3:0)
  10. ↑ R v MacNeil, CanLII 4336 (NSCA) (1995), 138 NSR (2d) 117 (NSCA), per Hart JA leave to SCC denied
  11. ↑ R v McIntosh, 1999 CanLII 1403 (ON CA), 141 CCC (3d) 97 (Ont CA), per Weiler JA leave to SCC denied
  12. ↑ R v Speidel, 2003 BCSC 1532 (CanLII), per Tysoe J
    Bakker, supra
  13. ↑ R v Crockett, 2002 BCCA 658 (CanLII), per Levine JA (3:0)
  14. ↑ Oickle, supra, at paras 79 to 80
  15. ↑ R v Mujku, 2011 ONCA 64 (CanLII), per curiam (3:0)
  16. ↑ R v Shannon, 2012 BCSC 1519 (CanLII), per Butler J
  17. ↑ R v Backhouse, 2005 CanLII 4937 (ON CA), , 195 OAC 80 (CA), per Rosenberg JA (3:0) - officer offered to release him if he gave a good alibi. This was seen as a valid description of the situation and not an inducement.
  18. ↑ R c Bégin, 2002 CanLII 41203 (QC CA), per Fish JA - officer offered lenient sentence and protection. Ruled involuntary.
  19. ↑ R v Warren, 1997 CanLII 22736 (NWT CA), (1997) 117 CCC (3d) 418 (NWTCA), per curiam - officer said confession would result in lesser offence charged and lighter sentence. Voluntary as inducements did not cause confession
  20. ↑ R v MSM, 2014 ONCA 441 (CanLII), per curiam (3:0)
  21. ↑ e.g. Warren, supra - inducement did not cause confession

Oppression

Most people are expected to be responsible for their own choices despite what influence may be brought to bear on them.[1]

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".[2]

The oppression factor is where the accused is subject to such pressure that they lose their ability to freely chose not to speak.[3] Their will is overborne by the pressure.[4]

Considerations

Consideration for this factor includes:

  • aggressive and prolonged interrogations[5]
  • confrontation with false or fabricated evidence, including use of polygraph[6]
  • deprivations of food, water, clothing, warmth/cold, sleep, medical attention[7]

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.[8]

The mere subjective fear of being in custody is not relevant in the analysis.[9]

Questioning

Where the accused asserts his right to remain silent, the police are under no obligation to cease questioning.[10]

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.[11]

Badgering and excessive cross-examination of the detainee over a long period of time may be sufficient to be oppressive.[12]

  1. ↑ R v Paternak, 1995 ABCA 356 (CanLII), per Kerans JA, at para 27 reversed on other grounds [1996] 3 SCR 607, 1996 CanLII 147 (SCC)
  2. ↑ R v Fernandes, 2016 ONCA 772 (CanLII), per Hourigan JA, at para 33
  3. ↑ R v Paternak, 1995 ABCA 356 (CanLII), 101 CCC (3d) 452 (ABCA), per Kerans JA
  4. ↑ R v Oickle, 2000 SCC 38 (CanLII), [2000] 2 SCR 3, per Iacobucci J, at para 98
  5. ↑ Fernandes, supra, at para 34
    R v Hoilett, 1999 CanLII 3740 (ON CA), per Feldman JA (3:0), at paras 25 to 26
    Oickle, supra, at paras 59 to 62
  6. ↑ Oickle, supra, at paras 61, , at paras 98
  7. ↑ Oickle, supra, at para 71
  8. ↑ R v Espadilla, 2005 BCSC 174 (CanLII), per Warren J
  9. ↑ R v Hobbins, 1982 CanLII 46 (SCC), [1982] 1 SCR 553, per Laskin CJ
  10. ↑ R v Singh, 2007 SCC 48 (CanLII), per Charron J (5:4), at para 53
  11. ↑ Singh, ibid., 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
  12. ↑ R v Howlett, 1950 CanLII 103 (ON CA), per Hogg JA

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 found to have an “operating mind”. The level of awareness cannot go any further than that.[1]

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. [2]

Background and Character of Accused

The judge must take into account an individual’s background.[3] 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”.[4]

The accused does not need to possess "analytical ability".[5] He may still have an operating mind even where he may be psychotic at the time.[6]

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.[7] The question is simply whether the intoxication had an impacted on the accused ability to understand the questions and understand what they are saying in response.[8]

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.[9]

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."[10]

Compulsion by Conscience

By itself, "inner compulsion, due to conscience or otherwise, cannot displace a finding of an operating mind".[11]

Mental Impairments

Cognitive impairments such as schizophrenia, intoxication, or other mental health conditions will not necessarily render a statement involuntary.[12]

  1. ↑ R v Whittle, 1994 CanLII 55 (SCC), per Sopinka J (7:0), at p. 936 (the standard “does not imply a higher degree of awareness…” than the standard proposed)
  2. ↑ R v Reeves, 2011 BCSC 1513 (CanLII), per Koenigsberg J at 63
  3. ↑ Concerns of this is detailed, at para 42 of Oickle
  4. ↑ see R v Horvath, 1979 CanLII 16 (SCC), per Spence J and Beetz J, at p. 400
  5. ↑ Whittle
  6. ↑ R v Brothers, 2004 NLSCTD 202 (CanLII), per O’Regan J
  7. ↑ e.g. R v Yensen, Yensen, 1961 CanLII 160 (ONSC), 130 CCC 353 (Ont HC), per McRuer CJ - judge suggests alcohol disinhibits speech
  8. ↑ R v Santinon, 1973 CanLII 1532 (BCCA), 11 CCC (3d) 121 (BCCA), per Bull JA, at p. 124 (CCC) ("...if such incapacity is shown that the accused, for example, is so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not be fairly said to be his statement at all...")
    R v Ward, 1979 CanLII 14 (SCC), [1979] 2 SCR 30
    cf. R v Clarkson, 1986 CanLII 61 (SCC), [1986] 1 SCR 383, per Wilson J
  9. ↑ e.g. R v Stewart (1972) 56 Cr App R 272 (UK)
  10. ↑ Whittle, supra
  11. ↑ R v Whittle, 1994 CanLII 55 (SCC), per Sopkina J, at para 55
  12. ↑ Whittle, ibid. - schizophrenic accused's statement was voluntary
    R v Oldham, 1970 CanLII 1001 (BCCA), 1 CCC (2d) 141 (BCCA), per McFarlane JA
    R v McKenna, 1961 CanLII 17 (SCC), [1961] SCR 660, per Kerwin CJ
    R v Richard, 1980 CanLII 460 (BCCA), 56 CCC (2d) 129 (BCCA), per Nemetz CJ
    R v Labbe, 2002 BCSC 996 (CanLII), per Warren J appealed on other grounds
    R v Legato, 2002 CanLII 41296 (QC CA), 172 CCC (3d) 415 (QCCA), per Biron JA - accused was on morphine at the time
    R v Pavlovszky, 2005 NBCA 9 (CanLII), per Deschênes JA
    R v Santinon, 1973 CanLII 1532 (BCCA), (1973) 11 CCC (2d) 121 (BCCA), per Bull JA
    R v Nagotcha, 1980 CanLII 30 (SCC), per Laskin CJ

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)[1]

Police trickery is a distinct area of consideration from the other factors of voluntariness.[2]

The purpose of considering trickery is to maintain "the integrity of the criminal justice system".[3]

Conduct that shocks the community may not necessarily violate the right to silence or any other rule of voluntariness.[4]

Even where the conduct does not shock the community, the use of deception is relevant to the voluntariness analysis.[5]

Examples of typically proper trickery:

  • exaggerate the accuracy of polygraph results[6]
  • 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[7]

Examples of improper trickery include:

  • pretending to be a chaplain or legal aid lawyer[8]
  • using truth serum under the pretense that it is insulin[9]
  • pretending to turn off a tape recorder when taking a statement[10]

There is less tolerance for trickery on youths since they are more gullible and inexperienced.[11]

  1. ↑ R v Oickle, 2000 SCC 38 (CanLII), [2000] 2 SCR 3, per Iacobucci J, at para 66 citing R v Rothman, 1981 CanLII 23 (SCC), [1981] 1 SCR 640, per Martland J
  2. ↑ Oickle, supra, at para 65
  3. ↑ Oickle, supra, at para 65
  4. ↑ Oickle, supra, at para 67
  5. ↑ Oickle, supra, at para 91
  6. ↑ Oickle, supra, at paras 95, 97 - suggests that if confession came immediately after results, there may be an issue
  7. ↑ R v Heatley, 2015 BCCA 350 (CanLII), 327 CCC (3d) 1, per Newbury JA (3:0), at para 38
  8. ↑ Oickle, supra, at para 67
  9. ↑ Oickle, supra, at para 67
  10. ↑ R v Holt, 2012 BCSC 1121 (CanLII), 95 CR (6th) 276, per Dickson J
  11. ↑ R v K et al, 2004 BCPC 210 (CanLII), per McKinnon J, at para 88

Undercover Officers

Undercover officers disguised as religious officials have been accepted as a valid form of police trickery.[1]

  1. ↑ see R v Welsh, 2013 ONCA 190 (CanLII), per Rosenberg and Sharpe JJA

Incomplete, Inaccurate or Non-recorded Statements

A statement that was not recorded does not automatically render it inadmissible.[1] The same goes for incomplete recordings. Or non-contemporaneous recordings.[2]

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."[3]

Video recording "can greatly assist the trier of fact in assessing [a] confession".[4] They provide a means for the court to enforce safeguards, it evaluates interrogation methods and deters improper tactics.[5]

However, the lack of recording can enhance concerns of voluntariness.[6] 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.[7]

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.[8] 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, 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.[9]

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.[10] 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.[11]

  1. ↑ R v Oickle, 2000 SCC 38 (CanLII), [2000] 2 SCR 3, per Iacobucci J, at para 46
    R v Reeves, 2011 BCSC 1513 (CanLII), per Koenigsberg J, at para 40
    R v Richards, 1997 CanLII 12470 (BCCA), [1997] 87 BCAC 2, 33 WCB (2d) 39, per Braidwood JA, at para 36
    R v Moore-McFarlane and Bogel, 2001 CanLII 6363 (ONCA), , [2001] O.J. No. 4646 (CA), per Charron JA (3:0), at paras 64, 65 and 67
    R v Ducharme, 2004 MBCA 29 (CanLII), per Kroft JA leave to appeal to SCC refused
  2. ↑ Ducharme, ibid., at paras 26 to 47
  3. ↑ R v Learning, 2010 ONSC 3816 (CanLII), per Code J, at para 62
    R v MacDonald–Pelerine, 2014 NSCA 6 (CanLII), per Beveridge JA (3:0), at para 43
  4. ↑ Oickle, supra, at para 46
    R v MD, 2012 ONCA 841 (CanLII), per Watt JA (3:0)
  5. ↑ Oickle, supra, at para 46
  6. ↑ Reeves, supra at 41
  7. ↑ R v White, 2003 CanLII 40837 (ON CA), per Feldman JA (3:0), at para 21
    Moore-McFarlane, supra, at paras 65 to 66
    MD, supra, at para 41
  8. ↑ R v Belanger, 1978 CanLII 2312 (ONSC), 40 CCC (2d) 335 (Ont. H.C.J.), per Pennell J at 345 (CCC)
    Richards, supra at 33
  9. ↑ Ducharme, supra, at para 42
  10. ↑ R v Lapointe, 1983 CanLII 3558 (ON CA), 9 CCC (3d) 366 (ONCA), per Lacourciere JA aff'd at 35 CCC (3d) 287, 1987 CanLII 69 (SCC), per curiam
  11. ↑ Moore-McFarlane, supra, at para 67

Procedure

The procedure for conducting a voir dire on voluntariness of a confession should proceed as follows:[1]

  • 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

Where the defence admits that a statement was voluntary there is no need for a voir dire.[2] However, the judge hold discretion to reject the admission and order a voir dire nevertheless.[3]

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".[4] This obligation will rarely be triggered where the "receiver of the statement is not a conventional person in authority".[5]

There is no rule against reviewing the entirety of a statement to determine voluntariness.[6]

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.[7]

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.

A ruling rendering the confession inadmissible by a prelminary inquiry does not bind the trial judge from reconsidering the issue anew.[8]

A statement proven voluntary that is first tendered by the Crown during cross examination may be admitted for the truth of its contents.[9]

When determining the voluntariness of a statement the authenticity and reliability of the statement is not relevant.[10]

  1. ↑ Gibson, "Criminal Evidence, Practice & Procedure" 18(B)
  2. ↑ R v Grey, 2013 BCCA 232 (CanLII), per Frankel JA (3:0), at para 41
  3. ↑ Grey, ibid., at para 41
  4. ↑ R v Hodgson, 1998 CanLII 798 (SCC), per Cory J, at para 41
  5. ↑ Hodgeson, ibid.
  6. ↑ R v Stringer, 1992 CanLII 2775 (NL CA), 69 CCC (3d) 535 (NLCA), per Goodridge CJ ("There is no law that precludes this and, in some cases, it is necessary to read the statement before making such a ruling.")
  7. ↑ R v Kanester, 1966 CanLII 544 (BCCA), 4 CCC 231 (BCCA), per Branca JA (2:1)
  8. ↑ R v Banwait, 2010 ONCA 869 (CanLII), per Simmons JA
  9. ↑ R v Turpin, 2005 BCSC 475 (CanLII), per Ehrcke J, at para 12
  10. ↑ R v Lapointe and Sicotte, 1987 CanLII 69 (SCC), [1987] 1 SCR 1253, per curiam aff'g (1983) 9 CCC (3d) 366 (ONCA), 1983 CanLII 3558 (ON CA), per Lacourciere JA

Burden of Proof

This Crown must prove voluntariness beyond a reasonable doubt in a voir dire.[1] This standard remains the same even during a preliminary inquiry.[2] The Crown is required to lead evidence detailing the surrounding circumstances leading up to the statement.[3] A failure to set out a sufficient record of the interaction between the accused and police may result in the statement being involuntary.[4]

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.[5] 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".[6]

A person in authority who is sufficiently remote from the taking of the statement should not necessarily be required to testify.[7]

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.[8]

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.[9]

No obligation to call all witnesses

There is no obligation of 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.[10] This may have been the rule in the past, but is no longer applicable.[11]

  1. ↑ R v Moore-McFarlane, 2001 CanLII 6363 (ONCA), [2001] O.J. No. 4646 (CA), per Charron JA, at paras 65 and 67
    R v Ahmed, 2002 CanLII 695 (ONCA), [2002] O.J. No. 4597 (CA), per Feldman JA, at para 22
  2. ↑ R v Pickett, 1975 CanLII 1428 (ON CA), 28 CCC (2d) 297, 31 CRNS 239, per Jessup JA
    R v Jama, 2013 ONSC 4291 (CanLII), per O'Marra J, at para 31 ("The only instance where the reasonable doubt standard applies at a preliminary inquiry is where the Crown tenders a statement given to a person in authority. The burden of proving a statement voluntary is the same at a Preliminary Inquiry as at trial. The standard is proof beyond a reasonable doubt. In the absence of a waiver a voir dire must be held at Preliminary Inquiry, as at trial, to prove voluntariness.")
    see also s. 542(1) which states "Nothing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him.".
  3. ↑ R v Sankey, 1927 CanLII 43 (SCC), [1927] SCR 436, per Anglin CJ
    R v Guilbride, 2003 BCPC 261 (CanLII), per Arnold J, at paras 48 to 50
    R v Malik, 2002 BCSC 362 (CanLII), [2002] BCJ No 3222 (BCSC), per Josephson J
    Moore-McFarlane, supra, at para 70
  4. ↑ R v Holmes, 2002 CanLII 45114 (ON CA), 169 CCC (3d) 344 (ONCA), per Rosenberg JA - crown failed to call evidence of 16 hour wait period in custody
    See also, R v Jimmy John, 2007 ABPC 125 (CanLII), per McIlhargey J - failed to call an officer who was present
    R v Petri, 2003 MBCA 1 (CanLII), per Kroft JA
    R v Koszulap, 1974 CanLII 1461, 20 CCC (2d) 193, per Jessup JA, at pp. 194, 197-198
    R v Genaille, 1997 CanLII 4333 (MB CA), per Helper JA leave refused - failure to call sherriff's who detained accused prior to statement. statement found voluntary
    Guilbride, supra - statement taken in police officer's note books conflicted
  5. ↑ R v Hatfield (1984), 62 NSR (2d) 151(*no CanLII links)
    R v GAJ, 1993 CanLII 14695 (NSCA), 120 NSR (2d) 432 (NSCA), per Clarke CJNS ("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 Menezes, 2001 CanLII 28426 (ONSC), 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.")
  6. ↑ R v Socobasin, 1996 CanLII 5271 (NS CA), 110 CCC (3d) 535, per Hallett JA at para 73, 78 ("73 The accused’s position is that the prosecution is obliged to call every witness who had anything to do with the 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. ... 78 The trial judge must look at the circumstances and determine whether the Crown called as a witness on the voir dire every person in authority likely to have been in a position to influence the giving of the statement by the accused and, if not, was that person’s absence from testifying explained satisfactorily.")
  7. ↑ R v Dinardo, 1981 CanLII 3292 (ON CA), 61 CCC (2d) 52, per Borins CJ
  8. ↑ R v Brooks, 1986 CanLII 1168 (BCCA), 28 CCC (3d) 441 (BCCA), per MacFarlane JA (2:1)
  9. ↑ R v Chow, 1978 CanLII 2499 (BCCA), 43 CCC (2d) 215 (BCCA), per McFarlane JA, at para 16
  10. ↑ R v Garfield, 1974 CanLII 1632 (CMAC), 21 CCC (2d) 449, 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), 22 CCC (2d) 193, per Culliton CJ, pp. 206-207 (SKCA)
    R v Menezes, 2001 CanLII 28426 (ONSC), per Hill J, 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.")
    cf. R v Thiffault, 1933 CanLII 52 (SCC), [1933] SCR 509, per Duff CJ
    R v Woodward, 1975 CanLII 1471, 23 CCC (2d) 508, per Schroeder JA, at para 5 ("We are all of the opinion that the written statement, ex. 3, should not have been ruled as admissible before the Crown had called as witnesses all persons in authority with whom the accused had been in contact at all relevant times beginning with the incident in the park, during the conduct of the search in pursuance of the search warrant, and in the detachment prior to the interrogation of the accused by Constable Creighton...")
    R v Kacherowski, 1977 CanLII 1987 (AB CA), 37 CCC (2d) 257, per Lieberman JA
    R v Wert, 1979 ABCA 342 (CanLII), [1979] 12 CR 3 (d) 254 (BCCA)
    R v Chow Tai and Limerick, 1978 CanLII 2499 (BCCA), 43 CCC (2d) 215, per McFarlane JA
    cf. R v Erven, 1978 CanLII 19 (SCC), per Dickson J (4:3)
    cf. R v Dyer (1979), 1980 WWR 446(*no CanLII links) , per Laycraft JA, at para 26
    cf. R v Seabrooke, 1932 CanLII 124 (ON CA), [1932] OR 575, 58 CCC 323 (CA), per Mulock CJ
  11. ↑ See R v Thiffault, 1933 CanLII 52 (SCC), [1933] SCR 509, per Duff CJ ("Where such a statement is elicited in the presence of several officers, the statement ought, as a rule, not to be admitted unless (in the absence of some adequate explanation of their absence) those who were present are produced by the Crown as witnesses")
    R v Lavallee, 2018 ABCA 328 (CanLII), per curiam, at para 41 ("In short, we disagree that the Crown was required to call AM to testify at the voir dire, and we are satisfied that the trial judge had sufficient evidence before him to meaningfully assess whether the appellant’s confession was made voluntarily.")

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.[1]

Jury Instruction

The trial judge had discretion but no obligation to give a caution to the jury on the reliability of confessions.[2] It will usually be reserved where the risks of false confessions are "readily understandable" in the circumstances.[3] The testimony of the accused repudiating his prior confession is a situation where it should be readily understandable.[4]

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.[5]

  1. ↑ R v Groves, 2013 BCCA 446 (CanLII), per Mainella JA, at para 41
    cf. R v McKerness, 2007 ONCA 452 (CanLII), per Armstrong JA, at para 37
  2. ↑ R v Pearce (ML), 2014 MBCA 70 (CanLII), per Mainella JA, at para 130
    R v Lavallee, 2018 ABCA 328 (CanLII), per curiam
  3. ↑ Lavallee, ibid.
  4. ↑ Lavallee, ibid.
  5. ↑ R v Pearce, 2014 MBCA 70 (CanLII), per Mainella JA, at para 100 ("Once the confession was determined to be voluntary and admissible, it was a question for the jury to decide if it was true applying normal principles of evidence ... . The fact that the confession had been ruled voluntary was meaningless to the jury's consideration of the appellant's claim that he made a false confession. No mention of a judge's ruling as to admissibility of a confession can be made in front of the jury because it may prejudice an accused by giving the jury the impression that the judge has already decided on the credibility of the witnesses against the accused...")
    R v Viszlai, 2012 BCCA 442 (CanLII), per Frankel JA
    R v Falconer, 2016 NSCA 22 (CanLII), at para 62

Case Digests

See Also

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