Canadian Criminal Evidence/Admissions and Confessions/Voluntariness

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At common law, all statements made to a person in authority must be proven to be voluntary for them to be admissible. This is known as the "confessions rule". This must be determined 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.[1] The rule is also to protect the right against self-crimination and ensure fairness.[2]

The voluntariness of a statement is determined by considering the following factors: [3]

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

The application of the confessions rule is contextual and requires taking into account all the circumstances.[4] 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.[5]

The test for right to silence and voluntariness are functionally equivalent. A voluntary statement cannot violate the right to silence. [6]

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.[7]

The voluntariness rule derives its origin from the Ibrahim rule from the English common law, which exlcudes statements only where the police held out explicit threats or promises to the accused.[8]

  1. R. v. Singh 2007 SCC 48 (CanLII), [2007] 3 SCR 405 at para. 29
    R v Oickle, 2000 SCC 38 at paras. 32 and 47
  2. Singh at para. 21
  3. R. v. Oickle 2000 SCC 38
  4. Oickle at paras. 47, 68, 71
  5. Oickle at para. 71
  6. R. v. Singh, 2007 SCC 48 (CanLII), [2007] 3 SCR 405 at para. 8
  7. R. v. Hamadeh, 2011 ONSC 1241 (CanLII)
    R. v. Boudreau, 1949 CanLII 26 (SCC), [1949] S.C.R. 262
    R. v. Esposito 1985 CanLII 118 (ON CA), (1985), 53 O.R. (2d) 356 (C.A.)
    R. v. K.P.L.F., 2010 NSCA 45 (CanLII), 2010 NSCA 45, 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.”)
  8. Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609 ("no statement by an accused is admissible in evidence against him unless it is shewn 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 at p. 606 for the English test
    Ibrahim adopted in Canada in Prosko v. The King 1922 CanLII 67 (SCC), (1922), 63 S.C.R. 226
    see further history in Oickle

Person in Authority

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

"Persons in authority" include:

  • peace officer
  • social worker [1]
  • interpreter assisting in a police interrogation [2]

It will not include peace officer who are undercover posing as a cellmate[3] or posing as a criminal in a "Mr. Big" operation.[4]

  1. R. v. Matchim, 2011 NLTD 60 (CanLII)
  2. R. v. Mahmood, 2008 CanLII 56710 (ON SC)
  3. R. v. J.(D.), 2009 ONCJ 555 (CanLII)
  4. R. v. Osmar, 2007 ONCA 50 (CanLII)

Improper Inducements (Threats or Promises)

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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]

An inducement that came from somewhere other than a person in authority will not render the statement involuntary.[3]

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.[4]

An inducement that is only the figment of the accused's imagination, the statement will be admissible.[5]

Valid forms of inducements include:

  • spiritual or religious appeals[6]
  • polygraph results[7]
  • minimizing moral gravity of offence[8]

Invalid forms of inducements include:

  • any connection of statement to liberty[9]
  • quid pro quo for any type of service by police or prosecutor[10]
  • discuss effect of confession on possible penalties[11]

  1. Oickle at para. 49
  2. Oickle at para. 57 R. v. Spencer, 2007 SCC 11 at para 13-15
  3. Oickle at para 57
    see also R. v. Henri, [2001] A.J. No. 462 (Q.B.)
    R. v. Carpenter 2001 BCCA 31
  4. Oickle at para. 56,57
    R. v. Bakker 2003 BCSC 599 at paras 90, 95
    R. v. Crockett 2002 BCCA 658 at para 28
    R. v. Grouse 2004 NSCA 108
    R. v. Spencer, 2007 SCC 11 at para 13-15 - regarding will being overborne
  5. R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 SCR 914
  6. R. v. MacNeil (1995), 138 N.S.R. (2d) 117 (NSCA) leave to SCC denied
  7. R v. McIntosh (1999) 141 C.C.C. (3d) 97 (Ont CA) leave to SCC denied
  8. R. v. Speidel 2003 BCSC 1532
    R. v. Bakker 2003 BCSC 599
  9. 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.
  10. R. c. Bégin, 2002 CanLII 41203 (QC CA) - officer offered lenient sentence and protection. Ruled involuntary.
  11. R. v. Warren (1997) 117 C.C.C. (3d) 418 (NWTCA) - officer said confession would result in lesser offence charged and lighter sentence. Voluntary as inducements did not cause confession


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The oppression factor is where the Accused is subject to such pressure that they lose their ability to chose not to speak.[1] Consideration for this factor includes:

  • aggressive and long interrogations
  • confrontation with false or fabricated evidence
  • 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.[2]

  1. R. v. Paternak (1995), 101 CCC 3d 452 (ABCA) 1995 ABCA 356
  2. R. v. Espadilla 2005 BCSC 174

Operating Mind

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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 judge must take into account an individual’s background.[2] 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”.[3]

The doctrine is not separate and apart from the rest of the confessions rule. [4]

Cognitive impairments such as schizophrenia, intoxication, or other mental health conditions will not necessarily render a statement involuntary.[5]

  1. Whittle [1994] 2 SCR 914 a p 936 (the standard “does not imply a higher degree of awareness…” than the standard proposed)
  2. Concerns of this is detailed at para 42 of Oickle
  3. see R v Horvath 1979 CanLII 16 (SCC) at p 400
  4. R. v. Reeves, 2011 BCSC 1513 at 63
  5. R v Whittle [1994] 2 SCR 914 - schizophrenic accused's statement was voluntary
    R. v. Oldham (1970) 1 C.C.C. (2d) 141 (B.C.C.A.)
    R. v. McKenna [1961] 1 S.C.R. 660
    R. v. Richard (1980) 56 C.C.C. (2d) 129 (BCCA)
    R. v. Labbe 2002 BCSC 996 appealed on other grounds
    R. v. Legato (2002) 172 C.C.C. (3d) 415 (QCCA) - accused was on morphine at the time
    R. v. Pavlovszky, 2005 NBCA 9
    R. v. Santinon 11 C.C.C. (2d) 121 (BCCA)
    R. v. Nagotcha [1980] 1 S.C.R. 714

Police Trickery

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Trickery by police is allowed. Authorities sometimes must resort to tricks and deceit in dealing with shrewd and sophisticated criminals. What 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]

Examples of improper trickery include:

  • pretending to be a chaplain or legal aid lawyer[5]
  • using truth serum under the pretense that it is insulin[6]
  • pretending to turn off a tape recorder when taking a statement[7]
  1. Oickle at para. 66 citing Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 SCR 640
  2. Oickle at para. 65
  3. Oickle at para. 65
  4. Oickle at para. 67
  5. Oickle at para 67
  6. Oickle at para. 67
  7. R. v. Holt, 2012 BCSC 1121 (CanLII)

Partial or Non-recorded Statements

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Video recording "can greatly assist the trier of fact in assessing [a] confession".[1] They provide a means for the court to enforce safeguards, it evaluates interrogation methods and deters improper tactics.[2]

A statement that was not recorded does not automatically render it inadmissible.[3] The same goes for incomplete recordings.

However, the lack of recording can enhance concerns of voluntariness.[4] 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.[5]

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.[6] 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.[7]

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.[8] 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.[9]

  1. Oickle at para. 46
    R. v. M.D., 2012 ONCA 841 (CanLII)
  2. Oickle at para. 46
  3. Oickle at para. 46
    R v Reeves 2011 BCSC 1513 at para. 40
    R. v. Richards, [1997] 87 B.C.A.C. 2, 33 W.C.B. (2d) 39, 1997 CanLII 12470 (BCCA)at para. 36
    R. v. Moore-McFarlane and Bogel, [2001] O.J. No. 4646 (C.A.), 2001 CanLII 6363 at para. 64, 65 and 67
  4. Reeves at 41
  5. R. v. White 2003 CanLII 40837 (ON CA) at para. 21
    R. v. Moore-McFarlane 2001 CanLII 6363 (ON CA) at paras. 65-6
    R. v. M.D., 2012 ONCA 841 (CanLII) at para. 41
  6. R. v. Belanger (1978), 40 C.C.C. (2d) 335 at 345 (Ont. H.C.J.)
    R v Richards at 33
  7. R. v. Ducharme, 2004 MBCA 29 (CanLII) (Man. C.A.), leave to appeal to SCC refused at para. 42
  8. R v Lapointe, (1983) 9 CCC (3d) 366 (ONCA) aff'd at 35 CCC (3d) 287
  9. Moore-McFarlane at para. 67


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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
  1. Gibson, "Criminal Evidence, Practice & Procedure" 18(B)

Burden of Proof

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This Crown must prove voluntariness beyond a reasonable doubt in a voir dire.[1]

The Crown is required to lead evidence detailing the surrounding circumstances leading up to the statement.[2] A failure to set out a sufficient record of the interaction between the accused and police may result in the statement being involuntary.[3]

There is no obligation of the part of the Crown to call every police officer who was present during any interaction with the accused.[4]

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.[5]

A person in authority who is sufficiently remote from the taking of the statement should not necessarily be required to testify.[6]

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.[7]

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.[8]

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

  1. R. v. Moore-McFarlane, [2001] O.J. No. 4646 (C.A.), 2001 CanLII 6363 at para. 65 and 67
    R. v. Ahmed, [2002] O.J. No. 4597 (C.A.), 2002 CanLII 695 at para. 22
  2. R v Sankey, 1927 CanLII 43 (SCC), [1927] SCR 436
    R. v. Guilbride, 2003 BCPC 261 (CanLII) at paras. 48-50
    R v Malik [2002] BCJ No 3222 (BCSC)
    Moore-McFarlane at para. 70
  3. R v Holmes,(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 C.C.C. (2d) 193 (Ont. C.A.) at p. 194, 197-198
    R. v. Genaille, 1997 CanLII 4333 (MB CA) leave refused - failure to call sherrif's who detained accused prior to statement. statement found voluntary
    R. v. Guilbride - statement taken in police officer's note books conflicted
  4. R v Garfield (1974) 21 CCC (2d) 449 (ONCA) 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), 22 C.C.C. (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 [1933] SCR 509, 1933 CanLII 52 (SCC)
    R. v. Woodward (1975), 23 C.C.C. (2d) 508 (Ont. C.A.)
  5. R. v. Hatfield (1984), 62 N.S.R. (2d) 151
    Hatfield elaborated in R. v. G.A.J., (1993), 120 N.S.R. (2d) 432 (N.S.C.A.) ("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.")
  6. R. v. Dinardo, (1981), 61 C.C.C. (2d) 52 per Borins C.C.J.
  7. R. v. Brooks, 1986 CanLII 1168 (BC CA), (1986) 28 CCC (3d) 441 (BCCA)
  8. R v Chow, (1978) 43 CCC (2d) 215 (BCCA) at para. 16

See Also

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