Canadian Criminal Evidence/Admissions and Confessions/Confessions

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. Confessions are admissible where they are sufficiently reliable.

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

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

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

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

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. However, vagueness on the exact wordings of the statement without loss of meaning is not sufficient.

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." 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." The court in R. v. Moore-McFarlane, commented that "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." (at para 67).

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.

Voir Dire
A voir dire on the admissibility of a statement to a person in authority requires the judge to determine:
 * 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.

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.

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

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

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:
 * 1) the time span between the statements;
 * 2) advertence to the earlier statement during questioning in the subsequent interview;
 * 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". All of this is to the view of whether the derived statement was contaminated by the first statement.

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

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.

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.

Use of a Confession
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.

If the Crown introduces the as part of its case, the parts favourable to the defence also become admissible. The trier-of-fact however determines what part of the statement to accept as fact.

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. 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.

Young Offenders
Section 146 of the Youth Criminal Justice Act governs the admission of statements by young accused persons.