Canadian Criminal Evidence/Admissions and Confessions/Voluntariness

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

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 right to silence and voluntariness are functionally equivalent. A voluntary statement cannot violate the right to silence.

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.

Origin 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.

Person in Authority
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
 * interpreter assisting in a police interrogation

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

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".

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

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.

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

Valid forms of inducements include:
 * spiritual or religious appeals
 * polygraph results
 * minimizing moral gravity of offence

Invalid forms of inducements include:
 * any connection of statement to liberty
 * quid pro quo for any type of service by police or prosecutor
 * discuss effect of confession on possible penalties

Oppression
The oppression factor is where the Accused is subject to such pressure that they lose their ability to chose not to speak. 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.

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.

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

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

Police Trickery
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)

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.

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

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

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

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. 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.

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

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

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.

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

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.

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.

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