R. v. Spencer, [2007] 1 S.C.R. 500, 2007 SCC 11

SUPREME COURT OF CANADA

Citation: R. v. Spencer, [2007] 1 S.C.R. 500, 2007 SCC 11

Date: 20070308

Docket: 31365

Between:

Her Majesty The Queen

Appellant

and

Brandon Shane Spencer

Respondent

Coram: Bastarache, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 23)

Dissenting Reasons:

(paras. 24 to 51)

Deschamps J. (Bastarache, LeBel, Charron and Rothstein JJ. concurring)

Fish J. (Abella J. concurring)

R. v. Spencer, [2007] 1 S.C.R. 500, 2007 SCC 11

Her Majesty The Queen Appellant

v.

Brandon Shane Spencer Respondent

Indexed as: R. v. Spencer

Neutral citation: 2007 SCC 11.

File No.: 31365.

2006: October 17; 2007: March 8.

Present: Bastarache, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Evidence — Admissibility — Confessions — Voluntariness — Accused and his girlfriend arrested — Accused confesses to robberies after requesting lenient treatment for girlfriend and being permitted to visit with her — Whether statements voluntary — Whether trial judge applied correct test in admitting statements.

S was arrested for multiple robberies and his girlfriend, H, was arrested for one of them. Following his arrest, S expressed concern for H and asked that she be kept out of it. The police told S that H would be charged with possession of a handgun and other items connected with one of the robberies. S offered to confess in exchange for lenient treatment for H. The interviewing officer denied being able to make a deal with S. S also requested a visit with H. S confessed to some of the robberies and was allowed to visit H. He then confessed to the other robberies. After a lengthy voir dire, the trial judge admitted S’s statements into evidence and subsequently convicted him of 18 robberies. A majority of the Court of Appeal found that the trial judge had applied an incorrect test in admitting the statements as voluntary, and ordered a new trial with respect to 16 of the robberies.

Held (Fish and Abella JJ. dissenting): The appeal should be allowed and the convictions should be restored.

Per Bastarache, LeBel, Deschamps, Charron and Rothstein JJ.: S’s statements to the police were properly admitted. At common law, statements made by an accused to a person in authority are inadmissible unless they are voluntary. Several factors are relevant to determining whether a statement is voluntary, including whether the police made any promises to or threatened the accused. A promise renders a statement involuntary only if the quid pro quo provides a strong enough inducement to raise a reasonable doubt about whether the will of the suspect was overborne. Accordingly, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is not by itself determinative. It is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement. [1] [11‑15]

Where a trial judge considers all the relevant circumstances and properly applies the law, deference is owed to his or her determination on the voluntariness of the statement at issue. In this case, the limited reference to R. v. Paternak (1995), 1995 ABCA 356, 101 C.C.C. (3d) 452, was only made in relation to the question of whether any lesser inducement was sufficient to render a statement involuntary. The trial judge did not err in his contextual analysis of the voluntariness of S’s statements. No offer was made to treat H leniently, and the withholding of a visit with her until a partial confession was made was not a strong enough inducement to render S’s statement inadmissible. S did not lose control of the interview to the point where he was not on a level playing field with the police. The trial judge expressly and repeatedly referred to the proper standard of proof and to this Court’s decision in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, to determine the voluntariness of the accused’s statements. His finding that the statements were voluntary should not have been disturbed. [17‑23]

Per Fish and Abella JJ. (dissenting): The trial judge misapprehended the governing test and wrongly required that any inducement be so overbearing that S lost any meaningful, independent ability to choose to remain silent. There is no such standard for determining the voluntariness of a statement induced by promises or threats by a person in authority. The induced confessions rule presupposes that a statement given by an accused to a person in authority is the product of an operating mind. If the statement is not the product of an operating mind, it will be considered involuntary on that ground. Statements may be involuntary if they were made in response to an improper inducement that caused a fear of prejudice or a hope of advantage. The threat or promise need not be aimed directly at the suspect. An offer to obtain lenient treatment for someone closely related to the person from whom the statement is sought can render it involuntary and inadmissible. Threats or promises will be fatal if the court is left with a reasonable doubt about whether, alone or in combination with other factors, they induced a statement. [24] [27‑31] [35] [37]

The most important consideration is to look for a quid pro quo. In this case, the Court of Appeal gave appropriate weight to this consideration. The trial judge did not and thereby committed an error of law. The evidence discloses an implicit but unmistakable threat accompanied by an implicit but unmistakable promise that rendered inadmissible S’s inculpatory statements to the police. The interrogating officer threatened to bring charges against H and referred to evidence implicating her in the robberies. He also indicated to S that he would recommend to the Crown that H not be charged if S confessed. There is a real likelihood that S was induced to confess by a compound quid pro quo because the intensity of his feelings for H provided a powerful motivation to say whatever was needed, true or false, to get H lenient treatment. S’s relationship with H was strong enough to induce a false confession and his statements are therefore inadmissible. [38‑41] [44] [47‑50]

Cases Cited

By Deschamps J.

Explained: R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Paternak (1995), 1995 ABCA 356, 101 C.C.C. (3d) 452, rev’d on other grounds, 1996 CanLII 147 (SCC), [1996] 3 S.C.R. 607; referred to: Ibrahim v. The King, [1914] A.C. 599; Director of Public Prosecutions v. Ping Lin, [1976] A.C. 574.

By Fish J. (dissenting)

Ibrahim v. The King, [1914] A.C. 599; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Paternak (1995), 1995 ABCA 356, 101 C.C.C. (3d) 452, rev’d on other grounds, 1996 CanLII 147 (SCC), [1996] 3 S.C.R. 607; R. v. Fitton, 1956 CanLII 28 (SCC), [1956] S.C.R. 958; R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286.

Authors Cited

Paciocco, David M., and Lee Stuesser. The Law of Evidence, 4th ed. Toronto: Irwin Law, 2005.

Stuart, Don. “Oickle: The Supreme Court’s Recipe for Coercive Interrogation” (2001), 36 C.R. (5th) 188.

APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J. and Donald and Hall JJ.A.) (2006), 223 B.C.A.C. 1, 369 W.A.C. 1, 207 C.C.C. (3d) 47, [2006] B.C.J. No. 366 (QL), 2006 BCCA 81, setting aside in part a decision of McKinnon J., [2003] B.C.J. No. 3117 (QL), 2003 BCSC 805. Appeal allowed, Fish and Abella JJ. dissenting.

Beverly A. MacLean, for the appellant.

Joseph J. Blazina, for the respondent.

The judgment of Bastarache, LeBel, Deschamps, Charron and Rothstein JJ. was delivered by

1Deschamps J. — This appeal concerns the admissibility of statements made by the respondent to the police. I conclude that the trial judge properly applied R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, in admitting the accused’s statements. Accordingly, I am of the view that the appeal should be allowed and the convictions restored.

1. Factual Background

2The respondent was charged with 18 robberies in British Columbia that had taken place between November 12, 1997 and August 29, 2001. The robbery on this last date was committed by four men, one of whom fired a handgun as they escaped.

3The respondent was arrested late in the evening of September 1, 2001 while driving a vehicle associated with three of the robberies. The vehicle was registered to his girlfriend, Tanya Harrison, who was also arrested the following day in relation to one of the robberies. The execution of a search warrant later that evening at their shared residence led to the discovery of the handgun, as well as watches and jewellery, from the robbery of August 29, 2001.

4At trial, the Crown relied on inculpatory statements that the respondent had made to Constable Parker of the RCMP while in custody after his arrest. On September 3, 2001, Constable Parker was returning the respondent to his cell when the respondent asked what was happening to Ms. Harrison. Constable Parker stated that he intended to recommend that they both be charged with possession of the handgun and jewellery found in their residence. Constable Parker testified that the respondent then insisted on making statements, which he then made. It is the admissibility of these statements that is at issue in this appeal.

5The respondent advances two reasons why his inculpatory statements to Constable Parker should be held to be involuntary, and thus inadmissible, namely that he was induced to confess by a hope of leniency for Ms. Harrison and the promise of a visit with her. Constable Parker conducted a lengthy interview with the respondent. The interview was videotaped, and a transcript of it was filed in the record. Given the highly fact-sensitive nature of this area of the law and the duration of the interview, the precise content of the exchanges is important. Lengthy extracts, namely those portions that have been cited by the parties and in the decisions below, are reproduced in the Appendix. The interview lasted some eight or nine hours. The first relevant part of the interview reflects attempts by the respondent to obtain more lenient treatment for Ms. Harrison, if he confessed to various robberies and the denials of Constable Parker to be able to make a deal. The second part is a discussion concerning a visit with Ms. Harrison. The interview was interrupted after the respondent confessed to some of the robberies. He was then allowed a visit with Ms. Harrison, and upon returning, he confessed to the other robberies.

2. Judicial History

6McKinnon J. of the Supreme Court of British Columbia, sitting without a jury, ruled after an eight-day voir dire that he was satisfied beyond a reasonable doubt that the respondent’s statements to Constable Parker were voluntary, and therefore admissible ([2003] B.C.J. No. 751 (QL), 2003 BCSC 508). The respondent was subsequently convicted of the 18 robberies after a 20-day trial ([2003] B.C.J. No. 3117 (QL), 2003 BCSC 805).

7The trial judge discussed separately the two arguments raised by the respondent. With respect to the repeated requests for leniency for Ms. Harrison, the trial judge found that “[n]owhere is there any indication of [a threat or] a quid pro quo” (voir dire, at para. 16). He concluded that “at no time did Cst. Parker ever tell Mr. Spencer that Ms. Harrison would not be charged if he provided a confession. Nor did Cst. Parker speak of lenient treatment for Ms. Harrison in exchange for a confession” (voir dire, at para. 15). The trial judge observed that Constable Parker had expressly disavowed his ability to make such a promise. McKinnon J. noted that Constable Parker had merely “appealed to Mr. Spencer’s common sense and knowledge of the justice system” (voir dire, at para. 17). The trial judge also found that “[t]he interview reveals the accused’s frustration with Cst. Parker’s inability to offer him a deal” (voir dire, at para. 19).

8Concerning the respondent’s being allowed to visit Ms. Harrison, the trial judge found, as follows, that this “lesser inducement” did not affect the voluntariness of the statements:

Allowing Mr. Spencer to visit with his girlfriend only after he cleaned his slate is clearly an inducement. Crown has conceded as much. However, I would characterize it as a “lesser inducement” of the same type as the psychiatric counselling discussed in Oickle. It is necessary to look at the entirety of the circumstances.

The question is whether the inducement, standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the free will of the accused was overborne.

Mr. Spencer continually attempts to extract a “deal” from Cst. Parker, a confession in exchange for a visit with his girlfriend, but Cst. Parker consistently tells him he cannot make such a deal. Some of the exchanges taken in isolation suggest the exchange of a confession for a visit but, when I look at the entirety of the interrogation, clearly Mr. Spencer is never under any illusions that such a deal has been struck. . . .

Although withholding the accused’s visit with his girlfriend until he offered, at the minimum, a partial confession was clearly an inducement, his free will was not “overborne” by that action.

(Voir dire, at paras. 29-30 and 37-38)

9The majority of the Court of Appeal for British Columbia allowed the respondent’s appeal, finding that the trial judge had erred “in applying an incorrect test to his analysis of the evidence, and in considering irrelevant factors” ((2006), 223 B.C.A.C. 1, 2006 BCCA 81, at para. 2). Donald J.A., for the majority, held specifically that the trial judge had erred in relying on R. v. Paternak (1995), 1995 ABCA 356, 101 C.C.C. (3d) 452 (Alta. C.A.), at p. 461, rev’d on other grounds, 1996 CanLII 147 (SCC), [1996] 3 S.C.R. 607, and in “[taking] into account irrelevant factors, namely, who proposed the deal, the appellant’s attitude and demeanour, and the level playing field, when the only real question was the presence, or otherwise, of a quid pro quo” (para. 36). Hall J.A. dissented, stating that the trial judge “was correct in his analysis, both factually and legally, and I see no proper basis upon which to set aside his determination at trial” (para. 91).

3. Analysis

10With respect for my colleagues’ opinion, the trial judge’s findings of fact are not at issue; what is required here is not a review of the finding that Constable Parker did not promise more favourable treatment for Ms. Harrison. The issue in this case is whether the trial judge applied the proper test in admitting the respondent’s statements to Constable Parker. The appellant brings this question before this Court as of right, owing to disagreement at the Court of Appeal as to whether the trial judge had applied the correct legal test in determining that the accused’s statements were admissible.

3.1 Law Governing the Voluntariness of Statements

11At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to the voluntariness of confessions. . . . It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (at para. 47):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over‑ and under‑inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

12In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of “police . . . trickery” to obtain a confession “is a distinct inquiry . . . [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).

13With respect to promises, which are at issue in the present appeal, this Court has recognized that they “need not be aimed directly at the suspect . . . to have a coercive effect” (Oickle, at para. 51). While Iacobucci J. recognized in Oickle that the existence of a quid pro quo is the “most important consideration” when an inducement is alleged to have been offered by a person in authority, he did not hold it to be an exclusive factor, or one determinative of voluntariness. On the contrary, the test laid down in Oickle is “sensitive to the particularities of the individual suspect” (para. 42), and its application “will by necessity be contextual” (para. 47). Furthermore, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary. For example, an offer of psychiatric or psychological assistance, although “clearly an inducement, . . . is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances” (para. 50). Inducements “becom[e] improper only when . . . standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne” (para. 57).

14To the extent that any distinction in law may be asserted between the traditional “confessions rule” in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609, per Lord Sumner, and this Court’s decision in Oickle, the latter must prevail. In my view, however, Lord Sumner’s formulation of the “narrow” rule does not mean that any quid pro quo will automatically render a statement involuntary. Indeed, Lord Sumner required that in order for a statement to be admissible, it must not have been “obtained from [the accused] either by fear of prejudice or hope of advantage”. In the subsequent case of Director of Public Prosecutions v. Ping Lin, [1976] A.C. 574 (H.L.), at p. 595, Lord Morris asked: “was it as a result of something said or done by a person in authority that an accused was caused or led to make a statement”.

15Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.

3.2 Standard of Appellate Review

16In Oickle, Iacobucci J. stated the following about the standard of appellate review of a trial judge’s decision on whether a statement is voluntary (at paras. 71 and 22):

If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”. . . .

. . . a disagreement with the trial judge regarding the weight to be given various pieces of evidence is not grounds to reverse a finding on voluntariness. [Emphasis deleted.]

17Where a trial judge considers all the relevant circumstances and properly applies the law, deference is owed to the judge’s determination on the voluntariness of the statement at issue. Professor Stuart argues that it is “odd to speak of deference in a case where the interrogations were videotaped”: D. Stuart, “Oickle: The Supreme Court’s Recipe for Coercive Interrogation” (2001), 36 C.R. (5th) 188, at p. 196. This comment, however, overlooks the fact that even where the interview is videotaped, it will rarely constitute the totality of the evidence heard during the voir dire on admissibility. Indeed, in the instant case, the voir dire included testimony by Constable Parker in addition to the viewing of the videotaped interview. The testimony and cross-examination of those involved in the taking of the statement, and evidence on context, are usually important factors that the trial judge is required to weigh in the overall inquiry into voluntariness. Moreover, findings of fact are best made by trial judges who deal with such questions on a daily basis. Thus, they are in the best position to draw conclusions from the evidence both because of this expertise and because of their privileged position in assessing the evidence as a whole.

3.3 Review of the Trial Judge’s Ruling on Voluntariness

18In the case at bar, the majority of the Court of Appeal found that the trial judge had erred by applying the wrong test for voluntariness in that he had relied on Paternak, at p. 461, in citing the following extract (at para. 38):

For an otherwise healthy and mature human to be deprived of an effective choice, I am inclined to the view that the influence must be so overbearing that it can be said that the detainee has lost any meaningfully independent ability to choose to remain silent, and has become a mere tool in the hands of the police. [Emphasis in original.]

Donald J.A. held that the trial judge had thus erred because “the Paternak formulation is wrong [in] that it substitutes volition as the key element when, according to Oickle, at 350, para. 57, it is the element of a quid pro quo that occupies centre stage” (para. 40). With respect, the majority of the Court of Appeal overemphasized one element of Paternak, as well as the trial judge’s reference to that case. First, the trial judge made it very clear that there had been no promise of more favourable treatment for Ms. Harrison. He referred to Paternak only in relation to the “lesser inducement”, which was the possibility of visiting Ms. Harrison. Second, the trial judge was correct not to attach particular importance to the respondent’s possible motive.

19In fact, despite its colourful language, the impugned passage from Paternak focusses on whether the accused had an effective choice and whether his or her will was overborne. In this respect, this criterion has already been mentioned above and is more ably explicated in the following excerpt (Oickle, at para. 57):

In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, 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. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:

Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self‑generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

Arguably, taken out of context, the impugned passage from Paternak appears to overstate the test in Oickle since it does not make reference to the quid pro quo or to the reasonable doubt standard. However, it is clear from reading the trial judge’s reasons that he did not commit these errors, since he expressly and repeatedly referred to the proper standard of proof and to this Court’s decision in Oickle. Furthermore, what occupies “centre stage” is not the quid pro quo, but voluntariness — it is the overarching subject of the inquiry, and this should not be lost in the analysis. As discussed above, while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness.

20In my view, the trial judge made no error of law in concluding that no offer of leniency was made in respect of Ms. Harrison and that the withholding of a visit to her until at least a partial confession was made was an inducement that was not strong enough to render the accused’s statements inadmissible. It was a relevant factor that the accused had not “lost control of the interview to the point where he and Cst. Parker [were] no longer playing on a level field” (voir dire, at para. 35). In Oickle, at para. 87, Iacobucci J. explicitly recognized that “[t]he absence of oppression is important not only in its own right, but also because it affects the overall voluntariness analysis.”

21It was also relevant to the particularities of the respondent that, according to the trial judge, he was aggressive and a “mature and savvy participant”, and that he unsuccessfully attempted many times to secure “deals” with the police. While none of these factors are determinative, it was not an error for the trial judge to consider them in his contextual analysis.

22Therefore, both the grounds given by the majority of the Court of Appeal are insufficient to warrant intervention in the trial judge’s ruling that the respondent’s statements were voluntary, and thus admissible.

4. Conclusion

23The trial judge correctly relied on Oickle and had the advantage of an eight-day voir dire on the admissibility of the respondent’s statements, at which a nine-hour videotape of the interviews in question was viewed. His finding that the respondent’s statements were voluntary is entitled to deference and should not have been disturbed on appeal. For these reasons, I would allow the appeal and restore the convictions.

The reasons of Fish and Abella JJ. were delivered by

Fish J. (dissenting) —

I

24This appeal turns on whether the trial judge misapprehended the governing test in determining that statements given by the respondent to his police interrogator were “voluntary” within the meaning of Ibrahim v. The King, [1914] A.C. 599 (P.C.), and R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38. In my respectful view, he did.

25Essentially, as we shall see, the trial judge admitted the respondent’s statements because he was satisfied that “any influences that played upon [the respondent] fell well short of the requirements the Alberta Court of Appeal felt were necessary in [R. v. Paternak (1995), 1995 ABCA 356, 101 C.C.C. (3d) 452]” (Ruling on voir dire, [2003] B.C.J. No. 751 (QL), 2003 BCSC 508, at para. 35).

26In this regard, the trial judge (at para. 27) cited these “requirements” from Paternak (which, unlike this case, related to exclusion of a statement under the “operating mind doctrine”):

For an otherwise healthy and mature human to be deprived of an effective choice, I am inclined to the view that the influence must be so overbearing that it can be said that the detainee has lost any meaningfu[l] independent ability to choose to remain silent, and has become a mere tool in the hands of the police.

(Paternak, at p. 461 (emphasis deleted))

27Reading these passages together and in context, it seems plain to me from the judge’s own reasons that he applied the wrong legal standard: In deciding that the free will of the respondent was not overborne, within the meaning of Oickle, he evidently understood that the influence of any inducement held out by the officer “must be so overbearing that it can be said that the detainee has lost any meaningful[l] independent ability to choose to remain silent, and has become a mere tool in the hands of the police” (the emphasis throughout is mine).

28Ibrahim established no such standard for determining the voluntariness of a statement given by the accused as a result of threats or promises made or held out by a person in authority. Neither did Oickle.

29I agree with Justice Deschamps that, if there is “any distinction in law . . . between the traditional ‘confessions rule’ in Ibrahim . . . and this Court’s decision in Oickle, the latter must prevail” (para. 14). But Oickle in fact reaffirms the core of the “induced” confessions rule laid down in Ibrahim:

As indicated by McLachlin J. (as she then was), in R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, there are two main strands to this Court’s jurisprudence under the confessions rule. One approach is narrow, excluding statements only where the police held out explicit threats or promises to the accused. The definitive statement of this approach came in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609:

It has long been established as a positive rule of English criminal law, that 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.

This Court adopted the “Ibrahim rule” in Prosko v. The King (1922), 1922 CanLII 584 (SCC), 63 S.C.R. 226, and subsequently applied it in cases like Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262, Fitton, supra, R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272, and Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640.

The Ibrahim rule gives the accused only “a negative right — the right not to be tortured or coerced into making a statement by threats or promises held out by a person who is and whom he subjectively believes to be a person in authority”: Hebert, supra, at p. 165. However, Hebert also recognized a second, “much broader” approach, according to which “[t]he absence of violence, threats and promises by the authorities does not necessarily mean that the resulting statement is voluntary, if the necessary mental element of deciding between alternatives is absent” (p. 166). [paras. 24-25]

30Nothing in Oickle has narrowed the scope of this rule, which presupposes that a statement given by the accused to a person in authority was the product of an operating mind. If the statement is not the product of an operating mind, it will be considered involuntary on that ground.

31The Ibrahim rule, explained and reaffirmed in Oickle, is concerned instead,

as we have just seen, with the admissibility of statements “obtained from [the accused] either by fear of prejudice or hope of advantage exercised or held out by a person in authority” (p. 609). These statements are considered involuntary because they would not have been made but for an improper inducement and have been proven by experience to be unreliable for that reason.

32In such cases, the will of the detainee has not been “overborne” in the sense that he or she “has lost any meaningfu[l] independent ability to choose to remain silent” (Paternak, at p. 461); rather, the will of the detainee is said to have been “overborne” only in the sense that he or she would not otherwise have given a statement but was persuaded to do so in order to achieve an expected result — to avoid threatened pain or achieve promised gain. A statement thus given is the result of a calculated decision by an operating mind; it is nonetheless considered “involuntary” for the reasons set out in both Ibrahim and Oickle.

33Far from narrowing this rule set out in Ibrahim, the Court in Oickle adopted a broader approach to voluntariness. Iacobucci J., speaking for the majority, traced the recent development of the Ibrahim rule in Canada and concluded (at para. 27):

Clearly, the confessions rule embraces more than the narrow Ibrahim formulation; instead, it is concerned with voluntariness, broadly understood.

34And Iacobucci J. quoted with approval this passage from the reasons of Rand J. in R. v. Fitton, 1956 CanLII 28 (SCC), [1956] S.C.R. 958, at p. 962:

The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them. [para. 42]

Later, Justice Iacobucci stated:

As noted above, in Ibrahim the Privy Council ruled that statements would be inadmissible if they were the result of “fear of prejudice or hope of advantage”. The classic “hope of advantage” is the prospect of leniency from the courts. It is improper for a person in authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses. . . . Intuitively implausible as it may seem, both judicial precedent and academic authority confirm that the pressure of intense and prolonged questioning may convince a suspect that no one will believe his or her protestations of innocence, and that a conviction is inevitable. In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession. An explicit offer by the police to procure lenient treatment in return for a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptional circumstances. [para. 49]

35To warrant exclusion, moreover, “[t]hreats or promises need not be aimed directly at the suspect for them to have a coercive effect” (Oickle, at para. 51); thus, for example, an offer by the police to obtain lenient treatment for someone closely related to the person from whom a statement is sought can render it involuntary, and therefore inadmissible. An example of this sort of improper inducement would be “telling a mother that her daughter would not be charged with shoplifting if the mother confessed to a similar offence” (Oickle, at para. 52).

36As we shall see, this aspect of the rule is of particular relevance here.

37Threats or promises, explicit or implicit (Oickle, at para. 55), will be fatal when made by a person in authority if the court is left with a reasonable doubt whether, alone or in combination with other factors, they induced the making or giving of a statement.

38Finally, in determining whether a statement has been obtained by an improper inducement and should be excluded on that ground, the Court in Oickle stated (at para. 57):

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.

39Unlike Justice Deschamps, I find that the British Columbia Court of Appeal gave appropriate weight to this “most important consideration”. The trial judge, unfortunately, did not. And, in my respectful view, his error resulted from a misapprehension of the applicable test of voluntariness. An error of this sort is an error of law — and not an error of fact, or of mixed law and fact: R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286.

40Moreover, nothing in the trial judge’s reasons persuades me that he erroneously applied Paternak only to the “lesser inducement” as suggested by Justice Deschamps (at para. 18), and not to the stronger inducements established by the uncontradicted evidence, to which I now turn.

III

41The uncontradicted evidence on the voir dire discloses what I would characterize as a compound quid pro quo — an implicit but unmistakable threat accompanied by an implicit but unmistakable promise that rendered inadmissible the respondent’s inculpatory statements to the police. At the very least, they raise a reasonable doubt whether the statements were improperly induced and therefore involuntary under both Ibrahim and Oickle.

42The threat and the promise were both directed at the respondent’s girlfriend and it appears plain from the record that their relationship was “strong enough to raise a reasonable doubt about whether the will of the [respondent] ha[d] been overborne” (Oickle, at para. 57).

43In Oickle, the relationship between the accused and his girlfriend was said to be strong enough, potentially, to induce a false confession were she threatened with harm. This Court found, however, that no such threat had been made. There were no pending charges against her that the police were offering to drop; they never threatened to bring charges against her; indeed, they never suggested that she was a suspect. Moreover, the timing of the comments regarding the accused’s girlfriend suggested that there was no causal connection between the alleged inducements and the subsequent confession. The accused confessed approximately two hours after he thought the police were already speaking to his girlfriend (Oickle, at paras. 83-84).

44In the present case, the respondent’s relationship with his girlfriend, Tanya, was likewise strong enough to induce a false confession were she threatened with harm. And unlike Oickle, there was such a threat — accompanied, as I have mentioned, by Constable Parker’s promise of advantageous intervention with the Crown and with other police officers on Tanya’s behalf.

45The depth of the respondent’s concern with Tanya’s welfare and his determination to save her from being charged were apparent throughout his interrogation. He referred repeatedly to his wish that Tanya be “kept out of it”; he inquired about the potential consequences for Tanya’s child if Tanya were charged; he offered to confess to 30-40 robberies if Tanya were “ke[pt] . . . out of everything”.

46Constable Parker himself acknowledged the respondent’s vulnerability with regard to Tanya, as well as the strength of their relationship. “Tanya’s the center of your world”, he asked the respondent rhetorically, “is [that] what you’re telling me?”

47Constable Parker clearly indicated to the respondent that he would recommend to the Crown that Tanya not be charged if the respondent confessed:

[Constable Parker]: . . . But it doesn’t take a rocket scientist to figure out, if you’re right here in the middle and you’re the main player, and you’re the one going in doing the robberies, and you’re . . . you’re the guy that’s involved and she’s simply the driver, it doesn’t take [a] Rhodes Scholar to figure out the likelihood of where the charges are gonna fall at the end of the day. Unfortunately, I . . . I’m not in a position to . . . to make that deal with you, but I know that Crown is. All I can do is give the information to Crown with my recommendation. . . .

[Constable Parker]: . . . We have some input and some say . . .

[Constable Parker]: . . . When I put my report . . . or the reports go forward to Crown Counsel, you . . . you probably know where the charges are gonna lie.

[Constable Parker]: . . . But I wanna know what your involvement was; bearing in mind at this point, Brandon, she hasn’t said anything to incriminate herself, and bearing in mind that I can talk to other Police on their investigations.

(Appellant’s Record, at pp. 710, 711, 714 and 721)

No less subtly, Constable Parker threatened that Tanya would be charged unless the respondent confessed:

[Constable Parker]: Listen, hear me out, Brandon.

Spencer: No, just take me to my cell.

[Constable Parker]: Well, then what’s gonna happen is this. Tanya’s gonna be coming down and she’ll be charged with robberies because those investigations will proceed further and she will be identified, trust me, out of photo line-ups from the witnesses in Victoria, in Abbotsford, and possibly South Surrey – although I haven’t looked deeply into that file yet, that’s why I need to hear from you. I can talk to other Police investigators, Brandon, and I can talk to Crown.

(Appellant’s Record, at p. 716)

48In short, unlike Oickle, the interrogating officer in this case did threaten to bring charges against the respondent’s girlfriend and, to lend added weight to the threat, referred to the evidence implicating her as the driver of the getaway car used in the robberies. Constable Parker suggested that she was more than a mere suspect. And, again unlike Oickle, the respondent confessed immediately after being told once more that Tanya would be charged unless he confessed.

49At the end of his interrogation, Constable Parker asked the respondent why he had confessed. The respondent’s spontaneous reply was short and eloquent: “For my girl”, he said. This confirms to me that, on the uncontradicted evidence before us, there is a real likelihood that the respondent was induced to confess by the compound quid pro quo held out to him by Constable Parker.

50In conclusion on this point, I agree with the Court of Appeal that “[t]he intensity of the [respondent’s] feelings for Tanya, evident in the transcript, would provide a powerful motivation to say whatever was needed, true or false, to get Tanya lenient treatment” (para. 50).

IV

51For all of these reasons, I would dismiss the Crown’s appeal and affirm in all respects the order made in the Court of Appeal.

APPENDIX

The following passages are excerpts from the interview between Constable Parker and the respondent:

[Cst. Parker]: So what I’m saying here is there is some middle ground here. You’re gonna achieve your goal of keeping her out of the shit and I’m going to achieve my goal and do my job and find out the details of . . .

Spencer: I’ll give you the ones that she’s involved in; if you keep her out of it.

[Cst. Parker]: You know what? And again I keep saying this; I can’t make you a promise. But I’m asking you to think logically here. When I put my report . . . or the reports go forward to Crown Counsel you . . . you probably know where the charges are gonna lie . . .

[Cst. Parker]: I can’t make promises to you in exchange for information, because the courts, unfortunately can interpret that as being an inducement to obtain a statement.

Spencer: There’s no inducement.

[Cst. Parker]: Okay. Now you have to understand, Brandon uh . . . and hear me out here, okay, because this is important, and uh it’s how things work, and unfortunately I cannot change that. The way the law is, I can’t promise you anything or make any deals in here, uh . . . in exchange for you giving me your involvement in crime. Uh . . . because as I said earlier, that can be interpreted when this goes to court, it can be interpreted by courts as being an inducement to obtain a statement from you. Do you understand?

Spencer: Uh huh

[Cst. Parker]: I can’t do that, I can’t promise you anything or try and induce a statement. It has to be your free will, right.

Spencer: I know.

[Cst. Parker]: . . . obviously I can’t right here, right now start making deals with you. That’s . . . that’s not my position and that . . . that just can’t happen.

Spencer: Well when can you?

[Cst. Parker]: What I’m wanting you to listen here to is . . . when that charge gets forwarded to Crown Counsel, they’re the ones that are in position to do any deal makings . . .

Spencer: Yeh that’s great.

[Cst. Parker]: . . . between you . . .

Spencer: And they’re in a position to say “Fuck you too”

[Cst. Parker]: You’re the guy that’s involved and she’s simply the driver, it doesn’t take a Rhodes Scholar to figure out the likelihood of where the charges are gonna fall at the end of the day. Unfortunately I . . . I’m not in a position to . . . to make that deal with you, but I know that Crown is. All I can do is give the information to Crown with my recommendation. And then Crown . . .

Spencer: So I get no guarantees.

[Cst. Parker]: You want guarantees from me, but I . . . I can’t give you any guarantees at this point. . . .

Spencer: Then take me back to my cell.

[Cst. Parker]: When we’re done . . .

Spencer: Take me back to my cell then.

[Cst. Parker]: Listen, hear me out, Brandon.

Spencer: No, just take me back to my cell.

[Cst. Parker]: Well, then what’s gonna happen is this. Tanya’s gonna be coming down and she’ll be charged with robberies because those investigations will proceed further and she will be identified, trust me, out of photo line-ups from the witnesses in Victoria, in Abbotsford, and possibly South Surrey – although I haven’t looked deeply into that file yet, that’s why I need to hear from you. I can talk to other Police investigators, Brandon, and I can talk to Crown.

Spencer: Well, do it then.

[Cst. Parker]: But I need to hear your story first.

(Ruling on voir dire, at paras. 16 and 19; Respondent’s Factum, p. 7)

[Cst. Parker]: No, it isn’t, Brandon, because listen. If you went down and talked to her right now you and I know that you simply wanna talk to her, probably to tell her that you love her and that you’re doing the right thing, and you’re keeping her out of the shit. Correct? Exactly. You know that, I know that. And you know that it’s not a promise that I’m making to you, or a guarantee in order . . . like an exchange to get information here that you’re gonna talk about. But unfortunately, it’s a tough issue because the courts could possibly see that as an inducement to get your statement, an incriminating statement. Now you know as well as I do that that’s horse shit, but unfortunately that’s what we’re dealing with. Now what I’m telling you, and I’ll stress again, is you will have an opportunity to talk to her. If at the end of this process, the end of our discussion I’m satisfied you’ve been up front, you’ve cleaned your slate, I will give you that opportunity, I’m promising you that as my word. And I’ve been honest with you from the get go here. But I can’t do it now until some ‘a this stuff is on the table. . . .

Spencer: So what do you want in order for me to talk to her?

[Cst. Parker]: I wanna know exactly what your involvement was in the Tillicum Mall robbery, and . . .

Spencer: And you’ll let me talk to her?

[Cst. Parker]: And I wanna know exactly what your involvement was in the uh . . . Safeway Robbery at Ocean Park. I wanna know everything . . .

[Cst. Parker]: . . . I can’t take your information and statement on these other robberies you’re involved in, if later down the road it’s only gonna be useless in court because it’s interpreted that I gave you an inducement by promising you a conversation with Tanya. It just can’t work that way legally, it’s a problem, I’m telling you that. I’ve been down this road before, where people wanna speak to their . . . significant other in cells.

Spencer: How about I give you one?

[Cst. Parker]: Well it’s a start?

Spencer: Then do I get to see her?

[Cst. Parker]: But I need to clear the slate, that’s what I’m saying. You told me earlier that the plan was gonna be that you clear all these robberies . . .

(Ruling on voir dire, at paras. 23-25)

[Cst. Parker]: . . . but I just need to know one thing Brandon, it’s kind of important to me to know you know with a . . . we . . . we’ve talked a lot I feel like I’ve gotten to know you like . . . like a brother really, over the last however many hours I’ve been speaking to you. I just wanna know . . . like we’ve talked a lot you’ve . . . you’ve unloaded a lot of shit on me in the last however many hours from last night when we talked. And I just wanna know why, why ah . . . why did you decide to talk to me about all these things and clear your slate here with me? What’s your motivation?

Spencer: My girl.

[Cst. Parker]: What’s that?

Spencer: For my girl.

[Cst. Parker]: For your girl. For Tanya.

[Cst. Parker]: Okay. All for her, not for yourself as well? No.

Spencer: Somewhat, mostly for her.

[Cst. Parker]: Mostly for her, okay, fair enough Brandon. You know what I admire that cause that’s . . . Tanya’s important to you, you told before she’s . . . she’s everything to you. You love her to death, she’s the centre of your universe. And I know what that feels like I mean so. You know again . . . big step on your part. So what I’m gonna do Brandon is I’m gonna take you back downstairs.

[Cst. Parker]: You know, do you feel better?

Spencer: Uh uhm.

[Cst. Parker]: Good to get it off your chest, at least somewhat?

[Cst. Parker]: Okay. And what I hope to do Brandon tomorrow is . . . is talk to you further, and even down the road I’d like to keep up and see how you make out. You know you’re . . . you’re quite right tomorrow courts a new thing . . . courts a different thing you’re gonna . . . in all likelihood end up over at Pre-Trial. But that’s just next door to us.

(Appellant’s Record, at pp. 1063-65)