WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
BARRIE COURT FILE NO.: CR-11-0151
DATE: 20120518
A NON-PUBLICATION ORDER IN THIS PROCEEDING HAS BEEN ISSUED UNDER SECTION 486 OF THE CRIMINAL CODE OF CANADA
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.L.
Defendant
C. Trivett, for the Crown
B. Cugelman, for the Defendant
HEARD: April 16, 2012
RULING #3 - ADMISSIBILITY OF STATEMENT
EBERHARD, J.:
[1] The Crown seeks to admit the statement of the accused taken in an interview conducted by D.C. Quesnelle in the Orillia police station August 5, 2010, video and audio taped and reproduced in transcript form for the purposes of the voire dire. The Crown must prove the statement was voluntary.
[2] The Defence resists admission on the grounds that the R.L. asserted his right to remain silent which was ignored and the circumstances of the interrogation deprived him of real choice to speak or remain silent.
[3] I focus on two aspects of the statement circumstances: first whether the circumstances were oppressive in that the accused had no opportunity, or perhaps operating mind, to make a real choice such that his utterances were involuntary and secondly whether the assertion of the right to remain silent should result in exclusion of utterances made thereafter as involuntary
[4] Viewing the video I noted that the interview began in an affable atmosphere between two mature males. I acknowledge immediately that a police interview, for an accused person detained and charged with criminal offences, is patently uncomfortable. There is intimidation inherent in the circumstances. What I was alert to discern was objective[^1] indication that the conduct of D.C. Quesnelle elevated to an intimidation that deprived the accused of his choice to speak or remain silent.
[5] The classic requirements of a statement were present: there was no overt threat or inducement, cautions and right to counsel were given. The interview was relatively short and did not deprive R.L. of any need for sleep, nourishment or health.
[6] For most of the interview D.C. Quesnelle was seated and unimposing. He repeatedly coaxed Mr. L. with appeals to his humanity and confronted Mr. L. with his opinion that the Accused was not being truthful in his denials.
[7] I noted a potentially intimidating reference with D.C. Quesnelle stating:
Like I’m not one of these guys who do an in—… like, uh, one of those things you see on TV--. .where I start yelling at him going you, I know you did it, I know you touched her, I know you fucking did all this shit, I’m not like that, _okay? I’m more, of like, um, a get along guy, like I-.just wanna get along—.and I wanna… and I wanna get you some help.
[8] I noted D.C. Quenelle’s suggestion:
Okay. So what do I do with her now? Do I charge her with public mischief for lying to me?” which could sound menacing.
[9] Having alerted myself to possible intimidation in such technique, I assessed whether they had that effect objectively. I find as a fact that during that phase of the interview neither the persistent questioning and confrontation, nor the circumstances of the interview rose to oppression. I assessed the apparent effect of the total circumstances on R.L.. He did not appear nor did he speak as though he was fearful of physical intimidation.
[10] I assessed the impact of the method of questioning by appealing to R.L.’s humanity on one hand and D.C. Quesnelle repeatedly stating that he did not believe him and saying he was lying. This did not rise to rudeness or hostility. R.L. rose to the bait. He spoke but did not blurt out confession or show any sign of his will being overborne. He denied and engaged in response to D.C. Quesnelle’s assertions.
[11] During that phase the accused made an exculpatory utterance which, because of its reference to details that are part of the prosecution’s assertions of fact, may have inculpatory effect. During that phase I find no conduct that was objectively threatening nor did I observe any sign that the accused was afraid of D.C. Quesnelle, that he lost his operating mind or was deprived of choice by being overborne.
[12] Later, D.C. Quesnelle returned to the interview room and remained standing. His hand was casually in his pocket where his cell phone had earlier rung. At one point he pointed his finger at the accused in the manner of one making a point in an argument.
[13] Though the level of confrontation was somewhat elevated during this phase, it amounted to a diatribe by the officer which R.L. effectively resisted. The officer sat down. No further utterances of note were made and when R.L. once again asserted his right to remain silent the interview ended.
[14] Objectively, though the conduct was more intimidating, R.L. clearly did not succumb to the more insistent tone or the more imposing physical stance taken by the officer. No involuntary statement resulted.
[15] The defence cites classic discussions of “oppression” that may render a statement involuntary:
53 The Ibrahim rule speaks not only of "hope of advantage", but also of "fear of prejudice". Obviously, any confession that is the product of outright violence is involuntary and unreliable, and therefore inadmissible. More common, and more challenging judicially, are the more subtle, veiled threats that can be used against suspects. The Honourable Fred Kaufman, in the third edition of [page35] The Admissibility of Confessions (1979), at p. 230, provides a useful starting point:
Threats come in all shapes and sizes. Among the most common are words to the effect that "it would be better" to tell, implying thereby that dire consequences might flow from a refusal to talk. Maule J. recognized this fact, and said that "there can be no doubt that such words, if spoken by a competent person, have been held to exclude a confession at least 500 times" (R. v. Garner (1848), 3 Cox C.C. 175, at p. 177).
Courts have accordingly excluded confessions made in response to police suggestions that it would be better if they confessed. See R. v. Desmeules, 1971 CanLII 864 (QC CQ), [1971] R.L. 505 (Que. Ct. Sess. P.); Comeau v. The Queen (1961), 1961 CanLII 528 (NS SC), 131 C.C.C. 139 (N.S.S.C.); Lazure, supra; R. v. Hanlon (1958), 1958 CanLII 442 (NL SC), 28 C.R. 398 (Nfld. C.A.), at p. 401; White, supra, at p. 129.
54 However, phrases like "it would be better if you told the truth" should not automatically require exclusion. Instead, as in all cases, the trial judge must examine the entire context of the confession, and ask whether there is a reasonable doubt that the resulting confession was involuntary. Freedman C.J.M. applied this approach correctly in R. v. Puffer (1976), 1976 CanLII 1316 (MB CA), 31 C.C.C. (2d) 81 (Man. C.A.). In that case a suspect in a robbery and murder asked to meet with two police officers of his acquaintance. At this meeting, one officer said: "The best thing you can do is come in with us and tell the truth" (p. 95). Freedman C.J.M. held that while the officer's language was "unfortunate", it did not require exclusion (at p. 95): "McFall wanted to talk, he wanted to give the police his version of what had occurred, and above all he did not want [page36] Puffer and Kizyma to get away, leaving him to face the music alone" (emphasis in original).
55 In his reasons, Freedman C.J.M. referred to a passage from an article he had written earlier, "Admissions and Confessions", published in Salhany and Carter, eds., Studies in Canadian Criminal Evidence (1972), at pp. 110-11, where he stated the following:
Risky though it be for a policeman to use words like "better tell us everything"-- and an experienced and conscientious officer will shun them like the plague -- their consequences will not always be fatal. There have been some instances where words of that type have been employed, and yet a confession following thereon has been admitted. That may occur when the court is satisfied that the offending words, potentially perilous though they be, did not in fact induce the accused to speak. In other words, he would have confessed in any event, the court's enquiry on the point establishing that his statement was indeed voluntarily made. It is scarcely necessary to emphasize, however, that cases of the kind just mentioned will confront a prosecuting counsel with special difficulty. For words like "better tell the truth" carry the mark of an inducement on their very face, and a resultant confession may well find itself battling against the stream.
This Court upheld the Court of Appeal's ruling. See McFall v. The Queen, 1979 CanLII 176 (SCC), [1980] 1 S.C.R. 321; see also R. v. Hayes (1982), 1982 ABCA 30, 65 C.C.C. (2d) 294 (Alta. C.A.), at pp. 296-97. I agree that "it would be better" comments require exclusion only where the circumstances reveal an implicit threat or promise.
56 A final threat or promise relevant to this appeal is the use of moral or spiritual inducements. These inducements will generally not produce an involuntary confession, for the very simple reason that the inducement offered is not in the control of the police officers. If a police officer says "If you don't confess, you'll spend the rest of your life in jail. Tell me what happened and I can get you a lighter sentence", then clearly there is a strong, and improper, inducement for the suspect to confess. [page37] The officer is offering a quid pro quo, and it 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. By contrast, with most spiritual inducements the interrogator has no control over the suggested benefit. If a police officer convinces a suspect that he will feel better if he confesses, the officer has not offered anything. I therefore agree with Kaufman, supra, who summarized the jurisprudence as follows at p. 186:
We may therefore conclude that, as a general rule, confessions which result from spiritual exhortations or appeals to conscience and morality, are admissible in evidence, whether urged by a person in authority or by someone else. [Emphasis in original.]
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 [page38] 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.
Oppression
58 There was much debate among the parties, interveners, and courts below over the relevance of "oppression" to the confessions rule. Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect's will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.
59 A compelling example of oppression comes from the Ontario Court of Appeal's recent decision in R. v. Hoilett (1999), 1999 CanLII 3740 (ON CA), 136 C.C.C. (3d) 449. The accused, charged with sexual assault, was arrested at 11:25 p.m. while under the influence of crack cocaine and alcohol. After two hours in a cell, two officers removed his clothes for forensic testing. He was left naked in a cold cell containing only a metal bunk to sit on. The bunk was so cold he had to stand up. One and one-half hours later, he was provided with some light clothes, but no underwear and ill-fitting shoes. Shortly thereafter, at about 3:00 a.m., he was awakened for the purpose of interviewing. In the course of the interrogation, the accused nodded off to sleep at least five times. [page39] He requested warmer clothes and a tissue to wipe his nose, both of which were refused. While he admitted knowing that he did not have to talk, and that the officers had made no explicit threats or promises, he hoped that if he talked to the police they would give him some warm clothes and cease the interrogation.
60 Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary. For similar examples of oppressive circumstances, see R. v. Owen (1983), 1983 CanLII 3604 (NS CA), 4 C.C.C. (3d) 538 (N.S.S.C., App. Div.); R. v. Serack, 1973 CanLII 1664 (BC SC), [1974] 2 W.W.R. 377 (B.C.S.C.). Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.
61 A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous: see Ofshe & Leo (1997a), supra, at pp. 1040-41; Ofshe & Leo (1997), supra, at p. 202. The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary.
62 England has also recognized the role of oppression. Section 76(8) of the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, states that a confession must not be the product of "oppression", which is defined to include "torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)". The Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers goes on to offer examples of what may amount to oppression, which are similar to what I described above.
[16] The defence submitted that “making utterances that he wouldn’t otherwise have made” should be substituted for “confessions” in this discussion. The defence acknowledged that a lot of the references in these paragraphs are to inhumane conditions but picks out the emphasized reference to, intimidating questioning for a prolonged period of time.
[17] The defence cited Regina v. McGuire 1970 CanLII 341 (ON SC), [1971] 1 O.R. 647-657 [CJ] acknowledging that these were not our facts but the principle is the same:
Where the circumstances under which a statement is taken from an accused are such as to put a fear in his mind and to create an atmosphere of compulsion to talk, and where it has not been proved that such atmosphere was ever removed, a statement taken under those conditions should not be admitted into evidence.. Where, after the signing of a first statement there is a “discussion” which amounts to an interrogation upon the contents of the statement and the implication that the accused is lying and an atmosphere of compulsion is shown which would increase the former atmosphere of compulsion, a second statement taken under those circumstances will not be admitted as being voluntary.
The Supreme Court of Canada in the recent decision of Piche v. The Queen, which is as yet unreported [since reported 1970 CanLII 182 (SCC), [1970] 4 C.C.C. 27, 11 D.L.R. (3d) 700, 12 C.R.N.S. 222], reaffirms a statement made by the late Rand, J., in the famous Boudreau case. Rand, J., said in Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262 at pp. 269-70, 94 C.C.C. 1 at p. 8:
What the statement should be is that of a man free in volition from the compulsions or inducements of authority and what is sought is assurance that that is the case. I do not have that assurance in this case.
High authority has more than once pointed out the likelihood that the very fact of apprehension and custody can in some cases cause apprehension and, indeed, almost act as a compulsion to talk. I briefly refer again to the decision of Rand, J., in the Boudreau case at p. 269 S.C.R., p. 8 C.C.C., I am not going to quote it in detail.
There is a similar reference in the judgment of Rand, J., in R. v. Fitton, 1956 CanLII 28 (SCC), [1956] S.C.R. 958 at p. 962, 116 C.C.C. 1 at p. 5, 6 D.L.R. (2d) 529.
In this case there are circumstances which, in my view, when looked at from the point of view of the accused, must have put great fear in his mind and must have created an atmosphere of compulsion to talk. It has not been proved to my reasonable satisfaction that such atmosphere was ever removed.
The circumstances among others that I consider particularly significant are the apprehension of the accused, the placing in custody, keeping him locked up in a cell, the absence of clothes and shoes for many hours through the day, the interrogation, the inducement or the possible inducement with respect to the request for a psychiatrist, the lack of caution before ex. A was taken.
[18] Having submitted that the interview suggesting the Accused was lying about Viagra and “drums beating out the tune and long diatribes amounted to a cross-examination”, the defence cited R v. Howlett 1950 CanLII 103 (ON CA), 96 C.C.C. 182 OCA
A confession by an accused is inadmissible unless proved to have been voluntary; and the mere fact that he concludes his statement by denying that he had received any threat or promise to induce its making is immaterial where on the evidence his statement followed persistent cross-examination by a police officer over a three-hour period during which such officer made repeated accusations that accused had committed the offence and where accused during this period was constantly attended by the police. A statement made under such circumstances is not voluntary and the fact that a caution preceded it does not make it admissible.
[19] It was submitted that after a friendly start the accused was trying to be co-operative in what, for average citizen, is a very intimidating stressful experience, with a serious accusation, in a room with officer, having earlier been cuffed.
[20] The defence suggests that admission of the statement after prolonged questioning in R v Reyat (B.C.C.A.) [1993] B.C.J. No. 622 BCCA provides an interesting comparison because in that case of prolonged questioning in the form of cross-ex, it appears it was done in a fashion which accused was prepared to talk, that he made comments then police confronted him with untruth and accused giving another version.
68 In considering this question it is necessary to keep in mind not just the actual words used by the officers, but also the cumulative effect of what was said in the circumstances and interviews the accused made or indicated a y clear choice or willingness to speak to the police and it must be assumed that that continued in the absence of any suggestion of oppression. To that I would add that this case is unusual because of the pattern of the accused’s professions of willingness to tell the truth but then denying known facts, and then admitting them. The dynamic of this interview was quite different from most interrogations.
[21] The defence submits that the professed willingness to talk was a significant distinction driving the ultimate outcome.
[22] Having considered and compared the circumstances of the cases cited by the defence, the principles, bolded for emphasis, that impact on the circumstances of Mr. L.’s statement, I am not persuaded that oppression manifested in this interview. Objectively viewed, the circumstances were not oppressive.
[23] Next I turn to the assertion of right to remain silent itself. There were several occasions:
[24] At page 39 of the transcript:
RL: I have never touched that child and I am not gonna say anymore on—
DCQ: Okay.
The advice of my la—
DCQ: Have you ever had her perform fellatio on you?
[25] D.C. Quesnelle disagreed that he interrupted R.L.. He testified they were in conversation, that R.L. may not have got “lawyer” out. We both kept on.
[26] I find that although there was this early partial assertion, in the interchange basically both R.L. and D.C. Quesnelle were talking at the same time. Both continued to talk. It did not rise to an ignored assertion of the right attracting concern.
Page 46:
DCQ: Right? Um, but I think it’s time for you to kinda stand up and… and tell the truth.
RL: I am telling you the truth.
D.C. Quesnelle: But you’re not, that’s the thing.
RL: But I am, and on… on the advice of my attorney I’m not gonna say no more.
DCQ: Okay, you don’t have to say anything, you can hear me out then for a bit, alright?.She’s alleged that you’ve forced her to give her a blowjob, fellatio, she’s alleged that on numerous occasions that you’ve touched her vaginal area, she’s alleged that you’ve tried to have anal intercourse with her, okay, right? And I wanna… you wanna know why I believe her? Yes or no, you can ans-
RL: Yeah, yes I do, sorry, yes.
[27] I find D.C. Quesnelle expressly acknowledged hearing the assertion of right to remain silent but went on with his own narrative into which R.L. was eventually drawn. R.L. appears to be an affable chap and he appears drawn to respond by a natural politeness.
[28] Thirdly at page 53 D.C. Quesnelle is encouraging R.L. to speak by projecting empathy for his situation and appealing to his humanity:
DCQ: And like, hold on, hear me out you’re trying to block it out and you just don’t want to admit it, right?
RL: Not that I know of.
DCQ: No, but you are, Ron, right? I’m trying… all as I’m asking you is to be a man. You’ve been a man from day one, you stood up and you took foster care… kids in, you did the right thing.
RL: Well on the advi-
DCQ: I’m just asking you to do the right thing right now.
RL: On the advice of my lawyer I’m not saying nothing else , I’m sorry
DCQ: So you’re gonna let this sit.
RL: ‘Cuz it can be used against me in a Court of Law and like, you know, like I’d sooner talk to an attorney if I could,
DCQ: Yeah, you can talk to a lawyer again, but in the bigger picture of things, right, a man who’s done the right thing for the… for-
RL: I’ll all..
DCQ: for the whole time..
RL: I‘ll always do the right thing…
[29] Then follows further encouragement and narrative form the officer which re-engages the accused in unremarkable conversation once again. D.C. Quesnelle appeals again to Mr. L. again at page 60:
DCQ: What I’m asking you to do is to try and give her some type of closure on this, right, to admit to the truth.
RL: I’m not…I…I…I …I refuse to say anymore on the advice of my lawyer.
DCQ: Okay, and that’s from duty counsel?
RL: That’s from duty counsel, that’s exactly what he told me to say and that’s what I’m going to do
DCQ: Okay, alright, so you’re gonna be charged with, urn, sexual assault and some other offences, sexual interference. J have to go through her statement again, um, and figure out what all the charges are. I will let you know what they are.
[30] That time the assertion of the right to remain silent ended D.C. Quesnelle’s attempts to finesse more. He leaves.
[31] Finally, on D.C. Quesnelle’s return to the interview room, after a lengthy lecture to R.L. on what the officer see’s as an inculpatory portion of the previous utterances, he says:
DCQ: I’m just… I’m… I’m appealing to your humanity.
RL: I’m… I… I… I just gonna wait ‘til I speak to a lawyer
DCQ: Okay. Did you wanna call one right now?
RL: I don’t know of one to call. DCQ: Well I could call duty counsel back again I can… I’ll put you back in the cell, I can call duty counsel again
RL: No, on the advice of a lawyer… on the advice of duty counsel I’ll wait ‘til I can retain a lawyer.
DCQ: Okay. It’s um 7:50. I’m gonna put you back in the cell, okay? Come on.
[32] Again, at the assertion of the right to silence D.C. Quesnelle stopped.
[33] I find therefore that there were two operative attempts to assert the right to remain silent which did not cause the officer to immediately cease the interview. Rather, he acknowledged the assertion, carried on with narrative or information or opinion all to the purpose of re-engaging the subject in conversation. These techniques succeeded and R.L. began to comment again.
[34] The defence cites cases of historical significance in the development of the law relating to questioning an accused when the right to remain silent is asserted. R. v. Darrach 2000 SCC 46, [2000] S.C.J. No. 46 (S.C.C.); R. v. Antonelli [2011] O.J. No. 4661 (S.C.J.); R. v. McGuire (1971) O.R. 647 (O.H.C.) 5; Rex V. Howlett (1950) 1950 CanLII 103 (ON CA), 96 C.C.C. 182 (O.C.A.); R. v. G.C. 1983 CanLII 5306 (ON SC), [1983] O.J. No. 2410 (Ont. Co. Ct.); R. v. Reyat (B.C.C.A.) [1993] B.C.J. No. 622.
[35] These cases inform the leading case of R. v. Singh 2007 SCC 48, [2007] S.C.J. No. 48 (S.C.C.) which analyzes the s7 Charter right to remain silent in the context of the common law voluntariness criteria.
[36] In R. v Oickle 2000 SCC 38, [2000] S.C.J. No. 38 reviewed the common law factors: no threats or promises; oppression; operating mind and police trickery; noting
47 The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. 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.
[37] Singh builds on the Oickle reasoning:
35 Ten years later, this Court in Oickle made express reference to the analysis in Hebert and embraced this modern expansive view of the confessions rule which, significantly for our purposes, clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities: see paras. 24-26. Iacobucci J. then reviewed the various components of the contemporary confessions rule, stressing, of course, that "[t]he application of the rule will by necessity be contextual" and that "all the relevant factors" must be considered (para. 47). He went on to describe the more common circumstances that vitiate the voluntariness of a confessions using the well-known headings: (a) threats or promises, (b) oppression, and (c) operating mind. In keeping with the broader modern approach to the confessions rule, he also added a final consideration in determining whether a confession is voluntary or not - the police use of trickery to obtain a confession that would "shock the community" (para. 66). He explained that: "Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system" (para. 65). Finally, it is noteworthy that, in summarizing the parameters of the confessions rule, Iacobucci J. made express reference to the right to silence as a relevant facet of the rule:
The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. [Emphasis added; para. 69.]
36 On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the suspect's ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test.
37 Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well.
[38] The Singh court emphasized:
44……However, under Mr. Singh's suggested approach, any statement obtained after the suspect asserts his right to silence would be of questionable admissibility, regardless of whether there is a causal nexus between the conduct of the police and the making of the statement.
45 More importantly, Mr. Singh's proposition ignores the state interest in the effective investigation of crime. The Court in Hebert stressed the importance of achieving a proper balance between the individual's right to choose whether to speak to the authorities and society's interest in uncovering the truth in crime investigations. As I stated earlier, the suspect may be the most fruitful source of information. While the fact of detention unquestionably triggers the need for additional checks on police interrogation techniques because of the greater vulnerability of the detainee, the moment of detention does nothing to reduce the suspect's value as an important source of information. Provided that the detainee's rights are adequately protected, including the freedom to choose whether to speak or not, it is in society's interest that the police attempt to tap this valuable source. The Court in Hebert said the following on the critical importance of achieving a balance between individual and societal interests:
The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute -- in the first case because the state has improperly used its superior power against the individual, in the second because the state's legitimate interest in law enforcement has been frustrated without proper justification. [Emphasis added; p. 180.]
46 Hebert therefore set out the parameters of the s. 7 Charter right to silence to achieve this balance. Some of the limits set out by the Court were responsive to the particular facts in Hebert and, consequently, are only relevant to the situation where a detainee is interrogated by an undercover officer. They need not be repeated here. Of relevance in this case are the first two limits. I reproduce the relevant excerpts here:
First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.
Second, it applies only after detention. Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee's rights are respected. [Emphasis added; p. 184.]
47 Mr. Singh takes particular issue with the leeway afforded to the police in questioning the detainee, even after he has retained counsel and has asserted his choice to remain silent. He submits that courts have erroneously interpreted the underlined passage above as permitting the police to ignore a detainee's expressed wish to remain silent and to use "legitimate means of persuasion". I say two things in response to this argument. First, the use of legitimate means of persuasion is indeed permitted under the present rule - it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee's freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct. (my emphasis)
[39] D.C. Quesnelle testified it was his understanding that it not good enough to take denial and walk away.
[40] Earlier in this ruling I found that the circumstances were not oppressive. In the two occasions when R.L. asserted the right to remain silent, he was drawn back in to conversations not by threat or promise, not by oppression, not by trickery that the community would find unfair, but by D.C. Quesnelle continuing to talk. R.L. re-engaged. He exercised his free will to speak. This was “police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, which does not breach the right to silence.”
[41] Accordingly, having considered that denial of a assertion of the right to remain silent “may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities” I find that none of the factors in Oickle having been breached. The statement was voluntary and will be admitted into evidence.
EBERHARD J.
Released: May 18, 2012
[^1]: R v. Herbert, [1990] 2 S.C.R. 869; Van Haarlem (1991), 1991 CanLII 507 (BC CA), 64 CCC (3d) 543 (B.C.C.A.); affd [199211 S.C.R. 982.