Canadian Criminal Evidence/Admissions and Confessions/Confessions

General Principles

A confession is a written or oral statement by the accused to a person in authority that admits a factual element to the Crown's case. The law regarding confessions applies equally to inculpatory statements as well as exculpatory statements. Confessions are admissible where they are sufficiently reliable.

All confessions must be voluntary to be admissible. ^[1] This is the court's key concern.^[2] When it is not voluntary is it not reliable and so is not admissible in evidence.^[3]

This Crown must prove voluntariness beyond a reasonable doubt in a voir dire.^[4]

The issue of voluntariness of an unrecorded statement depends on the circumstances.^[5]

There is no requirement that the statement be recorded to be admissible as voluntary.^[6]

The confession must be given sufficient context background to be admissible. If the statement is too vague and the context of the statement could have multiple meanings, it should not be admitted.^[7] However, vagueness on the exact wordings of the statement without loss of meaning is not sufficient.^[8]

Where the statement was not recorded under suspicious circumstances, such as where recording facilities were readily available, the judge must determine "whether or not a sufficient substitute for an audio or video tape record has been provided ... to prove voluntariness beyond a reasonable doubt."^[9] The "completeness, accuracy and reliability of the record have everything to do with the court's inquiry into and scrutiny of the circumstances surrounding the taking of the statement."^[10] The court in R. v. Moore-McFarlane, commented that "it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed." (at para 67).

↑ R. v. Piche, [1971] SCR 23 1970 CanLII 82;
↑ Oickle at 47
↑ see Horvath, at p. 408
↑ R. v. Moore-McFarlane, [2001] O.J. No. 4646 (C.A.), 2001 CanLII 6363 at paras. 65 and 67
R. v. Ahmed, [2002] O.J. No. 4597 (C.A.), 2002 CanLII 695 at para. 22
↑ R. v. Swank 2005 CanLII 3326 (ON CA), (2005), 194 O.A.C. 155, [2005] O.J. No. 493 (C.A.) at para. 9
↑ Moore-McFarlane at para. 64
↑ R. v. Ferris, 1994 ABCA 20 - no context of statement "I killed David", could have been "The police think I killed David, but I didn’t."
↑ R. v. Bennight, 2012 BCCA 190 at para 92
R. v. Kennealy (1972), 6 C.C.C. (2d) 390 (B.C.C.A.) at 394-95
R. v. Richards 1997 CanLII 12470 (BC CA), (1997), 87 B.C.A.C. 21, 6 C.R. (5th) 154 (C.A.) at para. 31
↑ R. v. Moore-McFarlane at para 65
↑ R. v. Moore-McFarlane at para 65
adopted in see Ahmed
R. v. Burke, 2010 ONSC 6530 (CanLII), 2010 ONSC 6530, [2010] O.J. No. 5219

Persons in authority

A confession includes statements made merely in the presence of a person in authority as long as the Accused was aware of their presence. ^[1]

↑ R. v. Matchette (1946) 87 CCC 46 (NBCA)

Voir Dire

A voir dire on the admissibility of a statement to a person in authority requires the judge to determine:^[1]

whether there is some evidence that it was made; and
whether it was given voluntarily.

The voir dire should generally be held as part of the Crown's case regardless of whether the statement is only to be used for cross-examination. There are circumstances where the voluntariness can be proven at the time of cross-examination of the accused.^[2]

Where the accused denies the statement, the voir dire is not to determine whether the statement was actually made beyond a reasonable doubt. The issue of whether the statement was made for the purpose of trial is determined after the voir dire.^[3]

In the voir dire, the judge only needs to have "some credible evidence" that the statement was made.^[4]

↑ R. v. Gauthier, 1975 CanLII 193 (SCC), [1977] 1 S.C.R. 441 (S.C.C.)
↑ e.g. R v Drake [1971] 1 CCC (2d) 396
↑ R. v. Mohamed, 2012 ONSC 1784 at para 13
↑ R. v. Lapointe, (1983), 9 C.C.C. (3d) 366 (Ont. C.A.) at para. 39
Mohamed at para 13

Derived Confessions

Confessions that follow an inadmissible involuntary confession may also be excluded from evidence as a derived confession. ^[1]

The judge must consider the connection between the statements and the influence the improper conduct had on the derived confession, taking into account all relevant circumstances including:^[2]

the time span between the statements;
advertence to the earlier statement during questioning in the subsequent interview;
discovery of additional information after completion of the first statement;
the presence of the same police officers during both interviews; and
other similarities between the two sets of circumstances.

The derived statement will be involuntary if "the tainting features that disqualified the first continue to be present" or if "the fact that the first statement was made was a substantial factor that contributed to the making of the second statement".^[3] All of this is to the view of whether the derived statement was contaminated by the first statement.^[4]

Connection between statements includes a temporal, contextual and causal connection.^[5]

Contamination is not limited to involuntariness but also to Charter breaches such as the right to counsel under s. 10(b) of the Charter. In such cases, the admissibility is based on s. 24(2) of the Charter.^[6]

A secondary caution or warning can be a major factor in eliminating any contamination that a previous involuntary statement would have on a subsequent derived statement.^[7]

↑ R. v. I (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, at p. 526; and R. v. Hobbins, 1982 CanLII 46 (SCC), [1982] 1 S.C.R. 553, at p. 558
↑ R. v. M.D., 2012 ONCA 841 (CanLII) at para. 54
T(E) at p. 526
Hobbins at p.558
R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 S.C.R. 475, at para. 21
↑ MD at para. 55
T. (E.), at p. 526
G. (B.), at paras. 21 and 23
↑ MD at para. 55 and G(B) at para. 23
↑ MD at para. 56
R. v. Plaha 2004 CanLII 21043 (ON CA) at para. 46
↑ R. v. Wittwer, 2008 SCC 33 (CanLII), [2008] 2 S.C.R. 235, at para. 21
Plaha, at paras. 42-45
↑ R. v. Whittle, (1992), 78 C.C.C (3d) 49 (Ont. C.A.) appealed on other grounds
R. v. Lehman, 2000 ABPC 43 at para. 62(CanLII)

Use of a Confession

A confession that is found to be admissible may be used by the Crown to be admitted as part of its case for the truth of its contents as a hearsay exception or it may be held for cross-examination purposes.^[1]

If the Crown introduces the as part of its case, the parts favourable to the defence also become admissible.^[2] The trier-of-fact however determines what part of the statement to accept as fact.^[3]

The rule requiring the admission of the whole statement, however, cannot be used to force the Crown to adduce all statements made by the accused. The rule should not be allowed to be used by defence to avoid subjecting the accused to cross-examination, challenges to credibility.^[4] The exception to the hearsay rule permitting admission is based on the reliability of statements of guilt. Exculpatory statements are self-serving and so are not considered as reliable.^[5]

↑ R v Krause [1986] 2 SCR 466 - court had no problem with crown holding back statement for cross
↑ R v Belander (1975) 24 CCC (3d) 437 (ONCA)
R v Jackson (1980) 57 CCC (2d) 154 (ONCA)
R. v. Lynch, (1988), 30 O.A.C. 49 (Ont. C.A.) ("...[the confession] became evidence for the accused as well as against him and that it was open to the jury to consider those statements as proof of the facts contained therein.") R v Allison (1991) 68 CCC (3d) 375 (BCCA)
↑ R. v. Humphrey, 2003 CanLII 6855 (ON CA) at para. 19
The King v. Hughes, 1942 CanLII 22 (SCC), [1942] SCR 517 citing R v Higgins
↑ R v Fredrick, (1931) 57 CCC 340 (BCCA) at p. 342
↑ See Sopinka, The Law of Evidence in Canada, 2nd Ed. at ss. 8.94

Young Offenders

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

s.146
...
When statements are admissible
(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless

(a) the statement was voluntary;

(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that
(i) the young person is under no obligation to make a statement,

(ii) any statement made by the young person may be used as evidence in proceedings against him or her,

(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;

(c) the young person has, before the statement was made, been given a reasonable opportunity to consult
(i) with counsel, and

(ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and

(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

Marginal note:Exception in certain cases for oral statements
(3) The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

– CCC