The leading case to be considered is R. v. Oickle1, a decision of the Supreme Court of Canada. The court considered the application of the confessions rule as necessarily contextual in the sense that hard and fast rules will never be able to account for the variety of circumstances that could vitiate the voluntariness of a confession. The court considered the relevant factors to be included in the consideration are:
threats or promises by the police, including veiled threats or offers of inducement to the suspect
oppression
the requirement that the accused have an operating mind; and
police trickery.
The behaviour of the police becomes improper when the inducements, whether standing alone or in combination with other factors, are considered strong enough to raise a reasonable doubt as to the voluntariness of the confession. Further the court said that an important consideration in every case is to consider whether there has been a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or promise. If the police offer a favour or a vantage in return for a confession, the court may find that the statement is not voluntary.
The court also said Judges should consider whether a suspect has been deprived of food, clothing, water, sleep, or medical attention. Judges must also consider whether the accused was denied proper access to counsel prior to the interrogation.
In assessing circumstances of oppression Judges must consider whether a suspect was questioned aggressively or for a prolonged period. The court offered the opinion that the “operating mind doctrine” only requires that the accused knows what he is saying and that it may be used to his detriment. The operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible.
Trickery used to obtain a confession must also be considered in determining whether a confession is voluntary. Trickery by the police is often a distinct and separate inquiry. While it still may be related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. The court acknowledged that there may be situations in which police trickery, although neither violating the right to silence or undermining the voluntariness of a statement may be so appalling as to shock the community. In such cases the confession should be excluded.
A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Voluntariness is the touchstone of the confessions rule and a useful term to describe the various rationales underlying the rule. Stated broadly, the right to silence reflects the general principle that, absent a statutory or other legal compulsion, no one is required to provide information to the police or other persons in authority, or, to respond to questions.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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