Most statements made by an accused subsequent to his arrest are statements made to the investigating police officers or others involved in the investigation and prosecution of crime. Prosecutors rely upon admissions or confessions by the accused subsequent to arrest to assist them in convicting the accused of whatever crimes are alleged. Police officers and Crown attorneys are considered to be “in authority” over the accused and therefore our courts treat any admissions or confessions as inadmissible unless or until they are demonstrated by the prosecution to be voluntary.
At common law, all statements made to a person in authority must be proven to be voluntary before they are admissible at trial. This is known as the “confessions rule.” The determination of whether a statement to a person in authority is admissible is determined on a voir dire, a hearing within the trial proper, presided over by the trial Judge, but in the absence of the jury. Whatever admission or confession was made is not admissible unless or until the prosecutor proves that the statement, confession, or admission is voluntary.
The application of the confessions rule is, of necessity, contextual. When considering evidence of a confession and determining its admissibility or inadmissibility the trial Judge must consider all the circumstances and relevant factors of how the accused was treated by persons in authority, whether he was given an opportunity to consult with counsel before providing the statement, and any other relevant circumstances to allow the presiding Judge to determine if the confession or admission was voluntary. The relevant factors include:
- threats or promises.
- oppression.
- whether the accused was functioning with an operating mind (alcohol, drugs, psychiatric condition).
- police trickery (lies, misleading information, imminent threats, torture).
- any other factor that may induce an “involuntary” admission or confession.
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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