Dec 1, 2014

Confessions - Voluntariness

R. v. Oickle, 2000 SCC 38, [2000] 2 SCR 3

Accused takes a polygraph on arsons at 3pm, told he failed at 5pm. He is questioned at 5pm, given his rights, and told can leave whenever. At 7pm, admitted to 1 fire, then to 6 more at 11pm. The accused was reminded of his rights several times during that period. A written statement taken with warnings repeated. He was placed in a cell at 2:45am. The accused was found awake at 6am and was asked to do a re-enactment, to which he agrees. More warnings were given, and he was advised he could stop at any time. The accused went to multiple locations and described how he set the fires. The accused asked for deal but cop did not agree.

Issue: What are the common law limits on police interrogation?

Iacobucci J held that the confessions rule needs to be restated because of its inconsistent use in lower courts and growing understanding of false confession. The confessions rule should recognize which interrogation techniques commonly produce false confessions. The goal of confessions rule is to protect the rights of accused without unduly limiting society’s need to investigate crimes. Research with mock juries indicates that people find it hard to believe that someone would confess falsely. Iacobucci outlines the five basic kinds of false confessions: voluntary, stress-compliant (to escape interrogation), coerced-compliant (threats and promises – most common type), non-coerced-persuaded (confused, doubt self, temporarily persuaded of own guilt), and coerced-persuaded (threats/promises plus confusion and self-doubt). He states that there is a danger in using fabricated evidence in that it could persuade susceptible suspect or convince him protesting is futile. Further, interrogations should be recorded to capture tone/body language. This (1) allow courts to monitor practices and enforce safeguards, (2) deters police from using techniques likely to lead to untrustworthy confessions, (3) enables courts to make informed judgments, and (4) accords with sound public policy. Rigid categories can’t be used because oppressive conditions, inducements can operate together.

The Confessions rule protects broader conception of voluntariness: focus on protecting accused’s rights, trial fairness. The analysis should be contextual by focusing on the circumstances surrounding the confessions to determine whether there is reasonable doubt to the voluntariness of the confession. Findings on voluntariness are factual and can only be overturned for some palpable and overriding error. Cops can minimize moral but not legal significance of crimes, can’t offer deals, can suggest potential benefits of confession but can’t make offers conditional on confession. Moral inducements are ok, but threats/promises towards 3rd party are improper if relationship strong enough. Cops can’t deny access to food/sleep/water/bathroom and shouldn’t fabricate evidence. It is ok to confront accused w/adverse evidence (e.g. polygraph) or exaggerate its reliability/accuracy.

Sign of involuntariness is emotional disintegration (doesn’t include crying upon confessing). Tactical disadvantage to defence is not relevant to voluntariness of the accused’s confession. What is relevant is the prejudicial effect that is outweighed by immense probative value of a voluntary confession.

The court found that in this case, the confession was voluntary. Cops took care to give warnings and did not deprive the accused of anything.

Arbour J for the dissent stated that the interrogation used improper inducements and the use of polygraph put the accused in an unfair position of having to lead prejudicial, unreliable and inadmissible evidence against himself to impeach veracity of statements.