Statements and Confessions

1. Statements and Confessions • RIGHTS OF THE ACCUSED • Charter rights • Confessions rule

2. What’s the difference between a statement and a confession? Statement: Any verbal communication that might implicate a suspect’s involvement in a crime. (Saying, “I always hated that guy!” or “I wasn’t even there that night!” when it is not public knowledge that the crime took place at night.) Confession: A full admission of all material facts that are necessary to prove each element of the offence and any partial admission of one or more of the material facts that assists in proving the accused’s guilt.

3. Right to Remain Silent Established under the Charter of Rights and Freedoms, *there is no specific wording saying a right to remain silent but can be inferred in the following: Legal Rights, section 11(c) s. 11. Any person charged with an offence has the right: c) not to be compelled to be a witness in proceedings against that person in respect of the offence s. 7. “the right to life, liberty, and security of the person.”

4. The Right to Remain Silent is Not Iron Clad! In November of 2007, the Supreme Court ruled 5-4 against the appeal from Jagrup Singh of his 2002 conviction for second-degree murder. The case revolved around the question of whether police breached Singh's right to remain silent when they persisted in questioning him about a shooting, even though he repeatedly made it clear that he didn't want to talk. Justice Louise Charron wrote in her majority opinion: “It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police.” In other words, a citizen can exercise his right to remain silent, but the state can try to change that citizen’s mind!

5. The Confessions Rule Established in English case law, the definitive statement of this rule of law came in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609: It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

6. Twin Goals of the Confessions Rule: i. Protecting rights of accused ii. without unduly limiting society's need to investigate and solve crimes

7. Canadian Confessions Rule The Canadian confessions rule requires the Crown to prove beyond a reasonable doubt that any statement by an accused to a person in authority was made voluntarily before the statement may be used for any purpose at trial. This rule was reinforced in by the Supreme Court in R. v.Oickle, 2000.

8. How does the Confessions Rule differs from Charter rights? The confessions rule and the Charter rights differ in three respects: 1. The confessions rule has a broader scope of application than the Charter. • The confessions rule applies whenever a person in authority questions a suspect. • However, s. 10 of the Charter, for example, applies only on “arrest or detention.”

9. How does the Confessions Rule differs from Charter rights? 2. The burden and standard of proof is different. • Under the confessions rule the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary. • However, under the Charter the burden is on the accused to show, on a balance of probabilities, that a violation of the defendant’s constitutional rights has occurred.

10. How does the Confessions Rule differs from Charter rights? 3. The remedies are different. • A violation of the confessions rule always warrants exclusion of the confession. • However, a violation of a Charter right warrants exclusion only if the admitting evidence would bring the administration of justice into disrepute.

11. R. v. Oickle THE CONFESSIONS RULE The Case Richard Oickle was under investigation by police for a series of fires. He voluntarily underwent a polygraph test. The police told him he had failed and began to question him. He eventually confessed to starting the fires. Oickle was told he was under arrest and brought to the police station for further questioning. He was put in a cell near 3am, around 9 hours after his confession. The police talked to him again at 6am asking him to provide a re-enactment, which he did.

12. R. v. Oickle THE DECISIONS • At trial he was convicted of arson. • The Court of Appeal found that the confession was inadmissible and overturned the conviction. • Supreme Court found confession admissable • Though Charter rights remain in force for confessions made while in custody, the common law rule still applies in all circumstances. • The majority outlined factors to determine whether a confession is voluntary.

13. Factors To Determine if Confession is Admissable Justice Iacobucci, writing for the majority, found that the confession was admissible. He stated the factors that should be used to determine whether a confession is voluntary. 1) the court must consider whether the police made any threats or promises. 2) the court must look for oppression. That is, where there is distasteful or inhumane conduct that would amount to an involuntary confession. 3) the court must consider whether the suspect has an operating mind. The suspect is sufficiently aware of what he or she is saying and who they are saying it to. 4) the court can consider the degree of police trickery. While trickery in general is allowed it cannot go so far as to "shocks the community"