Supreme Court of Canada
Rothman v. R., [1981] 1
S.C.R. 640
Date: 1981-03-02
Robert Rothman (Plaintiff)
Appellant;
and
Her Majesty The Queen (Defendant)
Respondent.
1980: May 5; 1981: March 2.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz,
Estey, Mclntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Admissibility of confession—Whether disguised
police officer a “person in authority”—Whether confession voluntary—Voir dire.
The appellant was charged with possession of cannabis resin
for the purpose of trafficking. The issue before the Court concerns the
admissibility of a confession which the Crown sought to put in evidence at
trial. The appellant was arrested, given a police warning and prior to being
lodged in a cell, was asked if he would give a statement, and he declined to do
so. Hours later, a constable acting in an undercover capacity was placed in the
same cell in order to obtain information from the appellant. He did not
identify himself as a police officer and the appellant did not appear to
recognize him as such. The officer told the appellant he was a truck driver,
detained for a traffic violation. During a conversation the appellant made a
statement to the officer which the Crown attempted to introduce in evidence.
After a voir dire, the trial judge ruled that in the
circumstances the undercover policeman was a “person in authority”, that the
statement had been improperly elicited, and was therefore inadmissible.
A majority of the Court of Appeal disagreed with the trial
judge and ordered a new trial.
Held (Laskin C.J. and Estey J. dissenting): The appeal
should be dismissed.
Per Martland, Ritchie, Dickson, Beetz, Mclntyre and
Chouinard JJ.: This case should be decided in the context of the special rules
which have evolved in respect of evidence which has been obtained by way of a
confession. The principle applicable is that no statement made by an accused
person to a person in authority 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.
[Page 641]
The first issue is whether the constable was a “person in
authority”. Both parties agreed that the test to be applied is a subjective
test, i.e. did the appellant, when he made his statement, believe that
the constable was a person in authority. There is no evidence whatever that the
appellant believed the constable to be a person in authority. The confession is
therefore in the same position as if it had been made to someone other than a
police officer and it was an error of law to refuse to receive it. The
privilege against self incrimination is not relevant in the circumstances of
this case, for there was no attempt by anyone to compel the appellant to make
the disclosure which he did make.
The second issue is whether the confession, even on the
assumption that the constable was a person in authority, was voluntary.
Confessions can be excluded, although there had been no fear of prejudice or
hope of advantage held out by a person in authority, where there exists a
reasonable doubt as to whether the confession in question was “the utterance of
an operating mind”. There is no allegation here that the mind of the accused
was affected by the actions of the police officer. His statement was made
freely and it was volunteered by him.
Per Lamer J.: The confession rule is predicated upon a
rule of law and one of prudence: the right for an accused not to be compelled
as a witness at his trial, and the protection of the criminal justice system.
The rules regarding the admissibility of statements by an
accused to persons in authority may be enunciated in the following manner:
1. A statement is inadmissible unless the judge is satisfied
beyond a reasonable doubt that nothing said or done by any person in authority
could have induced the accused to make a statement which was or might be
untrue;
2. A statement, though elicited under circumstances which
would not render it inadmissible, shall nevertheless be excluded if its use in
the proceedings would, as a result of what was said or done by any person in
authority in eliciting the statement, bring the administration of justice into
disrepute.
That second portion of the rule is not a true discretion.
There first must be a clear connection between the obtaining of the statement
and the conduct; furthermore that conduct must be so shocking as to justify the
judicial branch of the criminal justice system in feeling that, short of
disassociating itself from such conduct through rejection of the statement, its
reputation and, as a result, that of the whole criminal justice system, would
be brought into disrepute. The authorities, in dealing with shrewd and often
sophisticated criminals, must
[Page 642]
sometimes for necessity resort to tricks or other means of
deceit and should not through the rule be hampered in their work. What should
be repressed vigorously is conduct on their part that shocks the community. But
pretending, as in this case, to be a truck driver to secure the conviction of a
trafficker would not shock the community.
Per Laskin C.J. and Estey J., dissenting: The
basic reason for the exclusionary confession rule is a concern for the
integrity of the criminal justice system. The support and respect of the
community for that system can only be maintained if persons in authority
conduct themselves in a way that does not bring the administration of justice
into disrepute. In the realm of confessions, this standard of conduct is
reflected in the requirement that an accused’s statement be given
“voluntarily”.
Where the speaker has, as here, already refused to give a
statement to the authorities, the test of voluntariness must include an
appreciation of the circumstances in which the statement is made, including an
awareness that his statement is being “volunteered” to a person in authority.
To apply the rule otherwise in a case such as this one would not merely permit
but would encourage the deliberate circumvention by the authority of the
accused’s announced exercise of his right not to give a statement to the
authorities. Here the accused had taken the position he did not wish to give a
statement to the police. The police then, by a ruse, subverted that wish and
thus the accused made his statement after he thought he had established that he
was not, in fact, talking to a person in authority. Such a determined
subversion by the police of an expressed right to refuse to make any statement
brings the administration of justice into disrepute. Accordingly, such a
statement given in these circumstances cannot get over the hurdle of the
exclusionary rule.
[Ibrahim v. The King, [1914] A.C. 599; Boudreau v.
The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958,
revising [1956] O.R. 696; Marcoux and Solomon v. The Queen, [1976] 1
S.C.R. 763; Piché v. The Queen, [1971] S.C.R. 23; Ward v. The Queen, [1979]
2 S.C.R. 30; Horvath v. The Queen, [1979] 2 S.C.R. 376; Nagotcha
v. The Queen, [1980] 1 S.C.R. 714; Alward and Mooney v. The Queen, [1978]
1 S.C.R. 559; R. v. McLeod (1968), 5 C.R.N.S. 101]
APPEAL from a judgment of the Court of Appeal for Ontario,
allowing the appeal by the
[Page 643]
Crown from an acquittal and ordering a new trial. Appeal
dismissed, Laskin C.J. and Estey J. dissenting.
Scott T. Milloy, for the appellant.
E.G. Ewaschuk, Q.C., and J.A. Pethes, for the respondent.
The reasons of Laskin C.J. and Estey J. were delivered by
ESTEY J. (dissenting)—I have had the benefit of reading
judgments proposed by my colleagues Martland and Lamer JJ. but for reasons
which I will attempt to set out shortly, I have, with respect, reached the
opposite conclusion and therefore I would propose that the appeal be allowed,
the order of the Court of Appeal set aside and the acquittal in the trial court
restored. The facts having been set out by my colleagues, I can largely confine
my remarks to an explanation of how I have reached the conclusion I propose.
This appeal raises a question as to the admissibility of a
statement made by an accused to a person in authority. The statement was
obtained in circumstances outlined in the statement of facts in the appellant’s
factum to which the respondent agreed:
3. The Respondent [accused] was given a police warning and
was then conveyed to the Ottawa City Police Station at 60 Waller Street along
with Bonner and Hrehoriak. Prior to being lodged in a cell, Constable Gervais
asked the Respondent if he was willing to give a statement but he declined to
do so. The Respondent was later removed from the cell, charged with possession
of hashish for the purposes of trafficking and returned to the same cell.
On the next day the police obtained a statement and again the
circumstances in which it was obtained are described in the appellant’s
statement of facts, accepted by the respondent:
4. On November 10, 1976 at approximately 1:00 a.m., Constable McKnight, a member of the Ottawa City Police Force acting in an undercover
capacity, was placed in an 8’ x 8’ cell at the Ottawa City Police
Station occupied by the Respondent alone. Constable McKnight was placed in the
cell on the instructions of Constable Gervais, the investigating officer, in
order to obtain information from the Respondent concern-
[Page 644]
ing the charge against him. …At that time, Constable
McKnight was unarmed, wore blue jeans, a blue jacket and brown boots, and had a
four or five day growth of beard.
5. Upon entering the cell, the Respondent spoke first to
Constable McKnight by saying that Constable McKnight “looked like a nark”.
Constable McKnight just laughed and the Respondent continued that he looked
like a nark because of the way he was dressed. Constable McKnight explained
that he was dressed like that because he had been fishing. The Respondent then
asked Constable McKnight why he was in jail and he replied that it was because
of a traffic ticket. During the conversation, Constable McKnight informed the
Respondent that he was a truck driver from the Pembroke area and had been
fishing so the Respondent would have the impression that he was not a nark and
that he did not know much about drugs. Constable McKnight indicated that people
in the Pembroke area were interested in drugs and that he would be interested
in getting drugs; however, no deal was set up. The Respondent asked Constable
McKnight when he would be getting out and he replied that a buddy would be
coming down to pay the fine…
Therefore, it is not in dispute that the accused was unaware that
he was speaking to an undercover policeman and that the policeman had deceived
the accused by making false statements concerning his identity, including a
denial that he was a police officer. In the result, the statement was given by
the accused after his arrest, and after he had been given a warning by the
police and had refused to give any statement to the police. In the face of this
express election in the presence of a uniformed policeman by the accused to
remain silent, the police then employed a trick and lies to obtain the
statement now in issue. There is no question that when the accused announced
his unwillingness to give a statement, he was aware that he was communicating
his decision to remain silent to a person in authority, namely a police
officer. The question is, therefore, whether or not a statement obtained
thereafter by the police from the accused in these circumstances is admissible
within the confession rules.
The terms “confession” and “admission” have caused considerable
confusion in the law of evidence and in the criminal law generally for the
[Page 645]
past two centuries. We have not consistently defined “a
confession” in precise terms nor has it been related to the other term “an
admission”. Indeed the words are sometimes used interchangeably. Sometimes it
would appear that a confession is but one species of an admission. Wigmore says
that in earlier times a confession was:
…an acknowledgement in express words by the accused in a
criminal case of the truth of the guilty fact charged or some essential part of
it.
3 Wigmore, Evidence (1970), paragraph 821.
An admission is by that learned author defined as a statement
“made out of court by a party‑opponent”: 4 Wigmore, supra, paragraph
1048. Some authors in earlier times went further and used “confession” to
describe a statement which admits the guilt of the accused completely as
charged and opined that anything short of that is included in the term
“admission”. This of course led to considerable confusion as to the application
of the strict admissibility rules as they developed for confessions. In those
times a distinction was made in defining a confession between exculpatory and
inculpatory statements. For our purposes this distinction came to an end in the
statement of Hall J. in Pichê v. The Queen
at p. 36:
In my view the time is opportune for this Court to say that
the admission in evidence of all statements made by an accused to persons in
authority, whether inculpatory or exculpatory, is governed by the same rule and
thus put to an end the continuing controversy and necessary evaluation by trial
judges of every such statement which the Crown proposes to use in chief or on
cross-examination as either being inculpatory or exculpatory.
The distinction between these terms, “confession” and
“admission”, was also discussed in Commissioners of Customs and Excise v.
Harz et al.
where Lord Reid, at pp. 817-8 stated:
Then it was argued that there is a difference between
confessions and admissions which fall short of a full confession. A difference
of that kind appears to be recognised in some other countries. In India and Ceylon
[Page 646]
legislative enactments severely limit the admissibility of
confessions, and the courts have construed these enactments as not preventing
the admission in evidence of other incriminating statements obtained by fair
means though not in the manner required for confessions. And for some reason
not made clear in argument some such distinction appears to be recognised at
least in some states in the United States. But there appears to be no English
case for more than a century in which an admission induced by a threat or
promise has been admitted in evidence where a full confession would have been
excluded. If such a case had occurred since appeal to the Court of Criminal
Appeal became possible I find it very difficult to believe that there would not
have been an appeal. I can see no justification in principle for the
distinction. In similar circumstances one man induced by a threat makes a full
confession and another induced by the same threat makes one or more
incriminating admissions. Unless the law is to be reduced to a mere collection
of unrelated rules, I see no distinction between these cases.
The learned authors of Phipson on Evidence (12th ed.,
1976) state at paragraph 671:
In criminal cases statements made out of court by an accused
are similarly admissible against him though they are subject to special
conditions of admissibility if made to a person in authority, and are then
usually called “confessions”.
Gradually, the law has developed so as to carve out of the
general field of admissions those statements made by an accused to a person in
authority; these are referred to as confessions and it is to these that special
rules for admissibility at trial apply.
The rules of evidence in criminal law, and indeed in civil law,
are all concerned with relevancy, reliability and fairness as well as other
considerations such as the reasonable economy and efficiency of trial. The
rules with reference to confessions have an additional element, namely the
concern of the public for the integrity of the system of the administration of
justice. If the reliability of an accused’s statements were the only
consideration in determining their admissibility the courts would not have
adopted distinctive principles applicable only to statements to persons in
[Page 647]
authority and not to statements against interest generally.
Reliability cannot be the ticket for admission because statements may have
enough of the appearance of reliability to ensure reference to the trier of fact
but still have been excluded by the confession standard. In Piché, supra, the
statement sought to be introduced by the Crown was one which was professedly
false but which was sought to be introduced to contest the credibility of the
accused. The statement was exculpatory in nature and the Crown was required to
prove that such a prior inconsistent statement was voluntary. Cartwright C.J.
stated at p. 26:
It appears to me to involve a strange method of reasoning to
say that an involuntary statement harmful to the accused’s defence shall be
excluded because of the danger of its being untrue but that a harmful
involuntary statement, of which there is not merely a danger of its being false
but which the prosecution asserts to be false, should be admitted merely
because, considered in isolation, it is on its face exculpatory.
The matter is carried further in an earlier discussion in this
Court in DeClercq v. The Queen
where Cartwright C.J., at p. 906, stated:
While the reason for the rule is said to be the danger that
a confession, the making of which has been induced by threats or promises made
by a person in authority, may well be untrue, it must now, I think, be regarded
as settled that when an inquiry is held during the course of a trial as to the
admissibility of an inculpatory statement sought to be introduced by the Crown,
the question to be determined is whether or not the statement was voluntary and
not whether or not it is true.
Martland J. added at p. 911:
…it is settled law that an inculpatory statement by an
accused is not admissible against him unless it is voluntary, and. the inquiry
on a voir dire is directed to that issue, and not to the truth of the
statement…
Why then is the standard of ‘voluntariness’ and not ‘truth’
adopted by the law? Confessions have doubtless been suspect from the earliest
times by those interested in the administration of justice. Torture and other
forms of violence no doubt have brought about confessions, and the disallowance
of their admissibility was perhaps one of the meas-
[Page 648]
ures adopted to eliminate these practices. Many reasons come to
mind at once for the rejection of such statements: the statement may be untrue;
the statement might be incomplete; and the obtaining of such a statement
infringes the accused’s right to remain silent. It may be that the adoption and
continuance of the confession rules are a deep-seated recognition by the courts
of the need to apply, in the conduct of criminal trials, principles which will
command the respect and hence the support of the public for the system of
criminal justice. Certainly without such acceptance and support the system
would not survive. Chief Justice Freedman discussed the presence of the
exclusionary rule in our law in his learned article “Admissions and Confessions”
reproduced in Salhany and Carter, Studies in Canadian Criminal Evidence, (1972),
c. 4. He observed that the rejection of a confession brought about by threats
and beatings would find its basis not in the rules concerning persons in
authority but may arise out of “…discretionary power to consider the broad
question of public policy in the administration of criminal justice”, (at p.
120). Earlier, at p. 99, the learned Chief Justice stated:
Undoubtedly, as already stated, the main reason for
excluding them is the danger that they may be untrue. But there are other
reasons, stoutly disclaimed by some judges, openly professed by others, and
silently acknowledged by still others—the last perhaps being an instance of an
“inarticulate major premise” playing its role in decision-making. These
reasons, all of them, are rooted in history. They are touched with memories of
torture and the rack, they are bound up with the cause of individual freedom,
and they reflect a deep concern for the integrity of the judicial process.
See as well 8 Wigmore, Evidence, 3rd ed., paragraph 2251.
The roots of the confession rules have been examined by writers
in the United States. In his text on Evidence of Guilt, (1959),
Professor Maguire observed at p. 109:
[T]wo obvious reasons appear for caution in receiving
evidence of confessions:
[Page 649]
First, and most commonly invoked, the fear that an
“involuntary” confession of guilt may be untrue.
Second, determination to hold public authorities up to a
humane and honourable standard of conduct in treatment of persons suspected or
accused. While not at all inconsistent with the first reason, this second
reason may operate entirely independently of any risk that a particular
confession is tainted with untruth.
To similar effect see Allen, “Due Process and State Criminal
Procedures: Another Look” (1953), 48 Nw.U.L. Rev. 16, at p. 19.
This Court was faced in Horvath v. The Queen,
with the question of admissibility of a confession and in discussing the
general nature of confessions in the law our brother Beetz J. stated (at p.
433):
Apart from the untrustworthiness of confessions extorted by
threats or promises, other policy reasons have also been advanced to explain
the rejection of confessions improperly obtained. But the basic reason is the
accused’s absolute right to remain silent either completely or partially and
not to incriminate himself unless he wants to. This is why it is important that
the accused understand what is at stake in the procedure.
This additional consideration connotes a recognition by the
courts since the earliest times of the desirability and indeed the necessity of
adopting a system of principles in the administration of justice which will be
accepted by and command the support of the community. Thus it can be said that
confessions are not admissible where to admit them would bring the
administration of justice into disrepute, or, to put it another way, would
prejudice the public interest in the integrity of the judicial process.
All of this can be found in different shades and hues in the
authorities, commencing with Ibrahim v. The King,
which lays down the principle that to be admissible in a court of law, a
statement by an accused must be voluntary, that is to say it must
[Page 650]
not have been induced by fear of prejudice or hope of advantage.
The prescription that a confession to be admissible must be voluntary is not
limited to the examples set out in Ibrahim, supra. In Horvath, supra,
Spence J. held (at p. 402):
Although many courts seem to have done so, I do not regard
such an authority as Ibrahim as indicating that the natural meaning of
the word “voluntary” should be confined to cases of hope of advantage or fear
of prejudice.
He continued (at pp. 409-10):
The requirement to establish the admissibility at trial of a
statement made by an accused person to persons in authority has been oft cited
as simply that it is free and voluntary. Those are both ordinary English words
and I think mean roughly the same thing. The Shorter Oxford English
Dictionary defines “voluntary” as “arising or developing in the mind
without external constraint…; of actions: performed or done of one’s own free
will, impulse, or choice; not constrained, prompted, or suggested by another”.
In the same case, Beetz J. noted (at p. 424):
The question arises as to whether the enumeration in the
rule of instances of involuntariness is a limitative one.
It cannot be limitative since the rule is a judge-made rule
and anything said by a judge beyond what is necessary to decide the issue is obiter.
Furthermore, the principle which inspires the rule remains a positive one;
it is the principle of voluntariness.
The principle itself, of course, requires (and this is an
absolute requisite) that the statement in fact be made to a person in
authority; and if this qualification is not met, then it matters not whether
the person is known to the accused to be one in authority. This is because the
principle adopted for the protection of the integrity of the administration of
justice is founded upon the realization that persons in authority,
instrumentalities of the State, must observe certain basic rules. This is so
for the practical reason that their very authority might, by promise or threat,
express or implied, produce a statement whether or not the accused was truly
[Page 651]
willing to speak, and on occasion might bring about statements
which are in whole or in part untrue. It is also necessary to adopt these basic
rules for the higher reason that ethical precepts are a vital ingredient in a
system of justice if it is to command the respect and support of the community
it serves, particularly in a judicial structure which embraces the concept of
the jury. In this appeal the first encounter of significance was with a person
in authority; that is, the authority to whom the accused communicated his
decision or election not to give a statement. It is that incident which, in the
circumstances here concerned, started the process which, in my view, leads to
the exclusion of the statements thereafter obtained by the authorities.
The analysis need go but one step further. To be voluntary a
statement must be volunteered by the speaker in the sense that the statement
must be the product of a conscious volens on the part of the speaker.
The volens must relate not only to the mechanics of speaking, that is
the articulation of the ideas of the speaker. Where the speaker has, as here,
already refused to give a statement to the authorities, the test of
voluntariness must include an appreciation of the circumstances in which the
statement is made, including an awareness that his statement is being
‘volunteered’ to a person in authority. To apply the rule otherwise in the
circumstances we have here would not merely permit but would encourage the
deliberate circumvention by the authority of the accused’s announced exercise
of his right not to give a statement to the authorities. This idea is taken up
by Rand J. in R. v. Fitton
at p. 963:
Even the word “voluntary” is open to question; in what case
can it be said that the statement is not voluntary in the sense that it is the
expression of a choice, that it is willed to be made? But it is the character
of the influence of idea or feeling behind that act of willing and its source
which the rule seizes upon.
[Page 652]
The matter is carried further by Spence J. speaking for the
entire Court in Ward v. The Queen,
at p. 40:
In my view, there is a further investigation of whether the
statements were freely and voluntarily made even if no hope of advantage or
fear of prejudice could be found in consideration of the mental condition of
the accused at the time he made the statements to determine whether or not the
statements represented the operating mind of the accused.
If this latter element is not included, then the meaning of
voluntariness is reduced to a concern for the simple articulation of the words
of the statement by the accused speaker. I can find no authority for such an
arbitrary and destructive reduction of the degree of voluntariness required by
the basic principle illustrated by Ibrahim, supra, literally applied.
Indeed, as I view the sequence of events here, the statement is properly
excluded on the simple application of the principle revealed in Horvath and
Ward, supra, to the facts of this case.
On the facts before us here the authority went to some pains to
ensure that the accused, when making his statement, did not know it was being
made to a person in authority. As I have observed, he had earlier refused to
give a statement to the police. I do not go on and deal with any other set of
facts, such as a situation where the accused ought to have known the hearer was
a person in authority within the meaning of that term in the law, or had not
earlier declined to give a statement. We are concerned here with the fact that
the statement was made by a person under charge to a person in authority
masquerading as something else, and after the hearer has explicitly disavowed
any such status in order to allay the suspicions of an accused who had already
expressed a desire not to make a statement to the police.
It is not necessary to trace the origin of the special rules
applicable to statements by an accused to a person in authority. If indeed
these rules emanate from a desire on the part of the courts and the community
to adopt policies which will ensure a fair, impartial and reputable
administration of justice, then we need proceed no further.
[Page 653]
On the other hand, it has been said that the principles
surrounding the admissibility of a confession emanate from a right to silence on
the part of the accused under our jurisprudence. The accused, of course, need
not testify. He cannot be compelled to do so and his exercised right to silence
may not be the subject of commentary by the Crown before the jury (Canada
Evidence Act, R.S.C. 1970, c. E-10, s. 4(5)). On the other hand, if the
accused elects, for whatever reason, to enter the witness box, he is on the
same footing as any other witness. He may be cross-examined on anything deemed
relevant by the court. By statutory intervention (s. 5(2) of the Canada
Evidence Act, supra,) that which the accused says in the witness box may
not be used against him in any other proceedings. But, of course, so far as the
principal trial is concerned the section has no application. The right in
the accused, in my view, to elect not to testify in the trial of a charge laid
against him is one of the fundamental elements of our criminal jurisprudence
ranking with the presumption of innocence and the onus on the Crown to
establish guilt beyond a reasonable doubt according to law. His right to
silence arises not because he is a witness but because he is an accused.
Indeed, as Dickson J. said in Marcoux and Solomon v. The Queen
at p. 769, the accused has no such right with reference to any question deemed
to be relevant by a court once he enters the witness box. Professor Glanville
Williams, in The Proof of Guilt, (2nd ed., 1958), puts it this way (at
pp. 37‑8):
According to the rule, neither the judge nor the prosecution
is entitled at any stage to question the accused unless he chooses to give
evidence. “At the common law,” says Blackstone, “nemo tenebatur prodere
seipsum: and his fault was not [to] be wrung out of himself, but rather to
be discovered by other means and other men.” This rule may be called the accused’s
right not to be questioned; in America it is termed the privilege against
self-incrimination. The latter expression is more apt as the name for another
rule, the privilege of any witness to refuse to answer an incriminating
question; this is different from the rule under discussion, which, applying
only to persons accused of crime, prevents the question from being asked. The
person charged
[Page 654]
with crime has not merely the liberty to refuse to answer
a question incriminating himself; he is freed even from the embarrassment of
being asked the question. The privilege against self-incrimination, as
applied to witnesses generally, must be expressly claimed by the witness when
the question is put to him in the box; whereas the accused’s freedom from being
questioned prevents the prosecution from asking (much less compelling) him to
enter the box, and from addressing questions to him in the dock. [Underlining
added]
The question naturally follows: should the accused’s out-of-court
statements be admissible in court on the same basis? That is, if made to a
person in authority, must that statement be a voluntary statement (as earlier
described), consciously made to that person in circumstances which make it
evident that the accused intended it to be testimony in open court or to be
capable of being put to such use; or under circumstances which will not bring
the administration of justice into disrepute? This question as it arises here
relates only to those statements made to and not merely in the presence of a
person in authority, intended to be given to that particular person, made after
an election to remain silent, and when made in the circumstances already
described. It surely follows that if our law continues to recognize the right
of an accused not to enter the witness box under compulsion, his indirect
testimony in the form of out-of-court statements to a person in authority
should not be admissible on a basis which, following his invocation of the
right to silence, undermines or defeats the right not to testify. One author
has put the idea this way:
…if there are reasons for not compelling an accused to
testify at trial, those reasons should also be considered in relation to
statements given prior to trial.
Ratushny, Self-incrimination in the Canadian Criminal Process,
1979, at p. 97.
By this process of reasoning one can readily reconcile the Ibrahim
rule with the underlying purposes for the special treatment accorded to
confessions,
[Page 655]
being the overriding interest in the acceptance by the community
of the system for the administration of justice. Thus the admission of a
statement which has been induced by a person in authority in such a way that it
might be untrue is but one illustration of conduct that would bring the
administration of justice into disrepute; and hence such a statement is
inadmissible. This principle has its application in any circumstance, whether
or not one might conclude that the statement might be true, where the effect of
the conduct of a person in authority is to remove the basic element of
‘voluntariness’. In short, the possibility or likelihood of the truth or
untruth of a statement is but one element in the process of determining the
voluntary nature of the statement in the full sense accorded to that expression
in the authorities. I find the observations of Lord Diplock in R. v. Sang
at p. 436 appropriate to the circumstances of this appeal:
My Lords, I propose to exclude, as the certified question
does, detailed consideration of the role of the trial judge in relation to
confessions and evidence obtained from the defendant after commission of the
offence that is tantamount to a confession. It has a long history dating back
to the days before the existence of a disciplined police force, when a prisoner
on a charge of felony could not be represented by counsel and was not entitled
to give evidence in his own defence either to deny that he had made the
confession, which was generally oral, or to deny that its contents were true.
The underlying rationale of this branch of the criminal law, though it may
originally have been based upon ensuring the reliability of confessions is, in
my view, now to be found in the maxim nemo debet prodere se ipsum, no one can
be required to be his own betrayer or in its popular English mistranslation
“the right to silence.” That is why there is no discretion to exclude evidence
discovered as the result of an illegal search but there is discretion to
exclude evidence which the accused has been induced to produce voluntarily if
the method of inducement was unfair.
Outside this limited field in which for historical reasons
the function of the trial judge extended to imposing sanctions for improper
conduct on the part of the prosecution before the commencement of the
proceedings in inducing the accused by threats, favour or trickery to
[Page 656]
provide evidence against himself, your Lordships should, I
think, make it clear that the function of the judge at a criminal trial as
respects the admission of evidence is to ensure that the accused has a fair
trial according to law.
The first determination to be made when the court is confronted
with an out-of-court statement by this accused is whether his first statement,
that is his refusal to talk to the police, was made to a person in authority.
This act of the accused is an objective step and therefore depends not on the
understanding of the accused alone but on the actual fact of the identity of
the recipient of the statement. If the recipient be a person in authority as
that term has been developed in the law, the next step is to determine, in all
the circumstances which followed, whether the statement ultimately given (and
which is tendered at trial) is voluntary in the full sense of that term. The
elements which go into the determination of the voluntariness of that statement
include all those circumstances which bear upon the overriding requirement that
the admission of the statement will not render the administration of criminal
justice unacceptable to the community. All this is in sharp contrast to the
determination of the admissibility of a statement by an accused to a person not
in authority. In that instance the presence or absence of threats, force, fear,
hope, tricks, drugs, etc. go to weight and not to admissibility. It also calls
for a different application of the principle than in the usual case where the
accused has not, in prior confrontations with the authorities, declined to give
a statement.
It has been said in considering the use of stratagems by persons
in authority that
there appears to be at least some tendency [in Canadian
courts] to consider the use of such tactics as one of the factors bearing on
voluntariness.
“Developments in the Law—Confessions” (1966), 79 Harv. L.
Rev. 935, at p. 1104.
[Page 657]
This is so in my view if the term “voluntariness” is there
used in the full sense in which I have here used the term.
Davey C.J.B.C., in R. v. Frank,
examines the status of statements procured or induced by lies told by the
person in authority to the accused. In the end the Chief Justice found that
their effect on “voluntariness” is measured according to whether or not the
circumstances produced in the accused a hope of advantage or a fear of
prejudice. In R. v. McLeod,
the Court of Appeal rejected statements procured by “barefaced lies”. Laskin
J.A. (as he then was) stated (at p. 104):
In so holding, I do not rule out as a matter of law all
stratagems that the police or persons in authority may employ in questioning a
person under arrest. The issue in every case, under the governing law, must be
whether they operate or are calculated to operate upon the person to rouse hope
of advantage or fear of prejudice, or by their oppressiveness (to borrow a term
from the English Judges’ Rules) put in doubt at least whether any ensuing
inculpatory statement has been properly elicited. In my view, reinforced by a
reading of the whole record, the lies and associated incidents in this case had
the forbidden effect in inducing the incriminating statement.
It remains essentially a decision of policy as to whether the
accused must be aware he is making the statement to a person in authority
before it may be admissible as a confession. On the facts here, that basic
question in its broad form does not arise. Here the accused had taken the
position that he did not wish to give a statement to the police. The police
then, by a ruse, subverted that wish and thus the defendant made his statement
after he thought he had established that he was not, in fact, talking to a
person in authority. He did not intend, in such circumstances, to make a
statement to a person in authority and thus the public authority cannot present
the resulting statement as “voluntary” and therefore admissible under the
confession rules. A different result might obtain where
[Page 658]
the accused by the clearest declaration revokes his earlier
declared election not to give a statement to the authorities. In such a case
the succeeding statement is subject to the test of voluntariness in the
ordinary way.
Dubin J.A. in his dissent below refers to the refusal of the
accused to give a statement to the authorities:
A singular feature in this case is that after arrest the
accused was given a police warning and was asked if he was willing to give a
statement. He declined to do so. At that stage, therefore, he had been advised
not only that he need not make a statement to a police officer, but also that
whatever he said would be taken down in writing and could be used in evidence
against him at his trial. In refusing to make such a statement, he exercised
his legal right.
I respectfully agree with these observations.
To summarize then:
a) The exclusionary confession rule applies to statements given
before trial by an accused to persons in authority.
b) The basic reason for the rule is a concern for the integrity
of the criminal justice system. Such a system necessarily requires the support
and respect of the community it purports to serve. That support and respect can
only be maintained if persons in. authority conduct themselves in a way that
does not bring the administration of justice into disrepute in the community.
c) The rule and its administration strike a delicate balance
between the need to secure the conviction of the guilty, but above all, the
avoidance of the conviction of the innocent.
d) In the realm of confessions, this standard of conduct is
reflected in the requirement that an accused’s statement be given
“voluntarily”.
e) In this appeal, an expressed decision to remain silent was
made by the accused to a policeman who was, in the mind of the
[Page 659]
accused as well as in fact, a person in authority.
f) The statement ultimately obtained and tendered in court was
the product of a trick and lies by persons in authority, calculated to subvert
the appellant’s expressed decision to stand mute.
g) Such a determined subversion by the police of an expressed
right to refuse to make any statement brings the administration of justice into
disrepute. Accordingly, such a statement given in these circumstances cannot
get over the hurdle of the exclusionary rule.
h) This appeal is not concerned with the gathering of evidence by
any other means nor with the circumstance where an accused has not announced to
persons in authority that he did not wish to make a statement.
For these reasons I would allow the appeal and restore the
acquittal at trial.
The judgment of Martland, Ritchie, Dickson, Beetz, Mclntyre and
Chouinard JJ. was delivered by
MARTLAND J.—This is an appeal from a judgment of the Ontario
Court of Appeal.
At trial the appellant was acquitted on a charge of possession of cannabis
resin for the purpose of trafficking. The Court of Appeal allowed the Crown’s
appeal and directed that a new trial be held. Dubin J.A. dissented.
The issue which is before this Court concerns the admissibility
of a confession which the Crown sought to put in evidence at trial. An agreed
statement of facts submitted by the parties to the Court of Appeal explains how
the confession came to be made and how it was disposed of by the trial judge.
The relevant portions of that statement are set out below:
On November 9, 1976 at approximately 2:30 p.m., Sergeant
Woods and Constables Lauzon, Carvish and Gervais of the Ottawa Police Force
conducted a search of apartment 1102, 1365 Bank Street in the City of
[Page 660]
Ottawa under the authority of a search warrant. On the
premises at that time were Donal Bonner (D.O.B. 26/06/57), Timothy Hrehoriak
(D.O.B. 24/12/60) and the Respondent (D.O.B. 21/12/45). The Respondent advised
Constable Gervais that he lived on the premises along with one Nancy Olson. In
one of the bedrooms, Sergeant Woods located 128.54 grams of hashish, a set of
scales, a cutting knife and a box of tin foil. Upon analysis, the scales and
knife were found to have traces of hashish.
The Respondent was given a police warning and was then
conveyed to the Ottawa City Police Station at 60 Waller Street along with
Bonner and Hrehoriak. Prior to being lodged in a cell, Constable Gervais asked
the Respondent if he was willing to give a statement but he declined to do so. The
Respondent was later removed from the cell, charged with possession of hashish
for the purposes of trafficking and returned to the same cell.
On November 10, 1976 at approximately 1:00 a.m., Constable
McKnight, a member of the Ottawa City Police Force acting in an undercover
capacity, was placed in an 8’ x 8’ cell at the Ottawa City Police Station
occupied by the Respondent alone. Constable McKnight was placed in the cell on
the instructions of Constable Gervais, the investigating officer, in order to obtain
information from the Respondent concerning the charge against him. During the
trial, a voir dire was conducted on the question of whether Constable
Earl McKnight was a person in authority. At that time, Constable McKnight was
unarmed, wore blue jeans, a blue jacket and brown boots, and had a four or five
day growth of beard. Constable McKnight testified on the voir dire that
the Respondent appeared to be normal and not under the influence of alcohol. No
other persons or police officers were visible from the cell. Constable McKnight
did not identify himself to the Respondent as a member of the Ottawa City
Police Force and the Respondent did not appear to recognize him as such.
Upon entering the cell, the Respondent spoke first to
Constable McKnight by saying that Constable McKnight “looked like a nark”.
Constable McKnight just laughed and the Respondent continued that he looked
like a nark because of the way he was dressed. Constable McKnight explained
that he was dressed like that because he had been fishing. The Respondent then
asked Constable McKnight why he was in jail and he replied that it was because
of a traffic ticket. Constable McKnight asked the Respondent why he was in jail
and the Respondent stated that it was for possession of hashish. While in the
cell, Constable McKnight sat beside the Respondent on the only bench. The
Respondent then told Constable McKnight that he sold hashish
[Page 661]
for $25.00 for 3 grams, that the hash that he had been
caught with had been “fronted” to him and that he would have to pay the people
back $1,000 because he had been “busted”. The Respondent stated that he would
have made $1,800 on the drugs that he had. Constable McKnight asked if there
were many drugs in the City and the Respondent replied that there were approximately
40 pounds. The Respondent also stated that he was arrested at his apartment
along with his buddy who was in the next cell. During the conversation,
Constable McKnight informed the Respondent that he was a truck driver from the
Pembroke area and had been fishing so the Respondent would have the impression
that he was not a nark and that he did not know much about drugs. Constable
McKnight indicated that people in the Pembroke area were interested in drugs
and that he would be interested in getting drugs; however, no deal was set up.
The Respondent asked Constable McKnight when he would be getting out and he
replied that a buddy would be coming down to pay the fine. The Respondent
stated that he had to go to court the next morning because he was on parole
respecting other charges. Constable McKnight was released from the cell at 1:07
a.m. and made his notes concerning the conversation shortly thereafter.
After Constable McKnight testified on the voir dire the
Respondent called no evidence on the issue of whether Constable McKnight was a
person in authority.
After argument by counsel, His Honour Judge Matheson ruled
that in all the circumstances, Constable McKnight was a person in authority.
No further evidence was called by the Crown on the voir
dire on the issue of whether the statements made by the Respondent to
Constable McKnight were voluntary. The Respondent did not request any other
Crown witnesses to be produced for cross‑examination on the voir dire and
did not call any evidence on this issue.
After argument by counsel, His Honour Judge Matheson ruled
that the “continuation of the intent to obtain a statement by this disguise”
puts into doubt whether the inculpatory statement had properly been elicited
and was therefore inadmissible.
The Crown called no further evidence at trial and at the
request of Crown Counsel and the direction of His Honour Judge Matheson, the
jury returned a verdict of “not guilty” of possession.
[Page 662]
The majority of the Court of Appeal held that a new trial should
be ordered. Jessup J.A. (Weatherston J.A. concurring) held that because the
appellant did not consider the undercover officer to be “in authority”, the
statement was not governed by the special rules relating to confessions. Jessup
J.A. went on to say that even if the appellant had regarded Constable McKnight
as being a person in authority, the conditions laid down in Ibrahim v. The
King
as to the voluntariness of an accused’s statements had been met.
Dubin J.A., writing in dissent, was of the view that the trial
judge was correct in excluding the statement and would have dismissed the
appeal. He held that the basis of the confession rule was not merely concern
over the truthfulness of the statement in issue and said that the rules
respecting confessions and an accused person’s right to remain silent were
related. It was his opinion that a trial judge had a discretion to exclude the
confession because of the way in which it was obtained.
This case should be decided in the context of the special rules
which have evolved in respect of evidence which has been obtained by way of a
confession. In Phipson on Evidence, 12th ed., at p. 337, paragraph 792,
the following passage appears:
The classic formulation of the principle applicable to the
admissibility of confessions appears in Lord Sumner’s speech in Ibrahim v.
R. ([1914] A.C. 599, 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. The principle is as old as Hale”.
Lord Sumner’s statement was adopted in this Court in Boudreau
v. The King
and in R. v. Fitton.
[Page 663]
The first issue to be determined is whether Constable McKnight
was a “person in authority” because, except in the case of a statement made to
a person in authority, a statement made by an accused against his own interest
is admissible against him in criminal proceedings in the same way that it would
be in civil proceedings and there are no special conditions requiring the Crown
to prove that the statement was voluntary.
Both parties to this appeal agree that the test to be applied in
determining this issue is a subjective test, i.e. did the appellant,
when he made the statement to McKnight, believe that McKnight was a person in
authority. The Court of Appeal agreed with the application of this test. Jessup
J.A. said (at p. 380):
In my opinion the police officer in the present case was not
a person in authority because he was not regarded as such by the respondent. As
Kaufman J.A. says in Admissibility of Confessions in Criminal Matters, 2nd
ed. (1974), at p. 54:
The true test, it is submitted, is highly subjective: Did
the accused truly believe, at the time he made the declaration, that the person
he dealt with had some degree of power over him? In other words, did the
accused think that the person to whom he confessed (or as a result of whose
intervention he confessed) could either make good his promise or carry out his
threats? If so, such person should be treated as a person in authority and if
not, the rules which attach to persons in authority need not be applied, even
though the person, from a purely objective point of view, was in a position of
undoubted authority.
A similar view is expressed by Freedman C.J.M. in Studies in
Canadian Criminal Evidence (1972) at p. 118:
Suppose the policeman is garbed as a prisoner and is in fact
thought by the accused to be a fellow prisoner. He is then not a person in
authority. The test is apparently a subjective one. The court considers the
effect of the inducement on the mind of the accused in the known circumstances.
Based on the knowledge of the accused, was it reasonable for him to think that
the person holding out the inducement had the power
[Page 664]
to implement his promise or carry out his threat, as the
case may be? If the answer is in the affirmative—as it is likely to be where he
is manifestly dealing with the police—the inducement will be deemed to have
come from a person in authority. If the answer is in the negative—as in the
case where the accused confesses to another prisoner, not knowing him to be a
policeman—the inducement will be treated as not having come from a person in
authority.
In taking this position, Jessup J.A. was in agreement with the
decisions of four provincial courts of appeal in which a subjective test was
applied: R. v. Pettipiece,
R. v. Muisi (No. 1),
Metenko v. The Queen
and R. v. Stewart.
I agree with Jessup J.A. that a subjective test should be applied
in the circumstances of this case. I also agree with his conclusion that
McKnight was not a person in authority because he was not regarded as such by
the appellant. There is no evidence whatever that, at the time the appellant
revealed to McKnight that he was a dealer in drugs, he believed McKnight to be
a police officer. The appellant did not give evidence on the voir dire and
so he did not express any such belief. No evidence on the voir dire was
given on his behalf. The appellant did say to McKnight when he first spoke to
him that McKnight “looked like a nark”, but in the course of their conversation
this suspicion was obviously dispelled. It is clear that he would not have made
the admission which he did make to McKnight if he had believed that McKnight
was a police officer, and that he made it because he believed McKnight to be a
fellow prisoner.
Once it is accepted that the confession of the appellant was not
made to a person in authority, it was properly admissible without any
requirement for the Crown to establish that it was voluntary. The confession
was in the same position as if it had been made to someone other than a police
officer. In my opinion, it was an error of law to refuse to receive it.
[Page 665]
With great respect to the dissenting opinion of Dubin J.A., it is
my view that the privilege against self-incrimination is not relevant in the
circumstances of this case. The scope of the privilege against
self-incrimination has been clearly defined by my brother Dickson in the case
of Marcoux and Solomon v. The Queen
at pp. 768-9:
The limit of the privilege against self-incrimination is
clear. The privilege is the privilege of a witness not to answer a question
which may incriminate him. That is all that is meant by the Latin maxim, nemo
tenetur seipsum accusare, often incorrectly advanced in support of a much
broader proposition.
…
In short, the privilege extends to the accused qua witness
and not qua accused, it is concerned with testimonial compulsion
specifically and not with compulsion generally.
A claim for protection against self-incrimination can only arise
where a tribunal or authority is seeking to compel an individual to disclose
something which he does not wish to disclose. In the present case, there was no
attempt by anyone to compel the appellant to make the disclosure which he did
make. The information given by the appellant to McKnight was furnished by the
appellant entirely on his own volition.
For these reasons, it is my opinion that this appeal should be
dismissed. However, Jessup J.A. in his reasons went on to consider whether the
appellant’s confession was properly admissible even on the assumption that
McKnight was a person in authority. He concluded that it was admissible. This
issue was fully argued before this Court and so I will express my opinion with
regard to it.
At the outset, I would point out that the trial judge, in his ruling
as to the admissibility of the confession, made the following findings:
In the instant case I am satisfied that what Rothman said to
Const. Earl Grant McKnight, and I might add, who was acting in the performance
of his duty, would seem to have been free of both fear and [sic]
prejudice, and free as well of hope of advantage by reason of the
[Page 666]
facts that he had been mislead or tricked into believing
that he was speaking to a person actually held in custody.
On these findings, the respondent had satisfied the requirements
for the admission of the confession as stated in the Ibrahim case. The
trial judge, however, refused to admit the confession because, he said:
However, in light of the facts of this particular case, I
believe that continuation of the intent to obtain a statement by this disguise
puts into doubt whether the inculpatory statement had been properly elicited,
and I feel that in the circumstances that I must rule against admissibility
herein.
It was not, in my opinion, a sufficient basis for the refusal of
the trial judge to receive the confession in evidence solely because he
disapproved of the method by which it was obtained. The issue in the case was
as to whether the confession was voluntary.
I have already noted that this Court has accepted Lord Sumner’s
statement in Ibrahim as to the test as to whether a confession is
voluntary. In the Boudreau case, Rand J., in delivering his own
judgment, referred to the Ibrahim case and said at pp. 269-70, in a
statement which has been cited in this Court by Hall J. in Piché v. The
Queen
at p. 37 and by Spence J. in Ward v. The Queen
at pp. 39-40:
The cases of Ibrahim v. Rex [1914] AC. 599, Rex v.
Voisin (1918) 1 K.B. 531 and Rex v. Prosko 63 S.C.R. 226 lay it down
that the fundamental question is whether the statement is voluntary. No doubt
arrest and the presence of officers tend to arouse apprehension which a warning
may or may not suffice to remove, and the rule is directed against the danger
of improperly instigated or induced or coerced admissions. It is the doubt cast
on the truth of the statement arising from the circumstances in which it is
made that gives rise to the rule. What the statement should be is that of a man
free in volition from the compulsions or inducements of authority and what is
sought is assurance that that is the case. The underlying and controlling
question then remains: is the statement freely and voluntarily made?
[Page 667]
This statement was construed by Pickup C.J.O., in R. v. Fitton
at pp. 714-5 in the following manner:
In my opinion, the Crown does not discharge the onus resting
upon it by merely adducing oral testimony showing that an incriminating
statement made by an accused person was not induced by a promise or by fear of
prejudice or hope of advantage. That statement of the rule of law is too
narrow. The admissions must not have been “improperly instigated or induced or
coerced”: per Rand J. in Boudreau v. The King, supra, at p. 269. The
admissions must be self-impelled, and the statement must be the statement of a
man “free in volition from the compulsions or inducements of authority”. The
statement must be “freely and voluntarily made”. Applying that principle to the
particular facts in this case, I have reached the conclusion that the Crown has
failed to show that the oral statement made by the appellant, or the written
statement made by him immediately afterwards, was free and voluntary.
On the appeal in that case to this Court it was held that the
decision of the Court in Boudreau did not extend in any way the rule
laid down in Ibrahim and that it was still the law that a statement is
admissible in evidence if it is shown that it was voluntary in the sense that
it has not been obtained by fear or prejudice or the hope of advantage
exercised or held out by a person in authority.
Rand J., at pp. 962-3, said:
The Chief Justice of Ontario, speaking for the majority of
the Court of Appeal, has treated the expression “freely and voluntarily”, used
in Boudreau v. The King, as if it connoted only a spontaneous statement,
one unrelated to anything as cause or occasion in the conduct of the police
officers; but with the greatest respect that is an erroneous interpretation of
what was there said. The language quoted must be read primarily in the light of
the matters that were being considered. As the opening words show, there was no
intention of departing from the rule as laid down in the authorities mentioned;
the phrase “free in volition from the compulsions or inducements of authority”
(Boudreau v. The King, supra, at p. 269) means free from the compulsion
of apprehension of prejudice and the inducement of hope for advantage, if an
admission is or is not made. That fear or hope could be instigated, induced or
coerced, all
[Page 668]
these terms referring to the element in the mind of the
confessor which actuated or drew out the admission.
In an earlier passage at p. 962 he had said:
The rule on the admission of confessions, which, following
the English authorities, was restated in Boudreau v. The King, at times
presents difficulty of application because its terms tend to conceal underlying
considerations material to a determination. The cases of torture, actual or
threatened, or of unabashed promises are clear; perplexity arises when much
more subtle elements must be evaluated. The strength of mind and will of the
accused, the influence of custody or its surroundings, the effect of questions
or of conversation, all call for delicacy in appreciation of the part they have
played behind the admission, and to enable a Court to decide whether what was
said was freely and voluntarily said, that is, was free from the influence of
hope or fear aroused by them.
The admissibility of a confession was under consideration by this
Court in two recent cases. In Horvath v. The Queen,
the accused voluntarily underwent an interview by a police polygraph operator
lasting for four hours. There was a taped transcript of what he said. During
the interview, the police officer left the accused alone three times. During
these intervals, the accused reflected aloud in what were called monologues or
soliloquies. During the second monologue, the accused admitted killing his
mother. After the second monologue, the accused repeated his confession to the
police officer. In the third monologue, he asked his mother’s forgiveness for
having disclosed the incident. Following that, the accused signed a written
confession.
The trial judge accepted the opinion of a psychiatrist that up to
the end of the second monologue the accused was in a light hypnotic state. He
rejected the confession because the accused, for a sizeable part of the
interview immediately prior to the confession, had been in an hypnotic state.
In this Court, three members of the seven-man panel supporting
the judgment of the Court of
[Page 669]
Appeal for British Columbia held the confession to be admissible
as the hypnotic state had ended before the written confession was made and
there was no evidence that it had been obtained by fear of prejudice or hope of
advantage. Two members of the majority held the confession to be inadmissible
because, in all the circumstances, it was not free and voluntary. Spence J., at
p. 408, said:
In my respectful opinion, the judgment of this Court in Fitton
must be limited so as not to rule admissible statements made by the accused
when not induced by hope of advantage or fear or prejudice but which are
certainly not voluntary in the ordinary English sense of the word because they
were induced by other circumstances such as existed in the present case.
The other two members of the majority held that the confession
was not admissible, holding that unconsented hypnosis induced by a person in
authority should be added to the motives for exclusion mentioned in Ibrahim.
The written confession, though made after the accused was in a state of
hypnosis, flew directly from the earlier statement made while under hypnosis.
Therefore it was not voluntary.
Ward v. The Queen
was concerned with the admissibility of a confession in a case involving a
charge of criminal negligence in the operation of a motor vehicle. This was a
single vehicle accident. The accused and his lady friend, the deceased, were
found on the ground outside the vehicle. He was unconscious and had to be
revived by mouth to mouth resuscitation administered by the occupants of the
first vehicle to arrive after the accident. In issue in the case was whether
the accused or the deceased was operating the vehicle at the time of the
accident.
The police interviewed the accused about half an hour after the
accident occurred and at the hospital some five or six hours later. To the
police he admitted that he was the driver of the vehicle, although earlier, in
response to a question from the person who had revived him, he said that he was
not. On the voir dire, he said he could remember nothing from the time
he was in the Palliser Hotel,
[Page 670]
Calgary, some hours before the accident. His doctor at the
hospital said the accused could answer simple questions but was unable to tell
him what had happened.
Spence J., delivering the judgment of the Court, cited the
passage above quoted from the reasons of Rand J. in Boudreau and
stressed the concluding words “The underlying and controlling question then
remains: is the statement freely and voluntarily made?” He went on to say at p.
40:
I have underlined the last sentence in Rand J.’s statement
to indicate that in my view the examination of whether there was any hope of
advancement or fear of prejudice moving the accused to make the statements is
simply an investigation of whether the statements were “freely and voluntarily
made”. In my view, there is a further investigation of whether the statements
were freely and voluntarily made even if no hope of advantage or fear of
prejudice could be found in consideration of the mental condition of the
accused at the time he made the statements to determine whether or not the
statements represented the operating mind of the accused. In my view, Manning
J. engaged in a consideration of both the mental and physical condition of the
accused, firstly, to determine whether a person in his condition would be
subject to hope of advancement or fear of prejudice in making the statements,
when perhaps a normal person would not, and, secondly, to determine whether,
due to the mental and physical condition, the words could really be found to be
the utterances of an operating mind. Manning J. had a reasonable doubt of both
issues and, therefore, found the statements to be inadmissible. It is not
denied that a reasonable doubt on the part of the trial judge upon the issue is
sufficient to justify his refusal to admit the statements in evidence.
Horvath and Ward are cases in which, although there
had been no fear of prejudice or hope of advantage held out by a person in
authority, the confessions were excluded essentially because of the existence
of a reasonable doubt as to whether the confession in question was “the
utterance of an operating mind”.
The same question arose in the case of Nagotcha v. The Queen.
In that case the trial judge admitted in evidence inculpatory statements
[Page 671]
made by the accused on the day of his arrest and a few months
later when he was being taken to a mental health centre after being remanded
there by a Provincial Court Judge.
The accused did not give evidence on the voir dire, but
evidence was given by a psychiatrist that he diagnosed the accused as a
paranoid schizophrenic. He testified that the accused, initially, was not fit
to stand trial, but his condition improved under treatment and no issue was
raised as to his fitness when the trial began. Insanity was not raised as a
defence.
Chief Justice Laskin, delivering the judgment of the Court
upholding the ruling of the trial judge, said at p. 716:
It is clear that there was evidence upon which the trial
Judge could act in holding that the inculpatory statements were admissible, and
it would be going too far to hold, as an invariable rule, that inculpatory
statements by an insane man were ipso facto inadmissible: see Sinclair
v. The King (1946), 73 C.L.R. 316; R. v. Basto (1954),
91 C.L.R. 628. The main contention that the trial Judge had applied the
wrong test of voluntariness, in respect of statements by a paranoid
schizophrenic was based on an alleged distinction between the test expressed in
R. v. Santinon (1973), 11 C.C.C. (2d) 121, [21 C.R.N.S. 323, [1973] 3
W.W.R. 113], a judgment of the British Columbia Court of Appeal and the test
expressed by this Court in the judgment delivered by Spence J., in Ward v.
The Queen, [1979] 2 S.C.R. 30, [(1979), 44 C.C.C. (2d) 498, 94 D.L.R. (3d)
18], O’Driscoll J., was said to have adopted the Santinon test, and it
was submitted that the Ward case, which had not yet been decided at the
time that the accused was tried, prescribed a different test, one more
favourable to the accused. This is not the way that I read the two cases.
He went on to quote from the judgment of Bull J.A. in Santinon
and that of Spence J. in Ward and held that the trial judge,
although he had not, in terms, used the words “operating mind”, had addressed
himself to the proper considerations.
I have reviewed the authorities in this Court with a view to
showing that, in determining the admissibility of a confession to a person in
author-
[Page 672]
ity, the Court is not immediately concerned with the truth or reliability
of the statement made by the accused, but with the question as to whether the
statement he has made was free and voluntary, within the stated rules and
whether the confession was the utterance of an operating mind.
It has been suggested that this Court adopted a new rule
respecting the admissibility of confessions in its judgment in the case of Alward
and Mooney v. The Queen.
I do not agree for the following reasons.
In that case the appellants had been charged with a murder which
occurred in connection with a robbery. At the outset of his judgment, Spence
J., who spoke for the majority of the Court, pointed out, at p. 561, that
although the appellant had submitted a number of grounds for appeal, counsel
for the Crown, respondent, had been called upon to reply only to submissions in
reference to three grounds:
1. The admissibility of evidence of similar acts.
2. The judge’s charge as to intoxication.
3. The application of s. 613(l)(b)(iii) of the Criminal
Code.
The statements of the accused relating to the charge of murder
were found by the trial judge to have been voluntarily made and the Court of
Appeal agreed. Counsel for the respondent was not called upon to submit
argument to this Court on that issue.
Limerick J.A., who delivered the reasons for the Court of Appeal
for New Brunswick,
dealt with the admissibility of all of the statements made by the accused, and
not only those concerning the commission of the offence charged, in the
following fashion, at pp. 431-2:
The trial Judge found that all the statements given or made
by the appellant were voluntarily given. The evidence does not disclose that he
erred therein. The rule as originally applied was that no statement made by an
accused is admissible in evidence against him unless it be shown by the
prosecution to have been a voluntary statement in the sense that it has not
been obtained from
[Page 673]
him either by fear of prejudice or hope of favour or
advantage exercised or held out by some one in authority. The term “voluntary”
must always be interpreted in this special sense and not in the sense of being
spontaneous. The fact that some questions may be asked which induce the
statement does not destroy the voluntariness of the statement. This rule of
English criminal law has been adopted by our Courts, which have also, to a
large extent, adopted, by case law, the further English rule of Court that the
statement to be admissible must not be obtained by oppression. I can find no
evidence of such oppression in this case as would justify the Court in setting
aside the finding of the trial Judge.
The fact that Constable Munn said to Sergeant Scott in the
presence of the appellant that the old man has regained consciousness and will
be able to identify his assailants,—although untrue, and might induce a sense
of fear in the appellant, would not render the statement inadmissible. The fear
contemplated by the rule of evidence is not a fear of being caught or
identified or a fear induced by the accused’s guilty conscience but a fear of
reprisal if he failed to talk or give the statement.
The principle on which the rule is founded is that the
accused may have been induced or influenced to say what is untrue and, if being
uncertain whether the statement is true, it would be unsafe to receive a
statement made under any influence of hope or fear.
The true test, therefore, is did the evidence adduced by the
Crown establish that nothing, said or done by any person in authority, could
have induced the accused to make a statement which was or might be untrue because
thereof. The Crown met that test.
It is the last paragraph in this quotation which it is contended
stated a new test as to the admissibility of a statement. It should be noted,
however, that Limerick J.A. at the beginning of the passage quoted the rule as
to voluntariness “adopted by our Courts”. The paragraph in question is related
to the untruthful statement made by the police officers to the accused to the
effect that the victim had regained consciousness and would be able to identify
his assailants. When this paragraph is read in context, I do not regard it as
seeking to break new ground as to the law governing the admissibility of
confessions. Limerick J.A. properly directed himself to the issue of
voluntariness, and, significantly, did not exclude the statements because they
were induced by deception.
[Page 674]
In his reasons in this Court, Spence J. recited from the judgment
of Limerick J.A. the three reasons which had been given by the trial judge for
admitting the statements of the accused about the other occurrences, i.e. two
robberies in motels in which they had been involved. The admissibility of
evidence as to similar acts was one of the three points on which the Court
heard argument.
Spence J. then went on to say at pp. 562-3:
Limerick J.A. concluded after discussing the evidence as to
the statements in detail:
The true test, therefore, is did the evidence adduced by the
Crown establish that nothing, said or done by any person in authority, could
have induced the accused to make a statement which was or might be untrue
because thereof. The Crown met that test.
This Court agreed with that conclusion.
In light of this background, I do not agree that it can be said
that this Court in this casual and indirect manner had adopted any new test for
the admissibility of a confession. That this is so is made manifest by the fact
that in the Horvath case, decided less than two years later, Spence J.,
in his reasons, made no reference to the Alward case. His remarks were
directed to the scope of the judgment in Fitton. Had he considered that
the Alward case defined a new test for the admissibility of a
confession, he would certainly have applied it in the Horvath case.
What is significant in the Alward case, in relation to the
present appeal, is that this Court accepted as admissible statements made by
the accused notwithstanding the fact that the police had knowingly given to the
accused false information to the effect that the victim had regained
consciousness and would be able to identify his assailants. There is no
suggestion in Alward that the confession could be excluded by the trial
judge because of this conduct.
In my opinion the effect of the judgments in this Court as to the
admissibility of confessions is that in order to render the confession admissible
the Crown must meet the requirements stipulated in Ibrahim. Even when
this has been done, there may
[Page 675]
be circumstances involved in connection with the obtaining of the
confession from which the Court may conclude that the confession was not free
and voluntary, e.g. as in Horvath and Ward where there is
a reasonable doubt as to whether the statement was the utterance of an
operating mind. In such a case, the confession is not admissible.
The judgment of the Ontario Court of Appeal in R. v. McLeod
is of interest in this connection. Laskin J.A. (as he then was) delivering the
judgment of the Court, said at pp. 103‑4:
The accused, appellant, was with the police at a station for
about an hour during which she was questioned and gave a statement; and
following this she was charged.
Two officers were present during the questioning which was
conducted by one only. He tried, as he said, to put her at her ease, by
questions not directed to the robbery, and then proceeded to narrate the
sequence of events on the night of the robbery. Getting no response from the
accused, he then told her that the complainant was still unconscious, in
hospital and on the critical list. These were lies, as the officer admitted.
The accused, who also gave this account of what the officer told her, said in
her evidence on the “trial within the trial” that she became frightened,
started to cry and proceeded to make a statement. The officer took her into a
smaller room, asked her to repeat her story and typed it. The accused hung back
when asked to sign the typed statement, but did so after (according to her
evidence) the officer told her that it would not incriminate her.
The general principles of law respecting the admissibility
of inculpatory statements have been authoritatively stated for this Court by
the Supreme Court of Canada in Boudreau v. The King, [1949] S.C.R. 262,
7 C.R. 427, 94 C.C.C. 1, [1949] 3 D.L.R. 81, and reaffirmed in Regina v.
Fitton, [1956] S.C.R. 958, 24 C.R. 371, 116 C.C.C. 1,
6 D.L.R. (2d) 529, 10 Can. Abr. (2nd) 6479. But as Rand and Kellock
JJ. pointed out in the latter case (at p. 962), these principles at times
present difficulty of application because their terms tend to conceal
underlying considerations material to a determination; and they continue:
“The case of torture, actual or threatened, or of unabashed
promises are clear; perplexity arises when
[Page 676]
much more subtle elements must be evaluated. The strength of
mind and will of the accused, the influence of custody or its surroundings, the
effect of questions or of conversation, all call for delicacy in appreciation
of the part they have played behind the admission, and to enable a Court to
decide whether what was said was freely and voluntarily said, that is, was free
from the influence of hope or fear aroused by them.”
I hold in the present case, contrary to the ruling of the
trial Judge, that the Crown has not discharged the burden of proof resting upon
it in the matter at issue.
In so holding, I do not rule out as a matter of law all stratagems
that the police or persons in authority may employ in questioning a person
under arrest. The issue in every case, under the governing law, must be whether
they operate or are calculated to operate upon the person to rouse hope of
advantage or fear of prejudice, or by their oppressiveness (to borrow a term
from the English Judges’ Rules) put in doubt at least whether any ensuing
inculpatory statement has been properly elicited. In my view, reinforced by a
reading of the whole record, the lies and associated incidents in this case had
the forbidden effect in inducing the incriminating statement.
Jessup J.A., who was a member of the Court which decided the McLeod
case, said about that case in his judgment in the present case:
In all the circumstances, including the emotional impact on
the accused of the lies told her by the officer which put her in fear, the
court held that the Crown had not satisfied the onus on it of proving the
accused’s statement was voluntary.
The circumstances in the present case are entirely different from
those in the McLeod case. There is no allegation here that the mind of
the accused was affected by the actions of the police officer. No person
thought by the accused to be in authority sought by oppression to coerce, or
even to persuade the accused to make a statement. His statement was made freely
and it was volunteered by him. The circumstances of this case show only that
the accused was mistaken as to the identity of the person with whom he was
talking. The accused
[Page 677]
thought that person was a fellow prisoner, who presented himself
as a sympathetic listener.
For these reasons, in my opinion, the statement was admissible
even if McKnight were to be regarded as a person in authority.
I would dismiss the appeal.
LAMER J.—This is an appeal from a judgment of the Court of Appeal
for Ontario allowing the Crown’s appeal from an acquittal and directing a new
trial.
Appellant was charged in the Court of the General Sessions of the
Peace, in the Judicial District of Ottawa-Carleton, with possession of cannabis
resin for the purpose of trafficking. The case bears on the admissibility of a
confession. Following a voir dire the County Court Judge ruled this
confession inadmissible and directed an acquittal. The circumstances leading to
the arrest, the accused’s statement and the judge’s ruling are to be found in
the agreed statement of facts
submitted by the parties:
On November 9, 1976 at approximately 2:30 p.m., Sergeant
Woods and Constables Lauzon, Carvish and Gervais of the Ottawa Police Force
conducted a search of apartment 1102, 1365 Bank Street in the City of Ottawa
under the authority of a search warrant. On the premises at that time were
Donal Bonner (D.O.B. 26/06/57), Timothy Hrehoriak (D.O.B. 24/12/60) and the
Respondent (D.O.B. 21/12/45). The Respondent advised Constable Gervais that he
lived on the premises along with one Nancy Olson. In one of the bedrooms,
Sergeant Woods located 128.54 grams of hashish, a set of scales, a cutting
knife and a box of tin foil. Upon analysis, the scales and knife were found to
have traces of hashish.
The Respondent was given a police warning and was then
conveyed to the Ottawa City Police Station at 60 Waller Street along with
Bonner and Hrehoriak. Prior to being lodged in a cell, Constable Gervais asked
the Respondent if he was willing to give a statement but he declined to do so.
The Respondent was later removed from the cell, charged with possession of
hashish for the purposes of trafficking and returned to the same cell.
[Page 678]
On November 10, 1976 at approximately 1:00 a.m., Constable
McKnight, a member of the Ottawa City Police Force acting in an undercover
capacity, was placed in an 8’ x 8’ cell at the Ottawa City Police Station
occupied by the Respondent alone. Constable McKnight was placed in the cell on
the instructions of Constable Gervais, the investigating officer, in order to
obtain information from the Respondent concerning the charge against him.
During the trial, a voir dire was conducted on the question of whether
Constable Earl McKnight was a person in authority. At that time, Constable
McKnight was unarmed, wore blue jeans, a blue jacket and brown boots, and had a
four or five day growth of beard. Constable McKnight testified on the voir
dire that the Respondent appeared to be normal and not under the influence
of alcohol. No other persons or police officers were visible from the cell.
Constable McKnight did not identify himself to the Respondent as a member of
the Ottawa City Police Force and the Respondent did not appear to recognize him
as such.
Upon entering the cell, the Respondent spoke first to
constable McKnight by saying that Constable McKnight “looked like a nark”.
Constable McKnight just laughed and the Respondent continued that he looked
like a nark because of the way he was dressed. Constable McKnight explained
that he was dressed like that because he had been fishing. The Respondent then
asked Constable McKnight why he was in jail and he replied that it was because
of a traffic ticket. Constable McKnight asked the Respondent why he was in jail
and the Respondent stated that it was for possession of hashish. While in the
cell, Constable McKnight sat beside the Respondent on the only bench. The
Respondent then told Constable McKnight that he sold hashish for $25.00 for 3
grams, that the hash that he had been caught with had been “fronted” to him and
that he would have to pay the people back $1,000 because he had been “busted”.
The Respondent stated that he would have made $1,800 on the drugs that he had.
Constable McKnight asked if there were many drugs in the City and the
Respondent replied that there were approximately 40 pounds. The Respondent also
stated that he was arrested at his apartment along with his buddy who was in
the next cell. During the conversation, Constable McKnight informed the
Respondent that he was a truck driver from the Pembroke area and had been
fishing so the Respondent would have the impression that he was not a nark and
that he did not know much about drugs. Constable McKnight indicated that people
in the Pembroke area were interested in drugs and that he would be interested
in getting drugs; however, no deal was set up. The Respondent asked Constable
McKnight when he would be getting out and he
[Page 679]
replied that a buddy would be coming down to pay the fine.
The Respondent stated that he had to go to court the next morning because he
was on parole respecting other charges. Constable McKnight was released from
the cell at 1:07 a.m. and made his notes concerning the conversation shortly thereafter.
After Constable McKnight testified on the voir dire the
Respondent called no evidence on the issue of whether Constable McKnight was a
person in authority.
After argument by counsel, His Honour Judge Matheson ruled
that in all the circumstances, Constable McKnight was a person in authority.
No further evidence was called by the Crown on the voir
dire on the issue of whether the statements made by the Respondent to
Constable McKnight were voluntary. The Respondent did not request any other
Crown witnesses to be produced for cross‑examination on the voir dire and
did not call any evidence on this issue.
After argument by counsel, His Honour Judge Matheson ruled
that the “continuation of the intent to obtain a statement by this disguise”
puts into doubt whether the inculpatory statement had properly been elicited
and was therefore inadmissible.
The Crown called no further evidence at trial and at the
request of Crown Counsel and the direction of His Honour Judge Matheson, the
jury returned a verdict of “not guilty” of possession.
The majority in the Court of Appeal (Jessup and Weatherston
JJ.A., Dubin J.A., dissenting) was of the opinion that the police officer to
whom the statement was made was not, for the purpose of determining the
admissibility of the statement, a “person in authority”, and that the
statement, if relevant, was admissible without any voir dire being held
to determine whether it met the special test set out in Ibrahim v. The King.
This conclusion, as regards the police officer, was arrived at by adopting and
applying a subjective test followed by many Canadian courts
which is summarized by Kaufman in his third edition of The Admissi-
[Page 680]
bility of Confessions, in the following terms (at p. 81):
The true test, it is submitted, is highly subjective: Did
the accused truly believe, at the time he made the declaration, that the person
he dealt with had some degree of power over him? In other words, did the
accused think that the person to whom he confessed (or as a result of whose intervention
he confessed) could either make good his promise or carry out his threats? If
so, such person should be treated as a person in authority; if not, the rules
which attach to persons in authority need not be applied, even though the
person, from a purely objective point of view, was in a position of
undoubted authority.
I am in agreement with the Court of Appeal for Ontario that, for
the purpose only of determining whether the statement was or was not obtained
“by fear of prejudice or hope of advantage exercised or held out by a person in
authority”, (Ibrahim v. The King, supra, at p. 609), the test is a
subjective one and that, under the circumstances of this case, Officer McKnight
was not a person in authority.
However, I should add here that whilst the subjectivity of this
test is due to what many consider a rationalization (i.e. the possible
unreliability_ of the statement) of the voluntariness rule as enunciated in Ibrahim
v. The King, (i.e. without fear of prejudice or hope of advantage),
the conclusion that the police officer was not a person in authority is a
fiction that is necessary only if the rule is couched in terms of
voluntariness, and that it is no longer so when the rule is enunciated in terms
of reliability.
Having decided that the statement was not made to a person in
authority, the Ontario Court of Appeal
further stated (at p. 381):
Even if the undercover officer in this case had been
regarded by the accused as a person in authority, the conditions laid down in Ibrahim
as to the voluntariness of the accused’s statements had been met. There is
no suggestion in the agreed facts of a fear of prejudice exercised by Officer
McKnight or a hope of favour held out by him.
[Page 681]
This second conclusion was predicated on the decision of this
Court in the case of R. v. Fitton,
in which it reaffirmed what it had said in Boudreau v. The King,
adopting the often quoted rule set out in Ibrahim, supra, where Lord
Sumner said (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 shewn 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.
It is interesting to note that Lord Sumner went on to say (at pp.
610-11):
It is to be observed that logically these objections all go
to the weight and not to the admissibility of the evidence. What a person
having knowledge about the matter in issue says of it is itself relevant to the
issue as evidence against him. That he made the statement under circumstances
of hope, fear, interest or otherwise strictly goes only to its weight. In an
action of tort evidence of this kind could not be excluded when tendered
against a tortfeasor, though a jury might well be told as prudent men to think
little of it. Even the rule which excludes evidence of statements made by a
prisoner, when they are induced by hope held out, or fear inspired, by a person
in authority, is a rule of policy. “A confession forced from the mind by the
flattery of hope or by the torture of fear comes in so questionable a shape,
when it is to be considered as evidence of guilt, that no credit ought to be
given to it”; Rex v. Warwickshall [sic] ((1783) 1 Leach, 263). It
is not that the law presumes such statements to be untrue, but from the danger
of receiving such evidence judges have thought it better to reject it for the
due administration of justice: Reg. v. Baldry ((1852) 2 Den. Cr. C. 430,
at p. 445). Accordingly, when hope or fear was not in question, such statements
were long regularly admitted as relevant, though with some reluctance and
subject to strong warnings as to their weight.
[Page 682]
In his dissenting opinion, Dubin J.A. of the Ontario Court of
Appeal, after saying (at p. 385) that “…one of the reasons assigned for the
rule, as stated in Ibrahim v. The King, supra, is that a confession made
under such circumstances may be untrue, but it does not follow that where the
truth of the confession is no longer in issue that it necessarily becomes
admissible”, concluded that, whatever may be its philosophical basis, the rule
was not exhaustive. He then went on to recognize that a judge has a discretion
to exclude a statement to a person in authority if it was obtained in a manner
which transgresses his right to remain silent (at p. 386):
In my respectful opinion, the rules respecting confessions
and privilege against self‑incrimination are related. I use that term in
the sense of the right of a person under arrest to remain silent when
questioned by law enforcement officers.
I am in agreement with Dubin J.A. that the reliability test is
not the only test of the admissibility of a statement against an accused. I
also agree that a trial judge should have the power to exclude, whether he had
or not until now, under certain circumstances, statements for reasons,
hereinafter stated, quite unrelated to their reliability and even though these statements
may be of great probative value. I would not however, with deference, predicate
the exercise of that power on an extension of the privilege against
self-crimination that would sanction in that way a suspect’s right to remain
silent (see Marcoux and Solomon v. The Queen).
If and to the extent Dubin J.A. does so, I cannot agree with him. In Marcoux
and Solomon v. The Queen, my brother Dickson speaking for the Court (Laskin
C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré
JJ.) explained the extent to which that doctrine exists in Canada (at pp.
768-9):
[Page 683]
The limit of the privilege against self-incrimination is
clear. The privilege is the privilege of a witness not to answer a question
which may incriminate him. That is all that is meant by the Latin maxim nemo
tenetur seipsum accusare, often incorrectly advanced in support of a much
broader proposition.
…
As applied to witnesses generally, the privilege must be
expressly claimed by the witness when the question is put to him in the witness
box, Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5. As applied to an
accused, the privilege is the right to stand mute. An accused cannot be asked,
much less compelled, to enter the witness box or to answer incriminating questions.
If he chooses to testify, the protective shield, of course, disappears. In
short, the privilege extends to the accused qua witness and not qua accused,
it is concerned with testimonial compulsion specifically and not with
compulsion generally: Attorney-General of Quebec v. Begin [1955] S.C.R.
593; In re Validity of Section 92(4) of the Vehicles Act 1957 (Sask.) [1958]
S.C.R. 608; see also the helpful article “Is there a right against
self-incrimination in Canada” by Professor Ed. Ratushny, (1973) 19 McGill
Law Journal 1.
In Canada the right of a suspect not to say anything to the
police is not the result of a right of no self-crimination but is merely the
exercise by him of the general right enjoyed in this country by anyone to do
whatever one pleases, saying what one pleases or choosing not to say certain
things, unless obliged to do otherwise by law. It is because no law says that a
suspect, save in certain circumstances,
must say anything to the police that we say that he has the right to remain silent,
which is a positive way of explaining that there is on his part no legal
obligation to do otherwise. His right to silence here rests on the same
principle as his right to free speech, but not on a right to no
self-crimination. Therefore any frustration of his choice not to say
anything is not an encroachment to a right to no self-crimination for he has
such a right only “qua witness” and “qua accused” as explained in
Solomon (supra). This is not to say that the fact that an
arrested person’s choice to remain silent has been frustrated is to be
disre-
[Page 684]
garded; it is surely one of the circumstances to be taken into
account by the judge when considering the admissibility of his statement by
applying the test I will describe further on, but it is only one of the
circumstances and would not of necessity result in excluding a statement as
would be the case if suspects enjoyed in Canada as encompassing a privilege
against self-crimination as that which they do in the United States. But I
should like to add here, that I agree with Dubin J.A. that the rule is related
to the privilege against self-crimination for it is, in my opinion, predicated
in part on the right an accused person enjoys not to be compelled to testify;
but in part only, for the rule is also the result of a desire on the part of
the judges to protect the system’s respectability and, as a result, its very
acceptance by its constituency.
Over the years judges and scholars (see Vincent Del Buono,
“Voluntariness and Confessions: A Question of Fact or Question of Law?”,
(1976-77) 19 Crim. L.Q. 100, at pp. 100-01; E.J. Ratushny,
“Self-incrimination: Nailing the Coffin Shut”, (1977-78) 20 Crim. L.Q. 312,
“Unravelling Confessions”, (1970-71) 13 Crim. L.Q. 453; G.A. Martin, “The
Admissibility of Confessions and Statements”, (1962-63) 5 Crim. L.Q. 35; A.C.
Hutchinson and N.R. Withington, “Horvath v. The Queen: Reflections
on the Doctrine of Confessions”, (1980) 18 Osgoode Hall L.J. 146) have minutely
analysed Lord Sumner’s choice of words in Ibrahim in order to determine
the scope of the rule governing the admission of statements by a suspect to
persons in authority (at p. 609): “. 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”.
Some judges have given those words a strict interpretation and
have held that the only circumstances where the exclusionary rule will operate
are to be found in the words “fear of prejudice” and “hope of advantage” and
only when such
[Page 685]
“fear” or “hope” has been “exercised or held out by a person in
authority”.
Others have relied on other passages of the judgment, and have
concluded that those same words should not be regarded as exhaustive, but as
merely illustrative of those circumstances which would render a statement
involuntary (see: Vincent Del Buono, supra, at p. 104). Their reason for
doing so is that they felt that the test was not a true
dictionary-sense-of-the-word “voluntariness” test but in fact a “reliability”
test. This interpretation of Lord Sumner’s use of the word “voluntary” is
justified, they say, by his apparent rationalization of the rule when he quoted
R. v. Warickshall
to the effect that (at pp. 610-11) “A confession forced from the mind by the
flattery of hope or by the torture of fear comes in so questionable a shape,
when it is to be considered as evidence of guilt, that no credit ought to be
given to it”. Others found they had an even wider discretion by relying on another
passage of Lord Sumner’s remarks where he said (at p. 611): “It is not that the
law presumes such statements to be untrue, but from the danger of receiving
such evidence judges have thought it better to reject it for the due
administration of justice.”
Much has been written and said about this rule (voluntariness),
its alleged underlying policy (reliability), and the existence and scope of a
residual discretion. In a recent decision, Alward and Mooney v. The Queen,
this Court appeared to have recognized that the “qualified” voluntariness test
was not to be construed restrictively, was not exhaustive; and that evidence
that anything done by the authorities that casts some doubt as to the accused
having been induced to make a possible unreliable statement will be
sufficient to have it excluded, whether what the authorities have done is or is
not susceptible of instilling in the mind of the accused “fear of prejudice” or
of creating “hope of advantage”.
[Page 686]
In that case, the accused Alward had made a statement to the
police whilst under arrest on suspicion of murder. The statement was elicited
as the result of a lie by a police officer to the effect that the victim, who
in reality was still in a comatose state, had recovered consciousness and would
be able to identify his assailants. A full bench of this Court agreed with the
conclusion of the Court of Appeal for New Brunswick when that Court said, in
dealing with the admissibility of that statement, per Limerick J.A. (at
p. 562):
The true test, therefore, is did the evidence adduced by the
Crown establish that nothing, said or done by any person in authority, could
have induced the accused to make a statement which was or might be untrue
because thereof. The Crown met that test.
Though this Court simply stated (at p. 563): “This Court agreed
with that conclusion”, it appears to me to be a clear and unequivocal finding
that should have put an end, if not to all controversies surrounding the
confession rule, at least to those concerning whether the rule is mainly a
reliability test or a voluntariness one, and, if reliability be the test,
whether it is limited to “fear of prejudice” and “hope of advantage” or
general. The three sets of reasons to be found a year later in this Court’s
decision in the case of Horvath v. The Queen,
are an indication that such is far from being the case.
While reliability is invoked by most courts as being the
rationale for the rule when dealing with lies by the police as to their true
identity (i.e. the subjective test as to whether a person is a person in
authority), there is a general reluctance to adjust the formulation of the rule
to that alleged rationale. There is also a feeling that, whether the test is
voluntariness or reliability, it is not exhaustive.
This reluctance is quite justified, for reliability, as I will
attempt to demonstrate later on, is not
[Page 687]
really the rationale for the rule but part of the rule itself,
part of the test.
Indeed, why have a special exclusionary rule dealing with the
reliability of usually highly prejudicial statements made by suspects to
persons in authority when we already have an exclusionary rule dealing with
unduly prejudicial evidence that is of slight probative value (R. v.
Wray,
R. v. Cook,
Noor Mohamed v. The King,
Stirland v. D.P.P.,
Maxwell v. D.P.P.).
Assuming that, not to be redundant, this special exclusionary rule is intended
to deal with statements that could not be excluded as being of slight probative
value, one then wonders why we have, as a question of policy, imposed a higher
standard of probative value for “statements” before letting the trier of fact
be apprised of the very existence of such evidence. Put in other words, what is
the policy consideration that overrides the application of the fundamental evidentiary
rule that the weight of evidence, when relevant and, if highly prejudicial, of
more than slight probative value, is for the trier of fact? Indicia as to the
answer to this question are to be found in the very formulation of the test,
whether one adopts, as this Court did, Limerick J.A.’s test in Alward and
Mooney (supra) or that of Lord Sumner in Ibrahim (supra).
If the concern with statements made to persons in authority was primarily a
concern about their reliability why then should we only be concerned when “the
hope” or “the fear” entertained by the suspect is due to its having been “exercised
or held out by a person in authority” (the Ibrahim formulation) or
only when the unreliability is the result of something having been “said or
done by any person in authority” (the Alward and Mooney formulation)?
The other statements, those where the hope or fear or unreliability is not the
doing of the authorities, are no less unreliable; furthermore, it is not
because the possible unreliability of the statement is the result of what
persons in authority have said or done that the trier of fact is any less
capable of weighing that evidence and should be
[Page 688]
precluded from doing so through an exclusionary rule.
As regards whether the test, be it reliability or voluntariness,
is considered by judges as being exhaustive, Chief Justice Freedman in an
article he wrote (S. Freedman, “Admissions and Confessions”, at pp. 95 et
seq., in R.E. Salhany and R.J. Carter, ed., Studies in Canadian Criminal
Evidence, 1972) had this to say (at p. 99):
It is justice then that we seek, and within its broad
framework we may find the true reasons for the rule excluding induced
confessions. Undoubtedly, as already stated, the main reason for excluding them
is the danger that they may be untrue. But there are other reasons, stoutly
disclaimed by some judges, openly professed by others, and silently
acknowledged by still others—the last perhaps being an instance of an
‘inarticulate major premise’ playing its role in decision-making. These
reasons, all of them, are rooted in history. They are touched with memories of
torture and the rack, they are bound up with the cause of individual freedom, and
they reflect a deep concern for the integrity of the judicial process. [The
underlining is mine]
A close look at the reported cases substantiates quite
convincingly what Chief Justice Freedman said; trial judges are sanctioning,
when appropriate, what they think is, under the circumstances of each case,
seriously unfair, oppressive, or undesirable conduct on the part of persons in
authority by excluding even reliable statements through a liberal
interpretation of the voluntariness rule or of the reliability test, whichever
is more convenient, and quite understandably through a more stringent
application of the rules of evidence concerning the credibility of witnesses
and the burdens of proof and of persuasion that rest upon the shoulders of the
authorities.
Former Chief Justice Gale, of Ontario, had this to say when,
as a trial judge, he delivered judgment on a voir dire (R. v.
McCorkell, cited in “Notes and Comments”, (1964-65) 7 Crim. L.Q. 395, at
pp. 396-7):
[Page 689]
…I am prepared to conclude that they went there in perfectly
good faith to speak to the accused. They cautioned him again and he made
certain disclosures. Strictly speaking, I concede that these statements were
probably voluntary on his part within the meaning of that word under the
authorities. However, in my discretion, I am not going to allow them to be
admitted as part of the trial, believing as I do that the sanctity of the
relationship between a solicitor and his client is not to be lightly frittered
away and ought not to be violated, even though innocently as in this case.
It is my opinion that once an accused person has retained
counsel to the knowledge of the police or other persons in authority, the
latter ought not to endeavour to interview and question that accused person
without first seeking and obtaining the concurrence of his solicitor. So
strong is my view in this respect that I am therefore exercising my discretion
in the way I have indicated, perhaps wrongly, because, strictly speaking, the
statement thus procured was probably admissible. I decline, however, to
give any encouragement in the future to persons in authority to circumvent the
position of an accused’s solicitor by going directly to speak to the accused.
[The underlining is mine]
He was one of those who, to use the terms of Chief Justice
Freedman, “openly professed” what a great many more “silently”, but not less
effectively, “acknowledge”.
Bringing about a guilty suspect to admit guilt in a statement is
not in itself an improper activity. It is only to be repressed if it is done in
a way that offends our basic values, that is in a manner which be contrary to
the rules of law we have developed for their protection and furtherance. Our
criminal justice system has vested the courts with two responsibilities: the
protection of the innocent against conviction; and the protection of the system
itself by ensuring that the repression of crime through the conviction of the
guilty is done in a way which reflects our fundamental values as a society.
These concerns have brought about the elaboration by judges and legislatures of
procedural and evidentiary safeguards. The concern for the innocent resulted in
the reasonable doubt rule (the burden of persuasion) and, considering the
individual citizen’s position when facing the awesome power of the state, in
our putting on the
[Page 690]
shoulders of the state the burden of proof; the concern for the
process’ respectability resulted in three corollaries:
1. the right for any person not to be convicted through the
use against him or her of evidence adduced under oath through compulsion by the
law (the protection afforded by s. 5 of the Canada Evidence Act, R.S.C. 1970,c.E-10),
2. the right for an accused not to be compelled as a witness
at his own trial,
3. the exclusion of statements the admission of which
because of conduct on the part of authorities would be more damaging to the
systems reputation than that resulting from a guilty accused’s acquittal.
It is on the second and third of these corollaries that the rule
as regards the admissibility of confessions is predicated and it is with regard
to this rationalization that the rule should be formulated and then applied.
As I have said earlier, if there existed in Canada a general
right to no self-crimination, any statement made by a person to persons in
authority other than a voluntary statement would not, at a minimum, be
admissible in evidence against that person at his or her trial. As that right
(apart from the protection of s. 5(2) of the Canada Evidence Act) is
limited to one’s right not to be compelled as a witness in one’s trial, it is
only if and to the extent the statement is used by the Crown in a way that
would amount to such compulsion that the statement should be excluded.
Evidence tendered by the Crown will usually quite normally have
the effect of eventually forcing the accused to take the stand or stand convicted.
One could not say that by doing so the Crown transgresses the accused’s right
to stay mute. The accused’s right to stay mute or to testify is a choice he
will make in light of the probative value of the evidence adduced in and
against his interest.
Special considerations however arise when dealing with
statements, which, as we all know, are, when tendered in evidence by the Crown,
in some way damaging to the accused’s defence. That there
[Page 691]
need be a special approach to statements is not because they are
frequently unreliable but because any unreliability surrounding them will
usually be adduced only through the accused’s own testimony. Elements affecting
a statement’s reliability, when present, generally have the effect of forcing
the accused into the witness stand and then, if this were to happen before the
trier of fact, being subject to cross-examination at large. But this is equally
so of other types of evidence and is not, nor should it be, reason in itself
for excluding evidence. One surely cannot say that because the Crown is
tendering as evidence a statement of alleged questionable reliability that it
is, any more so than in the case of other types of evidence, indirectly
transgressing the accused’s right not to testify by forcing him to take the
stand and to attack its reliability. But I think that such is the case if the
Crown’s agents are responsible by what they said or did for the possible
presence of these elements of unreliability, whatever might those words or that
conduct have been.
As a result a first conclusion may be drawn: a statement before
being left to the trier of fact for consideration of its probative value should
be the object of a voir dire in order to determine, not whether the
statement is or is not reliable, but whether the authorities have done or said
anything that could have induced the accused to make a statement which was or
might be untrue. It is of the utmost importance to keep in mind that the
inquiry is not concerned with reliability but with the authorities’ conduct as
regards reliability. In passing, I should like to mention that considering
whether a confession, the reliability of which has been confirmed by real
evidence, should be treated differently from others, whether an accused
testifying oh a voir dire should be asked questions relating to the
statement’s truthfulness, and indeed the very definition of a “person in
authority”, are matters that, given the opportunity to do so, should be
considered in the light of that important distinction.
This first conclusion leads naturally to certain others: that
reliability is not the rationale of the voluntariness test, also, that
voluntariness, as Lord
[Page 692]
Sumner himself recognized in Ibrahim, (“voluntariness” but
“in the sense that it has not been obtained…”) is not really the test.
The first rationale for the confession rule is the repression of
conduct on the part of the authorities that indirectly frustrates an accused’s
right not to testify; the test that corresponds to this first rationale is whether
the authorities did anything in eliciting those statements that might affect
its reliability.
Would this then mean that voluntariness is of no relevance
whatever? I think not. Clearly, the elicitation, against a suspect’s will, of a
statement usually will, though not always, be the result on the part of the
authorities of conduct that will be such as might affect that statement’s
reliability. But what if not? What if, as in this case, the statement was the
result of a ruse or again what if the authorities resorted to truth serum, or
hypnotism, but did nothing to render that statement unreliable? As I have
stated earlier, mere lack of voluntariness cannot as such be a reason for
excluding a statement as there is no general right to no self-crimination.
Now let us assume that the statement is unreliable, but through
no fault on the part of the authorities; if at the same time it was extracted
from the suspect against his will as a result of what the authorities have said
or did, could it not be argued that, by eliciting the statement, the
authorities, though not responsible for unreliable evidence going to the trier
of fact, are none the less responsible for the accused’s having to take the
stand and that, as a result, all involuntary statements should be excluded as a
breach by the Crown of the accused’s right not to be compelled to testify?
It is of importance, before answering this question, to bear in
mind the difference between the situation where the authorities will be
responsible for the trier of fact being given a possible unreli-
[Page 693]
able statement by conduct which is the very cause of such
unreliability and that where they are responsible but only because they
elicited such a statement against the accused’s will.
Indeed, though we have shifted from considering conduct of the
authorities that might affect the statement’s reliability to that of
considering their conduct which affects a suspect’s free will, we have not
changed the purpose for doing so, namely, the protection of the accused’s right
not to be compelled to testify at his trial; we are therefore concerned with
his free will only to the extent its frustration has an adverse effect on that
right. If lack of voluntariness, when considered in this way, were to result
automatically in the exclusion of all unwilling statements this would then be,
in my opinion, an overextension of the right of an accused to stand mute, and
would amount to introducing indirectly into our system a facet of the general
privilege of no self-crimination we do not have in this country. Should this
then mean that lack of voluntariness is but relevant if it is the result of
conduct on the part of the authorities that might affect the statement’s
reliability? In fact, that voluntariness per se is irrelevant? And if this
is so, would this necessarily mean that the reliability test is exhaustive.
One should expect but few of the guilty to admit spontaneously
their wrongdoing and should recognize that such admissions when made in or out
of court are, more often than not, the result of the effectiveness of the
investigative forces. As I have said earlier, there is nothing inherently wrong
in outsmarting criminals into admitting their guilt or into jeopardizing the
liberty they might be tempted to take with the truth in the course of their
trial. Our concern with voluntariness, apart from its aforementioned relation
to unreliability, is part of, and, for that reason, in a sense limited to when
it equates to, a more general concern we have for the integrity of the criminal
justice system. As the criminal justice system exists for the protection of the
values we cherish the most as a society, we
[Page 694]
consider it counter-productive to the very aims and purposes of
the system to admit as evidence against an accused a statement elicited by
means that amount to a blatant disregard for those values and others of equal
importance we are seeking to protect through the prosecution of his alleged
crime. Lack of voluntariness (when not due to conduct by the authorities
resulting in possible unreliability) will be of concern if the methods resorted
to by the authorities in eliciting that unwilling statement have that negative
effect.
This concern by the courts for the protection of the integrity of
the system has always been present when defining voluntariness, its alleged (in
my opinion wrongly so) rationale, and the existence of some residual
discretion. Unfortunately, because this concern was not clearly identified and
dealt with in an autonomous and comprehensive way, endeavours to rationalize
the confession rule have given somewhat blurred results. This difficulty was
compounded by the fact that we have tried to accommodate this concern within
the two parameters of the Ibrahim pronouncement: voluntariness and
reliability. As a result, the extent to which we have stretched the
voluntariness test to deal on an ad hoc basis with statements that had
to be excluded but could not be so through the reliability test has clashed
with another quite legitimate concern we have also had not to jeopardize the
police in their work. The reasons given by this Court in Horvath and
indeed in many other cases by other courts amply illustrate the point. There
are situations where it is desirable that a statement that is not voluntary be
admitted, and there are other situations where it should certainly not—(I am
speaking here of voluntariness in a wide sense and where lack of voluntariness
is not the result of conduct by the authorities that would be dealt with
through the reliability test). In fact there are situations where a statement,
though given voluntarily in any sense one can reasonably give to that word and
notwithstanding the absence of any conduct on the part of the authorities that
might affect its reliability, should nevertheless be exclud-
[Page 695]
ed as seriously damaging the system’s respectability. Lack of
voluntariness is but a symptom that might indicate, but not necessarily so,
that the authorities have done something that could have induced the accused to
make an unreliable statement or that the statement was elicited in a way
damaging to the system’s integrity. For this reason it is preferable that
voluntariness not be referred to when enunciating the rule (nor indirectly so
through the use of expressions such as—oppression—not the result of a free
operating mind—the result of a complete emotional disintegration) as it is only
one of the factors to be considered along with many others, when deciding if
the tendering as evidence of a statement would damage the system’s integrity or
whether it would amount to a transgression of the accused’s right not to
testify.
As regards the reliability test, I find it convenient and
appropriate to retain the Alward formulation since it seems to have
already met with some approval in this Court, to which should be added, in
order to deal with our concern for the integrity of the judicial process, a
norm and its formulation that has already met with the approval of Parliament
when enacting s. 178.16 of the Criminal Code:
178.16 (1) A private communication that has been
intercepted is inadmissible as evidence against the originator of the
communication or the person intended by the originator to receive it unless
(a) the interception was lawfully made; or
(b) the originator thereof or the person intended by
the originator to receive it has expressly consented to the admission thereof;
but evidence obtained directly or indirectly as a result of
information acquired by interception of a private communication is not
inadmissible by reason only that the private communication is itself
inadmissible as evidence.
(2) Notwithstanding subsection (1), the judge or
magistrate presiding at any proceedings may refuse to admit evidence obtained
directly or indirectly as a result of information acquired by interception of a
private communication that is itself inadmissible as evidence
[Page 696]
where he is of the opinion that the admission thereof
would bring the administration of justice into disrepute. [The underlining
is mine]
…
Therefore, the rules regarding the admissibility of statements by
an accused to persons in authority may be enunciated in the following manner:
1. A statement made by the accused to a person in authority
is inadmissible if tendered by the prosecution in a criminal proceeding unless
the judge is satisfied beyond a reasonable doubt that nothing said or done by
any person in authority could have induced the accused to make a statement
which was or might be untrue;
2. A statement made by the accused to a person in authority
and tendered by the prosecution in a criminal proceeding against him, though
elicited under circumstances which would not render it inadmissible, shall
nevertheless be excluded if its use in the proceedings would, as a result of
what was said or done by any person in authority in eliciting the statement,
bring the administration of justice into disrepute.
I would emphasize that under the above mentioned second rule the
judge is not exercising a pure discretion to exclude, as is the case under s.
178.16(2) of the Criminal Code, and that his finding is to be dealt with
in appeal as any other finding, subject to the differences and limits of the
Appeal Court’s jurisdiction as defined by ss. 603 and 605 of the Criminal
Code.
I hasten to say also that, if the second portion of the rule is
not a true discretion, it is even less a blanket discretion given judges to
repudiate through an exclusionary rule any conduct on the part of the
authorities a given judge might consider somewhat unfortunate, distasteful or
inappropriate. There first must be a clear connection between the obtaining of
the statement and the conduct; furthermore that conduct must be so shocking as
to justify the judicial branch of the criminal justice system in feeling that,
short of disassociating itself from such conduct through rejection of the
statement, its reputation and, as a result, that of the whole criminal justice
system, would be brought into disrepute.
[Page 697]
The judge, in determining whether under the circumstances the use
of the statement in the proceedings would bring the administration of justice
into disrepute, should consider all of the circumstances of the proceedings,
the manner in which the statement was obtained, the degree to which there was a
breach of social values, the seriousness of the charge, the effect the
exclusion would have on the result of the proceedings. It must also be borne in
mind that the investigation of crime and the detection of criminals is not a
game to be governed by the Marquess of Queens-bury rules. The authorities, in
dealing with shrewd and often sophisticated criminals, must sometimes of
necessity resort to tricks or other forms of deceit and should not through the
rule be hampered in their work. What should be repressed vigorously is conduct
on their part that shocks the community. That a police officer pretend to be a
lock-up chaplain and hear a suspect’s confession is conduct that shocks the
community; so is pretending to be the duty legal-aid lawyer eliciting in that
way incriminating statements from suspects or accused; injecting Pentothal into
a diabetic suspect pretending it is his daily shot of insulin and using his
statement in evidence would also shock the community; but generally speaking,
pretending to be a hard drug addict to break a drug ring would not shock the
community; nor would, as in this case, pretending to be a truck driver to
secure the conviction of a trafficker; in fact, what would shock the community
would be preventing the police from resorting to such a trick.
It must be remembered that the first part of the rule, the
reliability test, will have dealt with most of the situations and that the
second part of the rule would come into operation on very rare occasions since
such conduct would usually have some effect on the reliability of the
statement. Nevertheless, it is in my opinion all the more important to have a
rule that is available to deal with those situations which, thanks to the high
standard of conduct of the vast majority of our police officers, will be very
few but for that reason all the more deserving of immediate and vigorous
rebuke.
[Page 698]
Applying the rule to this case, the trial judge had to ask
himself if he was satisfied beyond a reasonable doubt that the lie by Constable
McKnight to the accused could not have induced him into making a statement that
might be untrue. It appears from what he said that he was satisfied that the
lie did not have that effect. Applying the rule in the Ibrahim formulation
he said (A.C., at p. 31):
In the instant case I am satisfied that what Rothman said to
Const. Earl Grant McKnight, and I might add, who was acting in the performance
of his duty, would seem to have been free of both fear and prejudice, and free
as well of hope of advantage by reason of the facts that he had been mislead or
tricked into believing that he was speaking to a person actually held in
custody.
But, he then went on to say:
However, in light of the facts of this particular case, I
believe that continuation of the intent to obtain a statement by this disguise
puts into doubt whether the inculpatory statement had been properly elicited,
and I feel that in the circumstances that I must rule against admissibility
herein.
In coming to this last conclusion he committed in my opinion an
error in law by applying the wrong test. To exclude the statement it was not
sufficient that the judge have a doubt that it was elicited improperly; he had
to find that the improper conduct on the part of the police, that is, to use
his words, the “continuation of the intent to obtain a statement by this disguise”,
would bring the administration of justice into disrepute.
Applying that test, I cannot but come to the conclusion that
there was no impropriety committed on the part of the police that would result
in bringing the administration of justice into disrepute. I, therefore, agree
with the majority of the Court of Appeal that the trial judge erred in law and
that a new trial should be ordered.
I would therefore dismiss the appeal.
Appeal dismissed, LASKIN C.J. and ESTEY J. dissenting.
Solicitor for the appellant: Scott T. Milloy, Ottawa.
Solicitor for the respondent: R. Tassé, Ottawa.
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