Supreme Court of Canada
Boudreau
v. The King, [1949] S.C.R. 262
Date:
1949-04-12
Gaston Boudreau Appellant;
and
His Majesty The King Respondent.
1949: February 7, 8; 1949: April 12.
Present: Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock,
Estey and Locke JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE,
PROVINCE OF QUEBEC
Criminal law—Murder—Evidence—Statements made to police
after questioning—Whether made voluntarily—Whether incriminating or
exculpatory—Admissibility—Criminal Code s. 259.
While in custody, on a coroner's warrant, as a material
witness, during the investigation of a murder case, appellant made two written
statements to the police during the course of questions put to him by them. For
the first statement, the usual warning was not given before accused bad
completed his verbal answers, but it was given before the written statement was
signed. This statement contained an account of the movements of the appellant
for some days before and after the day of the commission of the crime, which
indicated that he could not have been concerned in the crime. It also contained
admissions of his intimate relations with the wife of the murdered man. The
second statement before which a warning was given, reiterated the substance of
the first, but added a complete confession of the commission of the crime by
appellant. The trial judge ruled that these statements were admissible in
evidence and the majority in the Court of Appeal agreed with him.
Held: Estey J. dissenting, that both statements were voluntarily
made and that the appeal should be dismissed.
Held also, that the first statement was incriminating
and not exculpatory (The Chief Justice and Taschereau J. contra).
Held further, that the dictum in Gach v. The
King [1943] S.C.R. '254 that "when a person has been arrested, all
confessions made to a person in authority, as a result of questioning, are
inadmissible in evidence, unless proper caution has been given" was
obiter: Ibrahim v. The King [1914] A.C. 599 and Prosko v. The
King 63 S.C.R. 226 followed. (The Chief Justice and Taschereau J.
expressing the opinion that the Gach case had no application to the
present case as, in their view, the first statement was exculpatory).
Per Estey J. (dissenting): The first statement was
incriminating and the trial judge misdirected himself to the effect that the
statement was exculpatory and not evidence against the accused. That though a
warning was given prior to the second statement, it was immediately followed by
questions and incidents which were not sufficiently disclosed by the evidence
to justify a conclusion that the statement was voluntarily made.
APPEAL from the judgment of the Court of King's Bench,
appeal side, province of Quebec , dismissing
[Page 263]
(Bissonnette J.A. dissenting) the appellant's appeal from
his conviction, at trial before Coté J. and a jury, on a charge of murder.
Hon. Lucien Gendron K.C. for the appellant.
Nöel Dorion K.C. for the respondent.
The judgment of the Chief Justice and of Taschereau J. was
delivered by
Taschereau, J.:—The
appellant Gaston Boudreau was charged with the murder of Joseph Laplante, and
on the 26th of September, 1947, he was found guilty and condemned to be hanged.
This conviction was upheld by the Court of King's Bench, Province of Quebec ,
Mr. Justice Bissonnette dissenting, on the ground that certain confessions made
by the appellant were illegally admitted in evidence.
The main facts leading to these alleged confessions which
are impugned, may be briefly stated as follows:
On the morning of May the 29, 1947, the body of Laplante was
found on the highway, leading to Lake Castagnier, a small municipality near
Amos, Abitibi, P.Q, The police authorities started immediately to investigate,
and the Coroner's inquest, originally fixed for the 29th of May, was adjourned sine
die by Coroner Brousseau until further evidence could be obtained. It was
resumed on the 6th of June, 1947.
At first, Constable Lefebvre, Sergeant Dupont, Sergeant
Massue, Detective Oggier and Dr. Roussel, legal medico expert for the Provincial
Government, who had come from Amos and Montreal to try and solve the mystery of
Laplante's death, which was obviously a brutal murder, had but very scant clues
leading to the discovery of the author of this crime.
On Sunday, the 1st of June, Lefebvre, Oggier and Dr. Roussel
went at Laplante's house where the body was exposed. There, they saw amongst
others, Mrs. Laplante and Gaston Boudreau, the appellant in the present case.
As Boudreau looked nervous, he was asked by Oggier to follow him, and was brought
the same evening to Amos at the police headquarters. He was there put under the
[Page 264]
supervision of the jailer, in the Constable's room, and
Sergeant Massue telephoned the Coroner to obtain the necessary authorization to
detain him as an important witness. This authorization was given verbally on
Sunday 'night, and the next morning, Massue received by mail a written
authorization to detain Boudreau.
On that morning, Massue summoned Boudreau in his office and
told him that he was held as an important witness. In view of the fact that
Boudreau's friendship with Mrs. Laplante was publicly known, it was decided to
ask him a few questions, and on Tuesday evening, at about eight thirty, Massue
questioned him on his movements during the week of the murder. Without being
warned, Boudreau said that he had left the previous Tuesday to go hunting at a
place called Canton Vassal, and that he had taken with him a shot gun. He
explained his run in the bush where he had sprung his traps, his return on foot
the following Saturday to one Therrien's house, and then to his home in a taxi
with one Carpentier. He also gave some information concerning his fire-arms,
his cartridges and the result of his hunt. Massue then pursued further his
investigation, and asked him about his relations with Mrs. Laplante. Boudreau
freely told the circumstances in which he had met her, and the fact unknown to
the police, that she was his mistress.
Boudreau was then asked if he was willing to repeat his
statement so that it could be taken in writing, and he agreed without hesitation.
Mr. Z. Bacon, secretary at the police headquarters, took down word for word
Boudreau's statement. As the sheet of paper on which the answers were to be
typewritten bore the regular warning, it was read to the accused before
anything was committed to writing. Upon completion, the whole document
including the warning, was read to the appellant who signed it after having
been sworn by a Justice of the Peace.
Oggier continued his investigation. It was discovered that
the pellets found in Laplante's skull were BB Gauge, shot very likely from a 12
gauge shot gun, the same calibre as the one found in Aubuchon's house and
belonging to Boudreau. The cartridges he had in his house were also BB. This
new evidence strengthened the detective's suspicions which at first were very
slight, but were, nevertheless
[Page 265]
still quite insufficient to charge Boudreau with murder.
There was no direct evidence to link him with the commission of the crime.
On the 5th of June, when Oggier returned from Lake
Castagnier with Massue, it was decided to call Boudreau back to obtain from him
additional information. Massue told him that he was held as an important
witness concerning Laplante's death, and warned him that he was not
obliged to talk, but that if he wished to say anything, it could be used as
evidence before the Court. Boudreau then volunteered to give further
information. He gave additional details concerning his intimacy with Mrs.
Laplante, and while he was talking, Massue left the office to get a glass of
water, and the accused spontaneously admitted to Oggier, without any question
being put to him: "I may as well tell you, I killed him." Oggier
called Massue back, and in the presence of Oggier and Massue Boudreau told the
whole story of how he killed Laplante. This statement was typewritten by an
employee of the police, and sworn to by Boudreau.
The learned trial judge ruled that these statements were
admissible in evidence, and the majority of the Court of Appeal agreed
with him.
The law concerning the admissibility of statements made to
persons in authority, finds its application only when these statements are 'of
an incriminating nature. The first statement made by the appellant on the 2nd
of June to. Massue, was not in my opinion of that 'character, and nothing can
be found in it, which directly or indirectly tends to connect the appellant
with Laplante's murder. In fact, Boudreau denied all participation in the
offence, by telling all that he had done in the course of his hunting trip. His
statement was exculpatory. The admission of his intimacy with Mrs. Laplante may
at the most constitute a possible motive, but cannot in itself be considered as
evidence of guilt. It does not show in the remotest way that the appellant was
involved in Laplante's death.
Counsel for the appellant has cited the case of Gach v.
The King . I do not think that the present case
can be governed by that case, where the accused had made confessions of an
incriminating nature. The Court
[Page 266]
held that in view of the circumstances revealed by the
evidence, the accused was entitled to the same protection, before being
questioned by a person in authority, as if he had been in custody.
As to the second statement made on June the 5th, it is said in
the dissenting judgment of Mr. Justice Bissonnette, that it was a logical
sequence of the first one, and therefore became illegal, notwithstanding the
warning by the police officers. With due respect, I do not agree with this
contention. I fail to see anything in the first statement that could in any way
influence the second one, and be an inducement for Boudreau to make it to the
police. Boudreau spoke freely after having been warned, and I have no doubt
that it is without fear and without a hope of advantage from the detectives,
that he made the minutely detailed recital of this premeditated crime. The
spontaneity of that part of the confession, dealing with the actual killing,
establishes clearly its voluntary character, and this, with all the other circumstances
shown at the trial, leaves no doubt in my mind, that the conclusions reached by
the learned trial judge on the "voir-dire", were right.
I would dismiss the appeal.
Kerwin J.:—The
first statement has been treated by the majority of the judges in the Courts
below as exculpatory and I understand that that is also the view in this Court
of my lord the Chief Justice and my brother Taschereau. There is no doubt,
however, that the statement affords a possible motive for the murder, and in my
opinion that would be sufficient to warrant applying the rule, if it exists,
that once a person is under arrest any statement given by him in answer to
questions by those in authority is inadmissible unless preceded by a proper
warning. It was argued that such a rule was laid down by this Court in Gach v.
The King . Mr. Justice Taschereau, who spoke for
the majority in that case, is of opinion that the decision does not apply but
that is because, in his view, the first statement given by Boudreau was
exculpatory. For the reason given, I am, with respect, unable to concur and it
therefore becomes necessary to consider the Gach decision.
[Page 267]
I believe it is agreed that it was sufficient for the
disposition of that appeal to decide that the statement there in
issue was given as a result of a threat and that the following statement, at
page 254, was therefore unnecessary for the actual decision:—
There is no doubt that when a person has been arrested, all
confessions made to a person in authority, as a result of questioning, are
inadmissible in evidence unless proper caution has been given. This rule which
is found in Canadian and British law is based on the sound principle that
confessions must be free from fear, and not inspired by a hope of advantage
which an accused may expect from a person in authority.
This statement is couched in very broad terms and, if read
in its widest sense, would prevent, for instance, the placing in evidence of
any incriminating answers to questions put by a police officer to a person
arrested at the scene of a crime immediately after its commission. It has been
construed to change the law as it was considered to be prior to Gach,—by the
Court of Appeal for Saskatchewan in Rex v. Scory , and by
the dissenting judge in the Court of Appeal in the present case and
is really the basis of the appeal to this Court.
Again with great respect, I think it advisable that it
should now be stated clearly what this Court considers the law to be. My view
is that it has not been changed from that set out in Ibrahim v. Rex
and Rex v. Prosko . The fundamental question is whether a
confession of an accused offered in evidence is voluntary. The mere fact that a
warning was given is not necessarily decisive in favour of admissibility but,
on the other hand, the absence of a warning should not bind the hands of the
Court so as to compel it to rule out a statement. All the surrounding
circumstances must be investigated and, if upon their review the Court is not
satisfied of the voluntary nature of the admission, the statement will be
rejected. Accordingly, the presence or absence of a warning will be a factor
and, in many cases, an important one.
In the present case the accused gave a second statement in
which is repeated the admissions of his intimacy with the deceased's wife
contained in the first statement but, in addition, contained an admission of
the slaying. The second statement was made after a proper warning. The
[Page 268]
trial judge admitted both in evidence and notwithstanding
that he admitted the first because of his view that it was exculpatory, I am
not prepared to disagree with his conclusion as to either. The police were not
compelled to tell the accused specifically that notwithstanding his first
statement he was not obliged to make another, and the first contains nothing
that is not incorporated in the latter.
The appeal should be dismissed.
Rand, J.:—The
appellant Boudreau was 'Convicted of murder and the point of dissent on which
he comes to this Court is the improper reception of two written statements, the
first containing an admission of intimacy with the wife of the murdered man and
the second, in addition to a repetition and an elaboration of the first
admission, a full confession of the deed itself. At the time of making them he
was being held under a coroner's warrant as a material witness. There was no
more than a suspicion against him when in the first conversation with police
officers in which questions were asked him he purported to detail his movements
on the two or three days before the death and admitted the intimacy. Having
consented to make the statement in writing, a justice of the peace was summoned
and the statement made out, signed and sworn to by him. Before the signing, the
justice read out the words of the usual warning which happened to be printed
across the top of the paper. Two days later, after a formal warning, a further
discussion took place with two officers and while one of them was momentarily
out of the room and after a reference had been made to his mother, Boudreau
suddenly burst out with the words "j'aime autant vous le dire: c'est moi
qui l'a tué." This was followed by details. He then, as in the first case,
consented to have the statement put in writing, and a like course was followed
as before.
The objection is that the first oral admission, without
warning, of what, in my opinion, was, in the circumstances, an incriminating
fact, nullified both statements: that, having committed himself so far, what
followed was its compulsive sequence, unless, which was not the case, the
warning on the second occasion had so specifically dealt with the previous
statement as to efface any effect that might then have remained on his mind.
[Page 269]
In support of this position, Rex v. Gach ,
is cited. Mr. Gendron argued that what was formerly a rule of practice under
which the trial judge could and almost invariably did but was not bound to rule
out confessions resulting from questions put to a person under arrest by one in
authority without a warning has, by that decision, been converted into an
inflexible rule of law; and it is pointed out that that view of it has been
taken by the Court of Appeal for Saskatchewan in Rex v. Scory .
The particular language from which this conclusion is drawn is that of
Taschereau J. in the following paragraph:—
There is no doubt that when a person has been arrested, all
confessions made to a person in authority, as a result of questioning, are
inadmissible in evidence unless proper caution has been given. This rule which
is found in Canadian and British law is based on the sound principle that
confessions must be free from fear, and not inspired by a hope of advantage
which an accused may expect from a person in authority.
As the reasons of both Kerwin, J. and Taschereau, J. show,
there was in the case clear evidence of a threat on the part of the officer,
and the facts which might have called for such an examination of the rule as is
suggested were not present. At the most, then, it could be only a dictum: but I
am bound to say that I cannot take the language as intended to do more than to
state the existing rule. It is, therefore, I think, a misinterpretation of this
decision to treat it as having effected a significant change in the character
of the rule, and the point 'as put to us by Mr. Gendron fails.
The cases of Ibrahim v. Rex , Rex
v. Voisin and Rex v. Prosko
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
[Page 270]
case. The underlying and controlling question then remains:
is the statement freely and voluntarily made? Here the trial judge found that
it was. It would be a serious error to place the ordinary modes of
investigation of crime in a strait jacket of artificial rules; and the true
protection against improper interrogation or any kind of pressure or inducement
is to leave the broad question to the court. Rigid formulas1 can be
both meaningless to the weakling and absurd to the sophisticated or hardened
criminal; and to introduce a new rite as an inflexible preliminary condition
would serve no genuine interest of the accused and but add an unreal formalism
to that vital branch of the administration of justice.
I do not mean to imply any right on the part of officers to
interrogate or to give countenance or approval to the practice; I leave it as
it is, a circumstance frequently presented to courts which is balanced between
a virtually inevitable tendency and the danger of abuse.
The appeal must therefore be dismissed.
The judgment of Kellock and Locke JJ. was delivered by
Kellock, J.:—This
appeal comes to this court upon the basis of the dissenting judgment of
Bissonnette J. in the court below , which affirmed the conviction of the
appellant by the Superior Court on a charge of murder. The questions raised
involve the admissibility of two statements made by the appellant to police
officers during the course of questions put to him by them on two different
occasions. On the first occasion the usual warning was not given until the
appellant had completed his verbal answers but it was given before his
statement was committed to writing and signed by him. This statement contained
a circumstantial account of the movements of the appellant for some days before
and after the day upon which the crime was committed, which indicated that he
could not have been concerned in the crime. It also contained admissions
however, with respect to relations existing between the appellant and the wife
of the murdered man.
The second statement reiterated the substance of the first,
but added a complete and circumstantial account of the commission of the crime
by the appellant. Mr. Justice
[Page 271]
Bissonnette treated the first statement as having been made
without a warning and he considered it inadmissible on the ground that it had
been laid down by this court in the case of Rex v. Gach ,
that lack of warning in any case rendered a statement inadmissible as a matter
of law. He was also of the 'opinion that the inadmissibility of the first
statement rendered the second inadmissible, as in his view, the appellant ought
to have been pointedly warned that notwithstanding he had made the first
statement he need not say anything. The question is therefore raised as to
whether or not, assuming the warning with respect to the first statement to
have been insufficient, either statement was thereby rendered inadmissible as a
matter of law, even although the learned trial judge, upon a consideration of
all the relevant circumstances, was of opinion that in each instance the
appellant had spoken voluntarily.
The governing principle is stated by Viscount Sumner in Ibrahim
v. The King as follows:
It has long been established as a postive 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 or prejudice
or hope of advantage exercised or held out by a person in authority. The
principle is as old as Lord Hale. The burden of proof in the matter has been
decided by high authority in recent times in Regina v. Thompson
…
At page 613 Viscount Sumner refers to the decision of the
Court of Criminal Appeal in England in Rex v. Knight and Thayre ,
and quotes from the judgment of Channell J. at page 713, where the latter said
with respect to answers to questions put by a constable after arresting:
When he has taken anyone into custody … he ought not to
question the prisoner … I am not aware of any distinct rule of evidence, that
if such improper questions are asked the answers to them are inadmissible, but
there is clear authority for saying that the judge at the trial may in his
discretion refuse to allow the answers to be given in evidence …
On the same page Viscount Sumner refers to an excerpt from
the judgment of Channell J. in Rex v. Boot and Jones ,
where the latter said at p. 179:
the moment you have decided to charge him and praotically
got him into custody, then, inasmuch as a judge even cannot ask a question, or
a magistrate, it is ridiculous to suppose that a policeman can. But there is
[Page 272]
no actual authority yet that if a policeman does ask a
question it is inadmissible; what happens is that the judge says it is not
advisable to press the matter.
Viscount Sumner concludes:
And of this Darling J., delivering the judgment of the Court
of Criminal Appeal observes the "principle was put very clearly by
Channell J."
Lord Sumner at p. 614 refers to this view of the law as
"a probable opinion of the present law, if it is not actually the better
opinion", although their Lordships say that the final declaration as to
the law on the subject should be left to the "revising functions of a
general Court of Criminal Appeal."
In Rex v. Colpus , a decision of the
Court of Criminal Appeal in England, in delivering the judgment of that court
Viscount Reading C.J., said at 579:
We do not propose to say more in this case than that the
principle laid down in Reg. v. Thompson and
approved in Ibrahim v. Rex is the principle which
is to be applied in the present case.
The case before that court involved statements made by the
appellants before a military court of inquiry. These were admitted although
there had been no warning, the court being of opinion that on all the evidence
they were voluntary statements.
In the following year in The King v. Voisin ,
again a decision of the Court of Criminal Appeal, the appellant, in response to
a request by the police, went to a police station where he made a statement
which was taken down in writing. He was then asked whether he had any objection
to writing down certain words, and upon his stating he had no objection, he
wrote them. He was not cautioned at any time. It was contended at the trial
that the words which he had written were inadmissible on the ground that the
writing was obtained by the police without having first cautioned the appellant
and while he was in custody. The writing was, however, admitted. The court
followed the judgment of Lord Sumner in Ibrahim's case . At
page 558 A. T. Lawrence J. said:
The question as to whether a person has been duly cautioned
before the statement was made is one of the circumstances that must be taken
[Page 273]
into consideration, but this is a circumstance upon which
the judge should exercise his discretion. It cannot be said as a matter of law
that the absence of a caution makes the statement inadmissible.
I do not think it possible to regard this case as other than
a case of a statement obtained from a person in custody as the result of
questioning by the police and it was so dealt with by the court. There is, in
my opinion, no room for distinction whether there be one or more than one
question asked.
In 1922 the question came before this court in Prosko v.
The King . In that case the appellant was in the
custody of two American detectives for the purpose of being brought before the
American Immigration authorities. A warrant for his arrest on a charge of
murder had been issued in this country.
The appellant was told by the immigration officers that they
were going to take up his case with the United States Immigration officials and
have him deported to Canada, whereupon he said, "I am as good as dead if
you send me there." Upon the officers asking "why", he gave the
statement which was in question. No warning had been given to him. The Chief
Justice, Idington, Anglin and Brodeur, JJ., followed and applied the principle
laid down in Ibrahim v. The King , The
King v. Colpus and The King v. Voisin .
In this case but a single question was asked. The case was treated by all the
members of the court as one of answers made to questions by persons in
authority without a warning having been given. It was held that the evidence
was admissible. The court considered that the basic question to be answered was
as to whether or not the statement had been voluntarily made. At page 237
Anglin J. said:
The two detectives were persons in authority; the accused
was in my opinion in the same plight as if in custody in extradition
proceedings under a warrant charging him with murder. No warning whatever' was
given to him. While these facts do not in themselves suffice to exclude the
admissions, as Duff J. appears to have held in The King v. Kay ',
they are undoubtedly circumstances which require that the evidence tendered to
establish their voluntary character should be closely scrutinized.
In Gach v. The King , the
appellant was charged with having unlawfully received certain ration' books,
knowing them to have been stolen. Certain police officers
[Page 274]
called upon the appellant and told him that one Nagurski had
stated that he had sold ration books to the appellant, that he could be
prosecuted, and that in any event it would be better for him to hand them over.
At the end of the conversation they told him that he was to accompany them to
the police barracks to talk to an inspector. The inspector there told the
appellant that he would, in all probability, be charged. He was then asked
certain questions and made certain answers. No warning was given. The admissibility
of these answers was challenged.
Kerwin J., who delivered the judgment of himself and Duff
C.J., referred to Ibrahim v. The King and Sankey
v. The King , and held the evidence inadmissible as
having been made after appellant had been told by the police that it would be
better if he made a statement.
The judgment of Taschereau J., with whom Rinfret J., as he
then was, and Hudson J. agreed, reached the same result. The judgment of the
majority is based upon the judgments in The Queen v. Thompson , Rex v. Knight and Thayre ,
Lewis v. Harris , and Rex v. Crowe and
Myerscough .
As already mentioned, the first two of the above four
authorities are referred to by Viscount Sumner in Ibrahim's
case. In The Queen v. Thompson there is no suggestion
that any warning had been given. The statement, however, was not rejected on
that ground but on the ground that the Grown had not satisfied the burden
resting on it of establishing that the statement had been made voluntarily.
That is all that the case is cited for by Taschereau J. Had the mere lack of
warning been regarded as rendering the statement inadmissible, the strong court
which decided The Queen v. Thompson , would
undoubtedly have said so. They did not.
Again in Rex v. Knight and Thayre ,
the statement which the Crown tendered had in fact been preceded by a warning. It
is not therefore in itself a decision as to
[Page 275]
admissibility or inadmissibilty where no warning is given.
Taschereau J. quotes from the reasons for judgment of Channell J. at p. 713,
including:
When he has taken anyone into custody, and also before doing
so when he has already decided to make the charge, he ought not to question the
prisoner. A magistrate or judge cannot do it, and a police officer certainly
has no more right to do so.
Channell J. immediately adds, however, what is included in
that which is quoted by Lord Sumner in Ibrahim's case:
I am not aware of any distinct rule of evidence, that if
such improper questions are asked the answers to them are inadmissible, but
there is clear authority for saying that the judge at the trial may in his
discretion refuse to allow the answer to be given in evidence and in my opinion
that is the right course to pursue.
That is not to say that the rule is that all such answers
are inadmissible, but that as a matter of discretion the judge may refuse to
admit. That this is the correct view of what the learned judge says is shown by
that part of his direction in Rex v. Booth and Jones ,
quoted by Lord Sumner in Ibrahim's case at p. 613:
… the (moment you have decided to charge him and practically
got him into custody, then, inasmuch as a judge even cannot ask a question, or
a magistrate, it is ridiculous to suppose that a policeman can. But there is no
actual authority yet that if a policeman does ask a question, it is
inadmissible—what happens is that the judge says it is not admissible to press
the matter.
In Rex v. Booth and Jones , as in
Rex v. Knight and Thayre , the statement tendered
had in fact been preceded by a warning.
In Lewis v. Harris , the
headnote to which is quoted by Taschereau J., a constable had observed a child
coming out of a store on a Sunday, and finding out from her that she had made a
purchase of candy, he went back into the store with her and asked the
proprietor certain questions, the admissibility of which was in question on the
appeal. In that case the fact was that the appellant was not in custody and the
constable had not made up his mind to lay a charge. The case is therefore not
in pari materia with the case at bar. In the course of his judgment
Darling J. said at p. 71:
A constable ought not, if he has made up his mind that
whatever the answer may be he will arrest the person to whom he is speaking, to
[Page 276]
ask that person an incriminating question. The law does not
say that the answer must be excluded and that it is not evidence, but it has
been frequently held that if that rule is infringed then the judge in his
discretion may reject the evidence, and it is tolerably certain that if there
is any sign that the evidence was unfairly obtained he would reject it. The
true rule is that nothing must be done to hold out an inducement to a person,
and no threat must be used to induce a person, to make an incriminating
statement …
The last case to which Taschereau J. refers is Rex v.
Crowe and Myerscough , a decision of Sankey J., as he then
was. The question involved was as to the admissibility of a statement in answer
to questions put by the police made by the appellant Myerscough before arrest
and before the police had determined to arrest her. After she had made the
answers orally, the appellant signed a written statement in which she said that
"This statement has been read over to me. It is made quite voluntarily and
is true". Sankey J. admitted the statement on the grounds, (1) that it had
been made when she was not under arrest; (2) before it had been decided to
arrest her; and (3) that she herself had said it had been made voluntarily. In
the course of his judgment Sankey J. said what is quoted by Taschereau J., viz:
If a police officer has determined to effect an arrest, or
if the person is in custody, then be should ask no questions which will in any
way tend to prove the guilt of such person from this own mouth.
It is to be noted that Sankey J. does not say that if this
rule is disobeyed and a statement is made, it is inadmissible as a matter of
law.
It is clear therefore that in none of the cases referred to
in the judgment of the majority in Gach's case,
is it laid down that a statement made by a person in custody in answer to
questions but by a person in authority, is, as a matter of law inadmissible. On
the contrary, the question is in all cases as to whether the Crown, as stated
in Rev. Thompson, supra, has satisfied the onus that the statement has
in fact been made voluntarily. While there may be expressions in the judgment
of the majority in Gach's case, taken apart from the context, which
might appear to extend the decisions, as pointed out by Atkinson J. in Lorentzen
v. Lydden & Co. :
[Page 277]
Again and again judges have been told by the Court of Appeal
and the House of Lords that words used in previous oases must be interpreted
with reference to the facts before the court and the issues with which it was
dealing.
In Gach's case it is plain from the judgment of the majority
that the statement sought to be used in evidence had been made by the appellant
after the officers had said to him "that it would be better for him to
hand them over." In these circumstances all the members of the court were
of opinion that it could not be said that the statement was voluntary.
I do not consider therefore that it can be said that
anything said in Gach's case can be taken as inconsistent with
the previous decision in Prosko's case by which the court
was bound, even though it could be said that the court was not also bound to
follow what was termed by Lord Sumner in Ibrahim's case
as a "probable opinion of the present law, if it is not actually the
better opinion."
In the case at bar the second statement, which included the
substance of the first, was held by the trial judge to have been voluntarily
made. I think therefore that the appeal must be dismissed.
Estey, J.
(dissenting):—The appellant's conviction for the murder of Joseph Laplante was
affirmed by a majority in the Court of King's Bench (Appeal Side) in Quebec .
Mr. Justice Bissonnette dissented on the bases as set out in the formal
judgment:
1. L'illégalité dans l'obtention et la
production de la première confession;
2. L'illégalité dans l'obtention et la
production de la deuxième confession, particulièrement en raison de
l'illégalité de la première;
3. L'inadmissibilité de la preuve des aveux ou
confessions.
Mr. Justice Bissonnette was of the opinion that the first
statement or confession was not exculpatory as the learned trial judge has
construed it, and because no warning had been given it was in his opinion
improperly admitted. He summarized his conclusions relative to the second
statement under three headings, as follows:
Le premier, c'est que j'estime que la mise en
garde sur la deuxième confession, même si elle a été faite, ne constituait pas,
sous les circonstances de cette cause, un avertissement suffisant, car ce jeune
homme ne
[Page 278]
pouvait alors ignorer qu'il avait déjà fait
certains aveux et que tout ce qu'on lui demandait ce soir-là, c'était de
circonstancier ce qu'il avait déjà dit. II s'attache donc une présomption très
forte que l'appelant pouvait se croire tenu, obligé, contraint de parler.
Le deuxième motif c'est que les deux
confessions sont si intimement liées, que l'exclusion de l'une entraîne celle
de l'autre, car le jury ne pouvait certes pas se détacher complètement de
l'impression que la lecture de la première pouvait avoir dans son esprit, dans
la considération du mobile du crime.
Comme troisième motif, je dirai, à la suite de
M. le juge Anglin dans l'affaire Sankey, que si l'interrogatoire que l'on fait
subir à un prévenu n'est pas, per se, illégal, il faut, d'autre part, bien
s'assurer que la Couronne s'est acquittée de son 'obligation de prouver que les
aveux sont libres, nullement entachés d'une contrainte physique ou morale
quelconque. Et cette preuve, (ajoutait le juge en chef Anglin, ne peut
qu'exceptionnellement ressortir du seul fait du serment des officiers de police
que l'inculpé a parlé librement.
The murder occurred Thursday, May 29, 1947, at Lac
Castagnier about twenty-four miles from Amos in the Province of Quebec.
Detective Oggier arrived at Amos on Saturday, May 31st. He
acquainted himself with the information already gathered by the Provincial
Police and on Sunday he and Constable Lefebvre proceeded to Lac Castagnier. At
Mrs. Laplante's they found a number of people, including Boudreau. Detective
Oggier desired to question Boudreau "sur ses allées et venues," and
"parce que j'avais des soupçons," and requested him to accompany them
to Amos. At Amos the coroner was communicated with and Boudreau detained at the
jail. On Monday morning, June 2nd, Detective-Sergeant Massue had Boudreau
brought into his office and there informed him 'that he was held as a material
witness. Boudreau said nothing when so informed and was taken back into
custody. In fact no questions were asked and no statement made by Boudreau
until Tuesday night, the reason for which is explained by Detective Oggier in
the course of his evidence:
Q. Vous avez pas jugé à propos de lui parler
de ses allées et venues?
R. Non, mon enquête était pas complète.
Q. Pourquoi pas commencer à le questionner?
R. J'avais pas assez d'informations sur la
cause et j'ai cru bon de continuer mon enquête.
Detective Oggier continued his inquiries at Lac Castagnier
and returned to Amos on Tuesday, June 3rd. That evening at about 8.30 Boudreau
was brought into the office of Detective-Sergeant Massue where Massue and
Oggier questioned him. No warning was given and the
[Page 279]
conversation lasted about an hour. The statements made by
Boudreau were in reply to questions, for the most part by Detective-Sergeant
Massue. Boudreau there admitted ownership of a 12 gun as well as a revolver and
told the police that he had left his home about midday on Tuesday, May 27th, to
go into the woods to check over his traps, and returned on Saturday, when he
heard of the murder of Laplante. He also stated that he had visited and worked
at Laplante's place. When questioned he admitted intimate relations with Mrs.
Laplante but when pressed with regard thereto "il paraissait un peu
gêné."
The officers acknowledged that his information relative to
his relations with Mrs. Laplante, apart from some details, but corroborated
that which they had already received. In fact as regards the entire interview
Oggier deposed that they had received no new information of consequence but
their suspicions were strengthened. As yet, however, they concluded that they
did not have sufficient to justify the laying of an information and complaint.
Boudreau, after making these verbal statements to the
officers, consented to make a statement in writing. Bacon, the secretary of the
provincial police, was called to take down the statement and when completed
Tessier, Deputy Prothonotary, was called. He ascertained that Boudreau could
read, handed to him a copy of the statement which he followed as Tessier read
it aloud. Boudreau thereafter signed it and pledged his oath thereto before
Tessier.
Detective Oggier returned on Wednesday and Thursday to Lac
Castagnier where he continued his investigation and returned again to Amos
Thursday evening about 8.00 or 8.30. He and Detective-Sergeant Massue had
further conversation and decided to again question Boudreau. Oggier's
own explanation is as follows:
R. On a décidé tous les deux ensemble. J'ai
rencontré le sergent Massue à son bureau et je lui ai fait part de mon enquête
additionnelle au Lac Castagnier et on a décidé de le faire venir, de le mettre
sur ses gardes et de voir s'il était décidé de nous donner d'autres
informations.
D. Vous croyiez avoir une preuve contre lui et
vous vouliez avoir une déclaration de lui?
R. Lui, parce que je voyais que sa premiére
déclaration était pas complète.
Boudreau was brought into Massue's office at about 11.00
o'clock that night and there remained until about 1.00 o'clock in the morning. On
this occasion prior to any
[Page 280]
questions being asked Massue warned Boudreau. As to why the
warning was given Massue deposed: "Parce que nous étions plus convaincus
que le mardi soir." Immediately he had given the warning Massue asked the
appellant "s'il avait des informations nouvelles à nous donner." Oggier deposed: "Il s'est assis et il a pensé et il a commencé à
conter la même histoire que la fois d'avant." He also deposed: "Le
sergent Massue a posé plusieurs questions concernant les armes à feu et madame
Laplante." The appellant's gun used in committing the murder, his
revolver and some cartridges were shown to him during this interview. The sack
and the box found near the scene of the murder may or may not have been shown
to him. It was at this interview that Boudreau stated:
"Messieurs, vous le savez pas combien que j'aime cette femme-là." At
some time during the interview the appellant became and remained very nervous.
After about half an hour Massue left his office to obtain a glass of water. As to what happened in his absence Oggier deposed:
Je lui ai dit que j'avais vu son pére et sa
mère et là il a dit: "J'aime autant vous le dire, c'est moi qui l'a
tué." J'ai lâché un cri et j'ai dit: "Viens t'en de suite."
In reply to their further questions Boudreau gave them the
details of the murder and consented to give a written statement. Then, as on
Tuesday evening, Bacon was called, later Tessier, before whom the statement was
signed and appellant pledged his oath thereto.
The learned trial judge admitted the first statement in
evidence because, in his opinion, it did not implicate the appellant but was
rather exculpatory in character. It did contain an alibi and an admission that
appellant owned a · 12 gun. The greater part, however, described his relations
with Mrs. Laplante, from which the jury might well find the motive that
prompted the murder. In this aspect the statement implicated the appellant in
the commission of the offence.
If you have acts seriously tending, when reasonably viewed,
to establish motive for the commission of a crime, then there can be no doubt
that such evidence is admissible, not merely to prove intent, but to prove the
fact as well. Ped Duff, C.J. in The King v. Barbour .
See also Lord Atkinson in Rex v. Ball .
[Page 281]
Then when both statements are read together the alibi is but
a contradiction of his subsequent confession and to that extent is evidence
that would be prejudicial to the appellant should any question of credibility
arise in the mind of the jury. The learned trial judge, with respect,
misdirected himself as to the significance of this statement as evidence
against the appellant.
On Thursday evening Massue and Oggier again
had the appellant, who was still under arrest, brought into the former's
office, "… de voir s'il était décidé de nous donner d'autres informations
… parce que je voyais que sa première déclaration était pas complète."
The important issue the learned trial judge had to determine
was whether the confession "J'aime autant vous le dire, c'est moi qui l'a
tué," made to Oggier was free and voluntary within the meaning of the
authorities. These words are not in the written statement that followed. It is,
however, what led up to the making of this confession that is vital in
determining the issue, was it freely and voluntarily made. If in determining
whether a confession is freely and voluntarily made the trial judge does not
misdirect himself in law his finding should be accepted by an Appellate Court.
It appears that in this case the learned trial judge, apart from his
misdirection with regard to the first statement already dealt with, has
misdirected himself in not considering the warning as given in relation to all
the circumstances leading up to the making of this confession, including those
before as well as those after the warning was given, and particularly as to
whether, under all the circumstances, the effect of the warning as given had
not been destroyed. It is the sufficiency of the warning under all the
circumstances, the association of or connection between the two statements and
the effect of the questions asked that are raised in the dissenting opinion of
Mr. Justice Bissonnette.
The oft-quoted statement of the law by Lord Sumner in Ibraham
v. Rex , reads as follows:
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. The
principle is as old as Lord Hale.
[Page 282]
In the Ibrahim case the accused was in custody when
Major Barrett came up to him and without any thought of a prosecution asked,
"Why have you done such a senseless act?" to which the accused
replied, "some three or four days he has been abusing me; without a doubt
I killed him." Nothing more was said and no warning or caution had been
given. This confession was held to have been freely and voluntarily made and
therefore 'admissible. In this connection it is important to observe the
remarks of Lord Sumner relative to the question as asked:
In truth, except that Major Barrett's words were formally a
question they appear to have been indistinguishable from an exclamation of
dismay on the part of a humane officer, alike concerned for the position of the
accused, the fate of the deceased, and the credit of the regiment and the
service.
In Rex v. Voisin , no
warning was given and yet the evidence was admissible. There the murdered party
had not been identified. The police had a parcel containing a portion of the
remains on which appeared the words "Bladie Belgiam". Several
persons, including the accused, were held for questioning. At the request of
the police the accused wrote the words "Bladie Belgiam" in
handwriting that resembled and spelling identical with that on the parcel. Lawrence,
J. at p. 94 stated:
In this case the appellant wrote these words quite
voluntarily. The mere facts that they were police officers, or that the words
were written at their request, or that he was being detained at Bow Street do
not make the writing inadmissible in evidence … if the writing had turned out
other than it did and other circumstances had not subsequently happened it is
certain that he, like others who were similarly detained, would have been
discharged.
In Prosko v. The King , the
accused was held in custody by the United States immigration officials who
explained to the accused that they were taking proceedings for his deportation
to Canada. The accused then said, "I am as good as dead if you send me
over there." A constable asked why and the accused in the course of his
explanation included the confession tendered and admitted at his trial. No
warning was given and yet the statement was held to be freely and voluntarily
made and admissible in evidence.
These cases are illustrative of the principle that the
statement must in every case be voluntary. The mere fact
[Page 283]
that the confession was made by one in custody in response
to a question by one in authority without a warning given does not make it
inadmissible.
Then there are the cases such as Rex v. Knight
& Thayre , where a detective after warning the
accused questioned him for nearly three hours. Throughout the first two hours
the accused denied any knowledge of the fraud but during the last hour made the
confession tendered as evidence. Channell, J. stated, at p. 714:
The questioning was continued for a very long period, the
man's denials were not accepted, and the impression conveyed by Shinner to the
prisoner's mind may well have been this: "You will have to tell me that
you did this thing, because I shall not let you go till you do so." This
certainly cannot be said to be making a statement voluntarily. It may well be
that an admission made immediately after a caution had been given by the person
in authority would be admissible, but it does not follow that a suspended
person can be cross-examined until the person putting the questions is
satisfied.
These cases emphasize that whether the warning has or has
not been given it must be determined under all the circumstances of each case
if in fact the statement has been freely and voluntarily made.
There has developed a rule of practice that when the police
or others1 in authority have either arrested the accused or made up
their minds that he is the party whom they will prosecute then before being
questioned he should be cautioned or warned in a manner that will explain his
position much as a justice of the peace or magistrate does to an accused at the
conclusion of the Crown's evidence at a preliminary inquiry under sec. 684(2).
In Gach v. The King , it was the view of the majority of
this Court that the warning under the circumstances of that case should have
been given. The general language used has been construed to effect a change in
the law. Rex v. Scory . The general language construed as
effecting a change in the law was unnecessary to that decision. Moreover, that
case does not purport to overrule Prosko v. The King, supra, nor
any of the cases in which a statement has been received as voluntary although
no warning had been given, nor does it purport to hold that a statement should
be held to be voluntary where the warning has been given. In each case the
confession must be affirmatively proven
[Page 284]
by the Crown to have been freely and voluntarily made before
it can be received in evidence. The fact a warning has been given as well as
its content is an important circumstance to be considered. The Queen v. Thompson
.
The circumstances from the outset pointed to Boudreau and,
as the police stated, caused them to be suspicious that he had committed the
murder. He was taken into custody on Sunday but not questioned until Tuesday
evening, when in reply to their questions he explained that at the time of the
murder he was in the woods caring for his traps and did not hear of Laplante's
death until he returned Saturday morning. He admitted ownership of a .12
gun and his relations with Mrs. Laplante. The following Thursday evening the
appellant was again brought into Massue's office to see if he had decided to
give them further information and because, as Oggier stated, he did not think
his first statement was complete.
The events of Thursday evening in these circumstances cannot
be segregated from those of Tuesday evening. The questions asked on Tuesday
evening, his alibi, his admission to ownership of a .12 gun
and his relations with Mrs. Laplante, the reasons why he was again questioned
on Thursday evening, as well as the questions asked, and all the incidents of
that evening are important factors. At the outset Thursday evening appellant
was warned and immediately asked by Massue the question already stated,
"s'il avait des informations nouvelles à nous donner," which directed
the appellant's mind at once to what he had said Tuesday evening. Then what is
of the greatest importance in this issue—apart from this first question, the
showing of the equipment used in the commission of the murder to the appellant,
the reference to his parents, the fact that other questions relative to the gun
and his relations with Mrs. Laplante were asked, and the nervous condition of
the appellant—is the evidence does not disclose what further questions were
asked or what transpired in that office immediately prior to the appellant's
confession. The events prior to and of that evening, including the actual words
of the confession, "J'aime autant vous le dire, c'est moi qui l'a
tué," were important factors in the circumstances.
[Page 285]
The passage already quoted by Lord Sumner in the Ibrahim case
is an indication of the importance of the nature and character of the actual
questions asked. The three authorities, Ibrahim, Voisin and Prosko,
supra, as well as Sankey v. The King , all
emphasize the importance of considering the details leading up to a confession.
I do not subscribe to the view pressed by counsel for the
appellant that the warning necessarily should have included such words as would
have informed the appellant that, notwithstanding that he had already made one
statement, no matter what it contained he need not now make another or any
statement. Had such words been included they, of course, would have been a
factor. It is not, however, desirable that separate and distinct requirements
should be specified designed to cover specific situations; rather the issue to
be determined should remain in all cases, was the confession freely and
voluntarily made. The existence of a previous statement and the circumstances
under which it had been made may well be important in determining the issue in
a particular case. It was important here because the same officers were present
on each occasion. Immediately the warning was given the question asked directed
the appellant's attention to his previous statement and appellant himself began
by repeating the same history he had related on Tuesday evening. It was from
this beginning on Thursday evening that events led up to the confession. A
warning under such circumstances, when already he had given information in reply
to questions and when immediately after the warning he is further questioned by
the same parties in a manner that directed his mind to the information already
given, is quite different in its effect from a warning given before any
questions are asked.
The events of the two evenings upon all the facts of this
case were intimately associated by the officers themselves as well as by the
appellant and cannot be separated in considering the admissibility of the
statements made on these respective occasions. The courts have under such
circumstances always insisted that such confessions be
[Page 286]
received with care and caution. The statement of Chief
Justice Anglin in Sankey v. The King, supra, at p. 441, is appropriate:
It should always be borne in mind that while, on the one
hand, questioning of the accused by the police, if properly conducted and after
warning duly given, will not per se render his statement inadmissible,
on the other hand, the burden of establishing to the satisfaction of the court
that anything in the nature of a confession or statement procured from, the
accused while under arrest was voluntary always rests with the Grown. The
King v. Bellos ; Prosko v. The King .
That burden can rarely, if ever, be discharged merely by proof that the giving
of the statement was preceded by the customary warning and an expression of
opinion on oath by the police officer, who obtained it, that it was made freely
and voluntarily.
The learned trial judge's misdirection relative to the first
statement caused him to eliminate and not to consider what transpired prior to
the warning on Thursday evening. That which took place after the warning should
have been placed before the learned trial judge in greater detail. As Chief
Justice Anglin stated in Sankey v. The King, supra, at p. 441:
We think (that the police officer who obtained that
statement should have fully disclosed all that took place on each of the
occasions when he "interviewed" the prisoner …
The learned trial judge in proceeding to find 'that the
Crown had discharged the onus of proof and established that the statement was
freely and voluntarily made without these further details, in particular the
questions asked, the incidents surrounding the showing of the equipment used in
the commission of the murder, as well as all the other incidents of that half
hour, constituted a failure to direct himself as to that caution and care with
which evidence in such cases should be scrutinized.
The appeal should be allowed and a new trial directed.
Appeal dismissed.
Solicitors for the appellant: Gendron and
Gauthier.
Solicitor for the respondent: Noël Dorion.
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