Piché v. R., [1971] SCR 23

Supreme Court of Canada

Piché v. R., [1971] S.C.R. 23

Date: 1970-06-26

Ruth Thelma Piché Appellant;

and

Her Majesty The Queen Respondent.

1970: January 30; 1970: February 2; 1970: June 26.

Present: Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Evidence—Confession—Admissibility—No statement, inculpatory or exculpatory, admissible without voir dire.

The appellant was tried and acquitted on a charge of non capital murder. The trial judge rejected a statement made by the appellant to the police when

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she was questioned shortly after the discovery of the victim’s body. After a lengthy voir dire, he held that the statement was inculpatory and had not been made voluntarily. In her testimony at the trial, the appellant told a totally different story than the one contained in the statement which was not received in evidence. The Court of Appeal directed a new trial, being of the opinion that the statement was exculpatory and that it was not subject to the rules relating to confessions. The accused appealed to this Court.

Held (Fauteux and Judson JJ. dissenting): The appeal should be allowed.

Per Cartwright C.J. and Abbott, Martland, Ritchie, Hall, Spence and Pigeon JJ.: There is no distinction to be drawn between inculpatory and exculpatory statements as such in so far as their admissibility in evidence when tendered by the Crown is concerned. 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. If the statement was given voluntarily, it will be admitted; if not given voluntarily and the trial judge so rules, it will not be admitted.

Per Cartwright C.J. and Spence J.: The supposed rule that an involuntary statement relative to the offence with which an accused is charged is admissible against him if on its face it is exculpatory is an anomaly which should be rejected from our law. The right of an accused to remain silent is equally violated whether, when he is coerced into making a statement against his will, what he says is on its face inculpatory or exculpatory. It is difficult to see how the prosecution can consistently urge that a statement forced from an accused is in reality exculpatory while at the same time asserting that its exclusion has resulted in the acquittal of the accused and that its admission might well have resulted in conviction.

Per Fauteux and Judson JJ., dissenting: The statement in question was exculpatory. It denied guilt. It was an assertion by the accused that she had not shot the man. A statement denying guilt cannot be a confession and is not therefore subject to the rules relating to confessions. If a person chooses to give the police an innocent explanation of his conduct and then at the trial goes into the witness box and gives another innocent explanation incon-

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sistent with the first, it is entirely appropriate for Crown counsel to cross-examine on this discrepancy and the reasons for it. There should be no recognition of any right on the part of an accused to tell the police one innocent story and then tell another innocent story in the witness box without the jury knowing anything about the conflict between the two.

APPEAL from a judgment of the Court of Appeal for Manitoba[1], quashing a verdict of acquittal and directing a new trial. Appeal allowed, Fauteux and Judson JJ. dissenting.

S.M. Froomkin, for the appellant.

H.E. Wolch, for the respondent.

The judgment of Cartwright C.J. and Spence J. was delivered by

CARTWRIGHT C.J.—The relevant facts and the course of the proceedings in the courts below are set out in the reasons of my brothers Judson and Hall which I have had the advantage of reading.

I agree with the conclusion of my brother Hall that we are free to say and should say that no statement made by an accused to persons in authority should be admitted in evidence against him unless it is shewn by the prosecution to have been a voluntary statement in the sense stated by Lord Sumner in the passage from his reasons in Ibrahim v. Rex[2], quoted by my brother Hall, and that this rule applies whether the statement sought to be admitted is inculpatory or exculpatory.

I agree with the reasons of my brother Hall but wish to add a few words as to why, in principle, an involuntary exculpatory statement should be inadmissible.

The main reason assigned for the rule that an involuntary confession is to be excluded is the danger that it may be untrue but, as has been

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recently reasserted by this Court in DeClerq v. The Queen[3], the answer to the question whether such a confession should be admitted depends on whether or not it was voluntary not on whether or not it was true.

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.

If, on the other hand, one regards the rule against the admission of an involuntary statement as being based in part on the maxim, nemo tenetur seipsum accusare, the right of an accused to remain silent is equally violated whether, when he is coerced into making a statement against his will, what he says is on its face inculpatory or exculpatory. I find it difficult to see how the prosecution can consistently urge that a statement forced from an accused is in reality exculpatory while at the same time asserting that its exclusion has resulted in the acquittal of the accused and that its admission might well have resulted in conviction.

In Best v. Samuel Fox & Co. Ltd.[4], Lord Porter said, at page 727:

The common law is a historical development rather than a logical whole, and the fact that a particular doctrine does not logically accord with another or others is no ground for its rejection.

In the same case, at page 733, Lord Goddard, who agreed in the result, said:

…but English law is free neither of some anomalies nor of everything illogical, but there is no reason for extending them.

In my view, the supposed rule that an involuntary statement relative to the offence with which an

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accused is charged is admissible against him if on its face it is exculpatory is an anomaly which should be rejected from our law.

While somewhat different considerations enter into some of the decisions of the courts of the United States, in my opinion, the law of Canada is correctly stated in the following passage from the reasons of Traynor J., as he then was, in People of the State of California v. Atchley[5], quoted by Freedman J.A. in the case at bar:

Accordingly any statement by an accused relative to the offence charged is inadmissible against him if made involuntarily.

I would dispose of the appeal as proposed by my brother Hall.

The judgment of Fauteux and Judson JJ. was delivered by

JUDSON J. (dissenting)—The appellant, Ruth Thelma Piche, was charged with the non-capital murder of Leslie Pascoe in the early morning of November 1, 1968. She had been living with Pascoe since 1964. The two had had an evening of drinking on October 31, 1968, along with others. They returned home about midnight. There was evidence of quarrelling during the evening and also on their return home, and of more and heavier drinking, particularly on the part of Pascoe. At 2.30 a.m. on November 1, 1968, the appellant called a taxi, which took her and her infant child to her mother’s apartment. At 10.30 a.m. on November 1, Pascoe’s body was found in his apartment. He had been shot by a gun which was found on a gunrack in the bathroom. The police interviewed the appellant on the morning of November 2. She was tried and acquitted on the charge of non-capital murder in February of 1969. In April 1969, the full Court of Appeal[6], with one dissent, set aside the acquittal and ordered a new trial on the ground that there was error in law in the ruling of the trial judge that a certain statement was inculpatory and had not been proved to be free and voluntary within the rules prescribed

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in Boudreau v. The King[7]. The majority in the Court of Appeal was clearly of the opinion that the statement was exculpatory and that it was not subject to these rules. On appeal to this Court, the same point is in issue.

The statement in question was given to the police by the appellant on November 2, 1968. It describes the events of the evening—the drinking, the quarrelling, the return home and more drinking and quarrelling after the return home. Then she says that she decided to go to her mother’s apartment with the child. She puts the time of the call for the taxi at 1.50 a.m. She says that when she left the apartment at 1.50 a.m., Pascoe was asleep on the chesterfield.

I agree with the majority opinion of the Court of Appeal that this statement is exculpatory and that no admission of guilt or of any essential element in the charge of non-capital murder can be found in it, and that the ruling of the trial judge was erroneous when he made it subject to the rules relating to confessions. His reason for finding that the statement was inculpatory was that it contained statements which went to the questions of both opportunity and motive.

At the trial, the accused gave evidence that she took the rifle from the rack with the intention of committing suicide, that it accidentally discharged, with the bullet striking the deceased, and that she then left the apartment.

I cannot accept the trial judge’s reasoning in this case that the statement was inculpatory because it went to the question of both opportunity and motive. This particular statement denied guilt. It was an assertion by the accused that she had not shot the man. A statement denying guilt cannot be a confession. As Wigmore said: “This ought to be plain enough if legal terms are to have any meaning and if the spirit of the general principle is to be obeyed.”

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The problem we have here has been repeatedly before the courts since 1913, beginning with Rex v. Hurd[8], in the Alberta Court of Appeal. The cases are all reviewed by Monnin J.A., in the present case and by MacKay J.A. in Regina v. Black and Mackie[9].

The Courts of Appeal in Alberta, British Columbia, Manitoba and Ontario have all held that a statement denying guilt is not subject to the confession rule. The only possible exception to this line of authority is to be found in the judgment of the Saskatchewan Court of Appeal in Rex v. Scory[10]. The British Columbia Court of Appeal refused to follow this decision. In so doing I think they were right. Rex v. Scory is out of line with all other authority in this country. In that case the charge was “rape” and the defence at trial was “consent”. The accused was asked on cross-examination whether when questioned by the police he had not given another innocent explanation, namely, that he was not there at all. This line of cross-examination to me is clearly permissible but it was stopped. It may well be that the foundation for the decision in Scory was an adherence to what was thought to be the principle in Gach v. The King[11] to the effect that incriminating statements made by a person under detention as a result of questions put to him by a person in authority were not admissible in evidence unless a proper warning had been given him. It was stated in Boudreau v. The King, supra, that this dictum in Gach was obiter. Boudreau expresses the true rule in this country, that the test for the admissibility of a confession is voluntariness.

Two statements were involved in Boudreau. The first was the result of questioning before a

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warning had been given. The first statement was essentially an alibi. The second statement after the warning had been given admitted the murder. With one exception all the members of the court held that the statements were voluntary. As to the first statement, the majority held that it was incriminating and not exculpatory. Rinfret C.J. and Taschereau J. dissented on this point. They would have held that in any event the confession rule did not apply.

The dissenting reasons in the Manitoba Court of Appeal in the present case refer to recent developments in the United States which indicate that there is no difference between a confession and an exculpatory statement. The matter seems to be summed up on this point in an article entitled “Development in the Law of Confessions”, 79 Harvard Law Review (1965‑66) pp. 1032-33, as follows:

Since Bram v. United States, 168 U.S. 532 (1897), the federal courts have generally applied the rules for confessions to admissions and exculpatory statements, although there have been occasional dicta to the contrary. In Bram, the defendant had been told that another suspect had seen him commit the crime, to which he replied “he could not see me from there.” Although the statement was intended as a denial of the accusation, the prosecution offered it on the theory that the accused had tacitly admitted that the suspect might have seen the crime from some other place. The Supreme Court, in requiring the application of voluntariness rules, seemed unconcerned by the exculpatory nature of the statement.

There is a certain trend in recent years to adopt this liberal viewpoint. In People v. Atchley, the Supreme Court of California ruled that “any statement by an accused relative to the offense charged is inadmissible against him if made involuntarily.” In doing so, the court that had once been so quick to distinguish between confessions and admissions in the application of the voluntariness rules pointed out that the rationale for exclusion was equally persuasive for both kinds of statement. In Oregon, a 1957 amendment to the Criminal Code extended the rules for confessions to cover admissions. And Rule 63(6) of the Uniform Rules of Evidence, which is in effect in Kansas, requires a showing of voluntariness for any statement “relative to the

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offence charged.” But in spite of this trend, probably most states still accept Wigmore’s view that admissions are not subject to the rules of voluntariness.

The test which has led to this development seems to be that a confession must be the result of a free and reasoned choice, and that no distinctions among the categories of out-of-court statements can constitutionally be made, and that the test for admissibility must be the same for confessions, admissions and exculpatory statements.

Turning now to the position in England, the starting point must be Ibrahim v. The King[12]. Ibrahim was concerned with a confession. The statement was brief. It was this: In answer to the question why he had done such a senseless act, the accused said: “Some three or four days he had been abusing me; without a doubt I killed him.” The case was not concerned with an admission falling short of a confession. Nothing, in my opinion, turns upon the use of the word “statement” rather than “confession”. Nor did it in Boudreau v. The King, which adopted Ibrahim as the standard to be followed in this country.

Commissioners of Customs and Excise v. Harz and Power[13] involves what are called admissions which were the result of prolonged questioning. The accused were charged with defrauding the revenue. Customs officers seized whatever books were available and then began to ask questions. One of the accused, Harz, said “We are not talking”, but the officers told him that he would be prosecuted if he did not answer and he did give certain answers on that occasion. On subsequent occasions there was further questioning and he made certain incriminating admissions. The conclusion of the House of Lords was that these admissions would not have been made unless there had been a threat of prosecution for refusal to answer, that there was no right to require Harz to submit to this prolonged interrogation and that he could not have been pro-

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secuted for refusal to answer. These are the facts of the case and I do not think that the case is authority for anything more than this, that there is no distinction in principle between a man being induced by a threat to make a full confession and a man similarly induced making merely one or more incriminating admissions. This is the extent of the case and it is so stated in Phipson on Evidence, 11th ed., (1970), para. 791. It can have no application to a case where there is a complete denial of commission of the crime as there is here.

The practical importance of the case under review is obvious. It is an essential part of work of the police to ask questions of suspects. It is only when the stage of confession is reached that the confession rules apply. If a person chooses to give the police an innocent explanation of his conduct and then at the trial goes into the witness box and gives another innocent explanation inconsistent with the first, it is entirely appropriate for Crown counsel to cross‑examine on this discrepancy and the reasons for it. This is particularly needed when an alibi is set up as a defence. There is no legislation in this country corresponding to the English legislation, s. 11 of the Criminal Justice Act of 1967, which requires the early and complete disclosure of the evidence in support of an alibi. There should be no recognition of any right on the part of an accused person to tell the police one innocent story and then tell another innocent story in the witness box without the jury knowing anything about the conflict between the two.

I would adopt the review of the problem contained in the reasons of Monnin J.A. in this case and of MacKay J.A. in Regina v. Black and Mackie, supra. I would dismiss the appeal.

The judgment of Abbott, Martland, Ritchie, Hall, Spence and Pigeon JJ. was delivered by

HALL J.—The appellant was tried before Hunt J. and a jury on an indictment charging:

That she the said Ruth Thelma Piche on or about the 1st day of November, A.D. 1968 at the City of

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St. Vital in the Eastern Judicial District in the Province of Manitoba did unlawfully murder Leslie Harrison Pascoe and thereby committed non-capital murder.

She was acquitted. The Crown appealed to the Court of Appeal for Manitoba[14] which Court (Freedman J.A. dissenting) quashed the verdict of acquittal and directed a new trial.

The issue in the Court of Appeal involved the rejection by the learned trial judge of a statement made by the appellant to the police when she was questioned shortly after the discovery of Pascoe’s body whose death was said to have occurred between 1:22 A.M. and 4:22 A.M. on the 1st day of November, 1968. The appellant had been cohabiting with the deceased for some considerable time prior to his death. After a lengthy voir dire, Hunt J. held that the statement had not been made voluntarily and did not receive it in evidence.

The Court of Appeal was asked to decide whether or not the statement was ‘inculpatory’ or ‘exculpatory’. The Crown’s position was and is that if the statement was inculpatory, the ruling by Hunt J. was not, in the circumstances of this case, subject to review; if exculpatory, the voir dire was unnecessary and the statement should have been admitted when tendered by the Crown.

In the statement given to the police the appellant said that she had not heard of Pascoe’s death until after she arrived at her mother’s home, having left the deceased fast asleep in the apartment they both occupied at or about 1:50 A.M. the same morning. The important portion of the statement read:

I lay there about five or ten minutes and couldn’t go to sleep so I got up and telephoned my mother, she was home so I told her I was coming over to her place. I then ’phoned for a taxi, Duffy’s, then went and dressed Lisa. I put a coat, a sweater, shoes and socks on her and I too got dressed. Les was still asleep. I left the house at 1.50 in the morning I think. After I arrived at my mother’s I slept on

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the chesterfield with Lisa. When I got there my mother was up and so was her boarder Maurice Laliberty. I told them we’d had a fight and that I wanted to stay with my mom.

In her testimony at the trial the appellant told a totally different story, claiming that the killing of Pascoe was accidental, that following a series of fights and unpleasant incidents between the deceased and herself she had made up her mind to commit suicide; that in furtherance of this state of mind she took a rifle from a weapon rack in the bathroom and upon seeing the deceased asleep on the living room couch decided to go and kiss him once more: that upon proceeding to do this the weapon accidentally discharged. In her statement to the police she had admitted that she knew where the rifles and the pistol were kept in the bathroom and that she knew how to open them and had taken them from the rack a week before.

In dealing with the opposite contentions, Monnin J.A., for the majority, said:

The only point in issue, as far as I am able to see, is whether this statement was exculpatory or inculpatory. The matter is not free from doubt; it has caused great difficulty to the profession and the bench over the years. With respect, the conflicting decisions have added to the confusion rather than helped to solve the problem. Clear and easily understandable guide lines are necessary.

(Emphasis added)

He proceeded to a full review of the relevant authorities as he saw them, and concluded:

Without difficulty I hold that in this case the statement was exculpatory and that consequently the rule as to confessions does not apply. It ought to have been ruled admissible without a voir dire. With respect for those who hold a contrary view, I have no hesitation in concluding that the learned trial Judge was in error in proceeding with a trial within a trial and in ruling that the statement was inculpatory.

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Freedman J.A. in his dissent said:

We should be clear on what the Crown’s submission involves. The Crown asks for the introduction in evidence of a statement which the learned trial Judge has, with justification, found to have been induced by persons in authority and which therefore could not qualify as voluntary. The finding of the Court against voluntariness makes no difference, says the Crown. Voluntary or involuntary, the statement was admissible, because it was exculpatory. So we are being invited to set aside the jury’s verdict of acquittal in order that on a new trial this involuntary, induced statement should be placed before the jury. Unless clearly obliged by law to do so a court in my view should be slow to accede to such a course.

and concluded on this aspect of the case that the Court was without jurisdiction to hear the Crown’s appeal, being of the view that the appeal did not raise a question of law in the strict sense. However, having so expressed himself, he continued:

This lends weight to the conclusion I have reached that the present appeal goes beyond a mere question of law. In the light of that conclusion I could end here by dismissing this appeal for lack of jurisdiction. But if I should be wrong in this—and the fact that the other members of the Court take an opposing view makes this a distinct possibility—it might be desirable for me to add some observations on issues that become applicable if jurisdiction to hear this appeal exists.

and came to the conclusion that in his opinion Hunt J. was right in holding the statement to be inculpatory. He then continued:

I move to another issue. Assuming, contrary to the learned Judge’s ruling, that the statement was wholly exculpatory, is it then outside the rule? Does it become admissible without any proof that it was voluntary? Yes, say most Canadian judges. No, say a few dissenters. The jurisprudence on the subject is referred to in the judgment of my brother Monnin. But, somewhat surprisingly, till now there has been no express majority opinion on the point by the Supreme Court of Canada. Hence the question may still be regarded as open. That certainly appeared to be the view of the Court of Appeal of Ontario when,

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in the relatively recent case of Reg. vs. Black and Mackie (1966) 1 O.R. 683, the majority could write thus:

It is quite clear that the rules which govern the admission of the confession relate generally to what may be called inculpatory statements; if the statement is totally exculpatory in its nature other considerations may or may not apply. The cases are in conflict on this point.

Having researched all the relevant decisions of this Court on the subject of inculpatory vis‑a‑vis exculpatory statements, I have concluded that Freedman J.A. was right when he said:

But, somewhat surprisingly, till now there has been no express majority opinion on the point by the Supreme Court of Canada. Hence the question may still be regarded as open.

(Emphasis added)

The leading authority in this Court is Boudreau v. The King[15]. This case was heard by Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock, Estey and Locke JJ. Rinfret C.J. and Taschereau J. (as he then was) expressly drew a distinction between inculpatory and exculpatory statements while Kerwin J. (as he then was) and Kellock J. implicitly accepted such a distinction. The other three members of the Court did not discuss the issue of inculpatory versus exculpatory statements.

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 rule respecting the admission of statements is a judge-made rule and does not depend

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upon any legislative foundation and I see no impediment to making the rule clear and beyond dispute.

The classic case upon which virtually all recent decisions on the subject are based is Ibrahim v. Rex[16], in which Lord Sumner said at pp. 609-610:

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. The burden of proof in the matter has been decided by high authority in recent times in Reg. v. Thompson, (1893) 2 Q.B. 12… (Emphasis added)

It is of importance to note that in this passage Lord Sumner does not qualify the word ‘statement’ in any way, but says that no statement by an accused is admissible. In Boudreau, Rand J. said at pp. 269-270:

The cases of Ibrahim v. Rex, (1914) A.C. 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?

(Emphasis added)

A rule that exculpatory statements made to a person in authority by an accused shall be subject on a voir dire to the same requirements as inculpatory statements will not handicap the

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Crown. If the statement was given voluntarily, it will be admitted: if not given voluntarily and the trial judge so rules, it will not be admitted. The confusion which appears to have plagued trial judges and appeal courts on the issue of inculpatory or exculpatory statements being admissible with or without a voir dire appears to stem from a passage in Wigmore on Evidence, 3rd ed. Wigmore concludes his discussion of the matter by saying at p. 243:

Confessions are thus only one species of admissions; and all other admissions than those which directly touch the fact of guilt are without the scope of the peculiar rules affecting the use of confessions.

Although Wigmore is an American author, the courts of the United States have not followed his view on this important aspect of the law of evidence. In Opper v. United States[17], Mr. Justice Reed, delivering the judgment of the Supreme Court, after referring to the passage from Wigmore, said:

It is urged by the Government, however, that such requirement should not apply to exculpatory statements, that is, those that explain actions rather than admit guilt. It is thought that exculpatory statements do not have behind them the pressure of coercion or the inducement of escaping the consequences of crime. This accords with Professor Wigmore’s view. See note 7, supra. The statements here are exculpatory. See summary, supra. There is no opinion of this Court declaring or declining such an exception. We conclude that exculpatory statements, however, may not differ from other admissions of incriminating facts. Given when the accused is under suspicion, they become questionable just as testimony by witnesses to other extrajudicial statements of the accused.

The same position was taken by Mr. Justice Brennan in the Supreme Court in Wong Sun v. United States[18], when he said:

The Government also contends that Toy’s declarations should be admissible because they were

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ostensibly exculpatory rather than incriminating. There are two answers to this argument. First, the statements soon turned out to be incriminating, for they led directly to the evidence which implicated Toy. Second, when circumstances are shown such as those which induced these declarations, it is immaterial whether the declarations be termed ‘exculpatory’. Thus we find no substantial reason to omit Toy’s declarations from the protection of the exclusionary rule.

Of greater significance is the very recent decision in the House of Lords in Commissioners of Customs and Excise v. Harz et al.[19] In that case, Harz was the central figure of an alleged conspiracy involving an agreement to defraud the Department of Revenue by covering up the real amount of trading in goods which were subject to purchase tax. The Crown wished to put in as evidence statements made to customs officers as well as data extracted from their books. The House of Lords held that under the statute involved the officers had no right to submit the trader to interrogation. However, there were very strong dicta concerning the common law position. Lord Reid at pp. 817-818 said:

Then it was argued that there is a difference between confessions and admissions which fall short of a full confession… 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… 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. And it is noteworthy that the new Judges’ Rules published in 1964 (Home Office Circular No. 31/1964, p. 5) make no such distinction. They are clear and emphatic:

…(e) That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person

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to a question put by a police officer, or of any statement (my italics) made by that person that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression. The principle set out in paragraph (e) above is overriding and applicable in all cases.

The above paragraph “(e)” taken from the Judges’ Rules is quoted verbatim in Phipson on Evidence, 11th ed., 1970, para. 791, p. 349, and the learned author continues by saying:

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 at pp. 609-10. “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 had 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 Reid also discussed the landmark case of Ibrahim v. The King and noted that it made no distinction between confessions and admissions. That case held that no statement is admissible unless made voluntarily. Phipson emphasizes this fact in footnote 5 on p. 349 where he says: “Note, too, the principle formulated by Lord Sumner commences with the words ‘no statement’…”

On the basis that there is no distinction to be drawn between inculpatory and exculpatory statements as such in so far as their admissibility in evidence when tendered by the Crown is concerned, I would allow the appeal and restore the verdict of acquittal rendered by the jury.

Appeal allowed, FAUTEUX and JUDSON JJ. dissenting.

Solicitor for the appellant: S.M. Froomkin, Ottawa.

Solicitor for the respondent: The Attorney General for Manitoba, Winnipeg.