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Criminal - Confessions

. R. v. Beaver

In R. v. Beaver (SCC, 2022) the Supreme Court of Canada considers the common law (ie. non-Charter) confessions doctrine:

(1) The Common Law Confessions Rule

(a) General Principles

[45] The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary (Oickle, at paras. 30 and 68; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11; Tessier (SCC), at paras. 39, 68 and 89). Under the confessions rule, an involuntary confession “always warrants exclusion” (Oickle, at para. 30; see also R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 38). But a voluntary confession need not always be admitted into evidence. If a voluntary confession was obtained in a manner that breached the Charter, it can still potentially be excluded under s. 24(2) (Oickle, at para. 30; Singh, at para. 38).

[46] At the heart of the confessions rule is the delicate balance between individual rights and collective interests in the criminal justice system (Singh, at paras. 1, 21, 27-28, 31 and 34; Tessier (SCC), at paras. 4 and 69; Oickle, at para. 33). The “twin goals” of the rule involve “protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes” (Oickle, at para. 33). On the one hand, the common law recognizes an individual’s right against self‑incrimination and right to remain silent, such that an individual need not give information to the police or answer their questions absent statutory or other legal compulsion; on the other hand, the police often need to speak to people when discharging their important public responsibility to investigate and solve crime.

[47] Voluntariness, broadly defined, is the “touchstone” of the confessions rule (Oickle, at paras. 27, 32 and 69; Spencer, at para. 11; Singh, at para. 31). Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justice system (Oickle, at paras. 32 and 70; Singh, at paras. 30 and 34; Tessier (SCC), at paras. 70 and 72). A statement may be involuntary “because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence” (Tessier (SCC), at para. 70).

[48] The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority” (Tessier (SCC), at para. 68). The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry (see Oickle, at paras. 47, 66-67 and 71; Spencer, at paras. 11-12; Singh, at para. 35; Tessier (SCC), at paras. 5, 68, 76 and 87).

(b) Oppression

[49] Oppression focusses on the atmosphere of a police interview. This Court has accepted that “[o]ppression clearly has the potential to produce false confessions” because a suspect may “confes[s] purely out of a desire to escape [inhumane] conditions” (Oickle, at paras. 58 and 60). The non-exhaustive factors that can create oppressive conditions include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; or excessively aggressive, intimidating police questioning for a long time (Oickle, at paras. 58-60; Tessier (SCC), at para. 99).

(c) The Role of a Police Caution

[50] The role of a police caution in the voluntariness analysis was recently clarified in Tessier (SCC), where Kasirer J. affirmed, at para. 5, that “the presence or absence of a police caution is an ‘important’ factor in answering the question of voluntariness”, based on Charron J.’s guidance in Singh, at para. 33 (see also Singh, at para. 31; Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262, at p. 267).

[51] In Tessier (SCC), Kasirer J. explained that if the accused was a suspect, the absence of a caution is prima facie evidence of — but does not itself establish — involuntariness (paras. 11 and 89). Neither a caution nor proof of actual knowledge of the right to silence is a necessary condition of voluntariness (Tessier (SCC), at paras. 12 and 74; see also Singh, at paras. 31 and 33; Boudreau, at p. 267). Nevertheless, the absence of a caution “weighs heavily” in the voluntariness analysis because it is “prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary” (Tessier (SCC), at para. 11).

[52] When the police have not given a caution, the Crown must “show that the absence of a caution did not undermine the suspect’s free choice to speak to the police as part of the contextual examination of voluntariness” (Tessier (SCC), at para. 8). The absence of a caution may be afforded less weight when the suspect subjectively understood the right to silence or the consequences of speaking to the police. Kasirer J. provided the following guidance in Tessier (SCC), at para. 88:

While not necessary for the Crown to demonstrate, proof that the accused was in fact subjectively aware of their right to silence or aware of the consequences of speaking will be powerful evidence that the absence of a caution did not undermine voluntariness. In such an instance, doubts as to fairness that could result from the absence of a caution plainly do not arise because the suspect has the information necessary to choose whether to speak or remain silent.

[53] Some of the non-exhaustive factors that can help show the suspect was subjectively aware of their right to silence or of the consequences of speaking to the police include (1) the suspect’s awareness of being recorded; (2) indications that the suspect is directing the conversation; (3) the suspect’s awareness of what is being investigated and their alleged role in the investigation; (4) the suspect’s exercise of the right to silence by declining to answer police questions; and (5) the suspect’s eagerness to talk, although this factor can weigh for and against such a finding, depending on the circumstances (Tessier (SCC), at para. 88).

[54] Absent an error of law in relation to the applicable legal principles, a trial judge’s application of the voluntariness framework is a question of fact or of mixed fact and law attracting appellate deference (Oickle, at para. 22; Spencer, at paras. 16-18; Tessier (SCC), at para. 46). Mere disagreement with the weight given to various items of evidence is not a basis to reverse a trial judge’s finding of voluntariness (Oickle, at para. 22).