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Civil and Administrative
Litigation Opinions
for Self-Reppers


Criminal - Voluntariness

. R. v. Ahmed

In R. v. Ahmed (Ont CA, 2023) the Court of Appeal considered the appellate deference for the criminal issue of 'voluntariness':
[23] In R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at para. 43, the court held that where the correct test is applied, "A finding of voluntariness calls for deference unless it can be shown that it represents a palpable and overriding error." The analysis is a contextual one “in which bright-line rules are few”.
. R. v. Barac

In R. v. Barac (Ont CA, 2023) the Court of Appeal considered the issue of voluntary statements, here on a US border crossing:
(2) The appellant’s answers to the BSOs’ questions were voluntary

[43] The appellant submits that his answers to the questions he was asked at the border were involuntary at common law and therefore inadmissible at trial. The core of his argument is that the compulsion to answer truthfully under the Customs Act operates as a threat within the meaning contemplated in R. v. Oickle, 2000 SCC 38, [2002] 2 S.C.R. 3. The appellant does not allege a violation of his s. 7 Charter right against self-incrimination, nor does he challenge the constitutionality of the Customs Act.

[44] It is settled law that statutory compulsion, on its own, does not render a statement involuntary at common law for the purpose of criminal proceedings: Walker v. The King, 1939 CanLII 2 (SCC), [1939] S.C.R. 214, at p. 217; Marshall v. The Queen, 1960 CanLII 18 (SCC), [1961] S.C.R. 123; R. v. Slopek (1974), 1974 CanLII 1553 (ON CA), 21 C.C.C. (2d) 362 (Ont. C.A.), at p. 365. The fact that the Customs Act allows for the imposition of fines and imprisonment makes no difference. So does the Highway Traffic Act, R.S.O. 1990, c. H.8, which was the statute at issue in Walker, Marshall, and Slopek.

[45] The appellant does not point to any other source of threat. Nor does he allege that the border authorities involved in this case made promises or created an atmosphere of oppression that could raise a reasonable doubt as to the voluntariness of his statements. Accordingly, this ground of appeal must fail.
. R. v. Groves

In R. v. Groves (Ont CA, 2023) the Court of Appeal considered the voluntariness of statements:
[31] An assessment of the voluntariness of a statement requires a contextual consideration of any whether there were threats or promises, oppression, an operating mind, or other police trickery: R. v. Oickle, 2000 SCC 38, 147 C.C.C. (3d) 321, at paras. 69-71. The approach to be taken by an appellate court in its assessment of a trial judge’s finding of voluntariness was recently restated by the Supreme Court of Canada in R. v. Tessier, 2022 SCC 35, at para. 43:
A finding of voluntariness calls for deference unless it can be shown that it was tainted by a palpable and overriding error. An appellate court may only intervene where the error is overriding and determinative in the assessment of the balance of probabilities with respect to that factual issue. The standard of review associated with the finding of voluntariness is tied to the idea that the analysis under the confessions rule must be a contextual one in which bright line rules are few. Where the law is properly understood and the relevant circumstances considered, the trial judge is best placed to measure that context and make the relevant findings. [Citations omitted.]
. R. v. Bharwani

In R. v. Bharwani (Ont CA, 2023) the Court of Appeal considers the doctrine of voluntariness:
(b) The law of voluntariness

[216] The voluntariness doctrine is only triggered where the recipient of the statement is a person in authority. Only where this is established must the Crown prove beyond a reasonable doubt that the statement was voluntary: R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 48; R. v. T.(S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 20, 22; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 35; R. v. Oickle, 2000 SCC 38, [2000] S.C.R. 3, at paras. 41-71; and R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at paras. 39, 68.

[217] There is no absolute definition of a person in authority. While those in authority tend to be individuals involved in the arrest, detention, interrogation or prosecution of the accused, others can fall within this list: Hodgson, at para. 32; R. v. A.B. (1986), 1986 CanLII 4624 (ON CA), 26 C.C.C. (3d) 17 (Ont. C.A.), at p. 26. The test is a largely subjective one, inquiring into “whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment”: Grandinetti, at para. 38.

[218] However, there is also an objective component that accompanies the subjective. For the receiver of a statement to be categorized as a person in authority the accused’s subjectively-held belief must be reasonable: Hodgson, at para. 34; Grandinetti, at paras. 37-39.

[219] There is nothing to support the suggestion that a psychiatrist is necessarily a person in authority. While some courts have found that a psychiatrist is a person in authority, those cases turn on their specific facts: R. v. Getkate, [1998] O.J. No. 6329 (Gen. Div.); R. v. Feldberg, 1999 ABQB 738, 252 A.R. 158; R. v. Leggo, 2003 BCCA 392, 133 C.C.C. 149; and R. v. Fowler (1982), 1982 CanLII 3843 (NL CA), 4 C.C.C. (3d) 481 (Nfld. C.A). Other decisions have concluded that psychiatrists are not persons in authority: R. v. Bertrand (1991), 1991 CanLII 7392 (ON SC), 2 O.R. (3d) 659 (Gen. Div.); R. v. Perras (1972), 1972 CanLII 868 (SK CA), 8 C.C.C. (2d) 209 (Sask. C.A.), aff’d 1973 CanLII 157 (SCC), [1974] S.C.R. 659; and R. v. Parnerkar (1974), 1974 CanLII 1521 (SK CA), 17 C.C.C. (2d) 113 (Sask. C.A.). Therefore, a case-specific analysis is required.


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Last modified: 04-07-23
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