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Criminal - Voluntariness. R. v. Osborne
In R. v. Osborne (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here argued on whether a statement to police had been induced, and thus was not voluntary:Quid Pro Quo
[25] The appellant submits that DC Reesor offered a quid pro quo inducement, which was, if he admitted his involvement in Mr. Pringle’s death he would not be charged with first-degree murder (which would lead to a lesser sentence and allow him to see his dog sooner). The appellant acknowledges that this was not expressly promised but submits that if we “examine the entire context of the confession”, per R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, paras. 54, 71; R. v. Spencer, 2007 SCC 11, [2000] 1 S.C.R. 500, para. 15, the inevitable conclusion is that there was a quid pro quo and that consequently his statement was not voluntarily. According to the appellant, the officer gave him the “hope of advantage”.
[26] In Oickle, at para. 49, Iacobucci J. recognized that a promise made by a person in authority to take steps to secure a more lenient sentence in exchange for a confession would constitute a “hope of advantage” inducement:[I]n Ibrahim the Privy Council ruled that statements would be inadmissible if they were the result of “fear of prejudice or hope of advantage”. The classic “hope of advantage” is the prospect of leniency from the courts. It is improper for a person in authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses. Therefore in Nugent, … the court excluded the statement of a suspect who was told that if he confessed, the charge could be reduced from murder to manslaughter. … In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession. [Citations omitted] [27] As mentioned, there was no express promise made in this case to reduce the first-degree murder charge in exchange for the appellant’s statement. When the officer told the appellant that he should “maybe” not be charged with first-degree murder if he did not attend Mr. Pringle’s home with the intention to kill him, this was a true and accurate statement, not a promise. As the court similarly explained in R. v. Dixon, 2018 BCCA 181, advising an accused that they “might not be charged” if they give a statement is not a promise, but an explanation of circumstances: Dixon, at para. 25. And as the trial judge noted, the appellant was not told by the officers that his charge “would” be reduced if he confessed, or that they had authority to reduce the charge, or that they would attempt to persuade the Crown or the court to do so. “They made no express offer at all”.
[28] An inducement need not be expressly made. It may be implicit, see R. v. Wabason, 2018 ONCA 187, 361 C.C.C. (3d) 98. The question here is whether, upon a complete review of the exchange between the appellant and DC Reesor, and after placing the appellant’s statement in its proper context, the police nonetheless implicitly promised to takes steps to secure a lesser charge (i.e., manslaughter) which would allow him to get home sooner to see his dog. The trial judge considered this question and found that the observation that the appellant’s jeopardy may be less if he had not gone to Mr. Pringle’s home with the intention of killing him was not a promise to reduce the charge. It was open to the trial judge to find that there was no such implied inducement here.
[29] In coming to this decision, the trial judge considered the “problematic suggestion” made to the appellant that “it would be better if you confessed”, language that has been criticized, including in Oickle, at para. 55. Such comments are relevant, but not determinative. As the trial judge noted, “it would be better” comments require exclusion only where the circumstances reveal an implicit threat or promise. The trial judge found there was none.
[30] Even if there has been an inducement, this alone is not a basis for exclusion. An inducement will require exclusion only if “standing alone or in combination with other factors” it is “strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at para. 57. In Spencer, for example, the inducement was not strong enough in all of the circumstances, including Mr. Spencer’s subjective characteristics, to have caused the confession. As the trial judge put it, “[w]hat is pivotal is the strength of the inducement or threat, considered in the overall context”: see Spencer, at para. 19. Here, the trial judge found, after considering the overall context, that he did “not think that [the appellant] would have understood that he was being promised more lenient treatment in exchange for a confession.”
[31] The trial judge also found that the appellant confessed not because of any inducement but because of the strength of the case against him. This finding was supported on the record. It is important to note in this regard that the police, before they commenced their interview of the appellant, likely had enough evidence to support a murder charge, and that, probably from the outset (but most certainly as the interview progressed), the appellant came to understand that he was in serious jeopardy.
[32] In coming to these decisions and finding that the Crown had proved the confession to be voluntary, the trial judge considered the overall context. What, then, is the context? What we know is that the appellant was advised, at the time of his arrest, that he had the right to speak with counsel; that he was, at the same time, advised of his right to remain silent; that after his arrival at the police station he was again told that he could speak with counsel; that he did in fact speak with counsel before being interviewed; and that prior to speaking with DC Reesor the appellant was not subjected to any violence or threats nor was he promised anything. We also know that the police questioning was not particularly aggressive, and that, at least according to the appellant, he had not consumed any drugs or alcohol (other than marijuana) over the course of the preceding 24 hours. These factors are relevant not only to whether there were oppressive circumstances, but also to the question of what impact an inducement, if there was one, had on the appellant.
[33] We see no basis for interfering with the factual determinations we have just described. As the Supreme Court held in Oickle, “if a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for ‘some palpable and overriding error which affected [the trial judge’s] assessment of the facts’”: Oickle, at para. 71, citing Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at p. 279. The trial judge committed no such error and there is accordingly no basis for appellate intervention.
[34] The appellant does raise one potential error of principle in the trial judge’s application of the voluntariness test. He argues that the trial judge erred by suggesting that only where an officer offers a definitive inducement is a confession involuntary. As the foregoing discussion makes clear, the trial judge did not suggest this. Rather, he did as the Supreme Court in Oickle directed him to do, and that is focus on the “entire context of the interview” which led him to conclude that the appellant would not have understood that he was promised more lenient treatment in exchange for his statement. As the trial judge observed, the overarching context here is the police had evidence that tended to support a murder charge; the police were merely making truthful references to the state of affairs; and, against that backdrop, the appellant made the voluntary decision to set the record straight and make it clear that he did not attend at Mr. Pringle’s home with the intention of killing him.
[35] In our view, the trial judge did not err in finding that the Crown had proven beyond a reasonable doubt that the appellant’s statement to the police was voluntary. . 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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