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Evidence - Admissions (includes Confessions) (4). R. v. Ordonio [SOR]
In R. v. Ordonio (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a conviction of "one count of first degree murder".
Here the court considers the appellate SOR for the voluntariness of confessions, including where the interrogation is videotaped:VI. THE STANDARD OF APPELLATE REVIEW
[63] Ascertaining the appropriate legal test to determine whether a confession is voluntary is a question of law; applying the appropriate test to determine whether a particular statement was or was not voluntary is a question of fact or of mixed law and fact. “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 para. 33; Beaver, at para. 54.
[64] This standard of review 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”: Tessier, at para. 43.
[65] Consequently, mere disagreement by the appellate court with the trial judge regarding the weight to be given to various pieces of evidence is not a ground to reverse a finding on voluntariness: Oickle, at para. 22; Sopinka, at §8.164.
[66] This standard of appellate review applies even in cases, such as the present one, where the taking of an accused’s statement was videotaped and the appeal court can watch the entire interrogation. As the Supreme Court noted in Spencer, at para. 17, even where the interrogation is videotaped, other evidence may be heard during the voir dire on admissibility. In those circumstances, the testimony and cross-examination of those involved in the taking of the statement usually are important factors the trial judge is required to weigh in the overall inquiry into voluntariness. In Spencer the court viewed trial judges as sitting in the best position to draw conclusions from such evidence given that they deal with making findings of fact on a daily basis, as well as their privileged position in assessing the evidence as a whole.
[67] That said, the ability of an appeal court to watch the same recording of an interrogation as used by the trial judge enables it to gain a depth of understanding about the interrogation process otherwise not achievable from a mere transcript review. That, in turn, places the appeal court in an improved position to assess arguments that the trial judge made palpable and overriding errors, failed to consider the entirety of the evidence regarding the interrogation, or failed to assess the cumulative effect of the questioning. . R. v. Ordonio
In R. v. Ordonio (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a conviction of "one count of first degree murder".
Here the court usefully considers common law 'confession' doctrine:IV. THE PRINCIPLES GOVERNING THE ADMISSION OF A CONFESSION
[25] The common law confessions rule provides that any statement of the accused to a person in authority, which affords relevant and material evidence in respect of its maker, the accused, is inadmissible at the instance of the Crown unless the Crown proves on a voir dire, beyond a reasonable doubt, that the statement was voluntary: Matthew Gourlay et al., Modern Criminal Evidence (Toronto: Emond, 2022), at p. 419; David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2023), at §37.04. As put by the authors of Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th Ed.,[4] at §8.71: “Reduced to its essentials, the voluntariness inquiry focuses predominantly, though not exclusively, on the ability of the accused to make a meaningful choice whether or not to confess” (footnotes omitted).
[26] The common law rule historically contained several threads, each based on different policy considerations. Over the past 30 years several decisions of the Supreme Court of Canada have organized those threads into a settled rule, starting with R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151; then developing through R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317; and R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575.
[27] The common law rule seeks to protect against false confessions: voluntariness is the touchstone of the rule but this concept overlaps with, yet is not necessarily co-extensive with, reliability: Oickle, at paras. 47 and 69. “On the question of voluntariness … the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will”: Singh, at para. 36. The confessions rule also seeks to protect the rights of the person charged without unduly limiting society’s need to investigate and solve crime: Watt, §37.04. In sum, the rule strives for a balance between, on the one hand, the rights of the accused to remain silent and against self-incrimination and, on the other, the legitimate law enforcement objectives of the state relating to the investigation of crime: Tessier, at para. 69.
[28] The jurisprudence teaches that the rule should not be applied mechanically to the facts of a particular case. Instead, a judge must examine and evaluate all the circumstances surrounding the making of the statement. The approach is contextual. The evidence must satisfy the judge beyond a reasonable doubt of the voluntariness of the confession in order for it to be admissible: Sopinka, at §8.72; Watt, at §37.04; Singh, at para. 53.
[29] Tessier, at para. 68, contains a succinct summary of the factors usually considered in a voluntariness inquiry:The law relating to the modern confessions rule in Canada is settled. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. The Crown bears the persuasive or legal burden of proving voluntariness beyond a reasonable doubt. The inquiry is to be contextual and fact-specific, requiring a trial judge to weigh the relevant factors of the particular case. It involves consideration of “the making of threats or promises, oppression, the operating mind doctrine and police trickery”. These factors are not a checklist: ultimately, a 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. [Citations omitted; emphasis added.] [30] Even though some circumstances may be conveniently collected under the four categories of inducements, oppression, operating mind, and police trickery, the existence of a particular circumstance in a case may not automatically render a statement admissible or inadmissible: Sopinka, at §§8.72-8.73. As put by Watt at §37.04: “Context controls”.
[31] Regarding the factor of oppression, Watt notes that there is no exhaustive list of what acts or omissions of a police interviewer might create an oppressive atmosphere, but he writes that there can be no doubt that “[a]mongst the many factors that can create an atmosphere of oppression are (i) depriving D [the defendant] of food, clothing, water, sleep or medical attention; (ii) denying D access to counsel; (iii) excessively aggressive, intimidating questioning over a long time; and (iv) the use of nonexistent evidence”: Watt, at §34.07; see also Tessier, at para. 99.
[32] That the trial judge must take into account all the circumstances that surrounded the making of the statement was emphasized in Oickle, at para. 47:The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession. [Emphasis added.] [33] And again, at para. 68, the court in Oickle stated:If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. [Emphasis added.] [34] To summarize, the confessions rule jurisprudence makes two key points. First, the rule seeks to protect against false confessions. Second, the rule directs courts to inquire into all the circumstances surrounding the making of a confession and red-flags, for a court’s consideration, a wide variety of circumstances traditionally grouped under the categories of inducements, oppression, operating mind, and police trickery.
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The trial judge’s failure to consider the circumstances of the interview as a whole
[94] I am persuaded by the appellant’s submission that the trial judge failed to consider the circumstances of the interview as a whole and assess the cumulative effect of the 13-hour interrogation on the Statement’s voluntariness.[19]
[95] The jurisprudence on the confessions rule stresses that when considering whether a statement was made voluntarily, a court must consider all of the circumstances surrounding the making of the statement. And, indeed, the trial judge recognized that a confession analysis must consider all relevant factors, both in regard to police conduct and to its effect on a suspect’s ability to exercise his free will: at paras. 75-76. However, in my view the trial judge erred in her application of that principle.
[96] Oickle identified “excessively aggressive, intimidating questioning for a prolonged period of time” as one factor that can create an atmosphere of oppression: at para. 60. The present case certainly involved questioning for a prolonged period of time – almost 13 hours – and the video records numerous instances of aggressive questioning, many prolonged. In such circumstances, the assessment of the voluntariness of the Statement necessarily required the trial judge to examine the cumulative impact of prolonged, aggressive questioning. In my respectful view, the trial judge failed to do so in the present case.
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[112] While Oickle requires any judicial assessment of voluntariness to take into account all the circumstances surrounding the making of a statement, Oickle recognizes that oppressive conditions, on their own, are capable of producing false confessions stating, at para. 58:Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.
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